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A Suggestion on the Collatio
Published online by Cambridge University Press: 04 July 2014
Extract
1. The collection of Biblical and Roman legal texts, usually called Mosaicarum et Romanarum legum Collatio, has been the subject of countless studies and commentaries since 1573 and particularly in the last 170 years. The serious researches of this second period, starting from 1822, have been carried out by prominent authors and deserve careful consideration. Nevertheless some questions are still unsolved and, above all, new ideas, new viewpoints, new ways of study can be suggested. Of course, I do not intend undertaking such an arduous work in this paper: it is a task for younger and more specialized researchers. As for me, I shall confine myself to the attempt of adding some accuracy to a rough suggestion I put forward on the subject two years ago, while trying to outline a general picture of the relationship between Roman law and legal comparison.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1995
References
1 The manuscripts, on the contrary, bear, as is well-known, a different title: “Lex Dei quam (quod) praecepit Dominas ad Moysen”.
2 Year of its publication in Paris by Pierre Pithou, who had found the manuscript three years earlier in a very ancient library of Central France. That manuscript was lost soon after its publication and only in 1838 was identified in a manuscript bought by the Berlin Library (since Th.Mommsen's philological description in Collectio librorum iuris anteiustiniani, (Berlin, 5th ed., 1890) vol. III, 109 ff., it is known as manuscript B). Meanwhile two other manuscripts had been discovered (infra n. 3).
3 In 1822, indeed, two new manuscripts were discovered, one in Vercelli (manuscr. V), another in Salzburg and is kept in Vienna (manuscr. W). They relate almost entirely to the same text as the previous one and are similarly interrupted about the end of the XVIth title. Schulz, F., “The Manuscripts of the ‘Collatio legum Mosaicarum et Romanarum’”, in Symbolae van Oven (Leiden, 1946) 313 ff.Google Scholar and in BIDR (1951) 50 ff. (whence I am quoting) has attempted to show their relationships between each other and with a supposed earlier archetype as well.
4 Diritto romano e diritto comparato, in Incontro con Giovanni Pugliese (18 aprile 1991), (Milano, 1992) 117–119. My suggestion has been substantially accepted by Barone-Adesi, G., L'età della “Lex Dei”, (Napoli, 1992) 23 f.Google Scholar, 194, although the main lines of his book, founded on a sound knowledge of the religious history between the III and VI centuries A.D., in part still follow the pattern of the apologetic theory.
5 Among these exceptions, I particularly mention Blume, F., “Lex Dei etc.”, in Fontes luris Romani Anteiustiniani (Bonn, 1835)Google Scholar who, like other scholars of the XIX cent., ascribed our collection to a Christian composer, but, instead of an “apologetic” purpose, thought of a practical one and accordingly guessed it was used in the episcopalis audientia.
6 In the second case, of course, the composer of the Collatio was necessarily a Christian. That, indeed, had been the opinion of all the scholars before Volterra, E., “Collatio legum Mosaicarum et Romanarum”, in Rend. Acc. Lincei, Ser.VI, Vol. III, 1, (Roma, 1930)Google Scholar and still is the opinion of recent authors, such as, for instance, Liebs, D., Die Jurisprudenz in der Spätantike Italiens, (Berlin, 1987) 162 ffGoogle Scholar, Pieler, P. E., Lex Christiana, in Akten des 26. Deutschen Rechtshistorikertages, (Frankfurt a.M., 1987) 485 ff.Google Scholar, Schrage, E. J., “La date de la ‘Collatio legum Mosaicarum et Romanarum’ étudiée d'après les textes Bibliques”, in Mélanges Wubbe, (Fribourg, 1993) 401 ff.Google Scholar They maintain: a) that the Collatio aimed at inducing the still heathen senators to accept Christianity (Liebs); b) that it was part of a far-reaching plan to make Roman law Christian (Pieler, also Liebs's second hypothesis, according to which the Collatio had been planned and sponsored by Pope Siricius); c) that its purpose was to display the consciousness, reached by many Christians in the V century, of the relationship between Christianity and the cultural heritage of classical Antiquity (Schrage).
7 The purpose imagined by Schrage is not exactly “apologetic”, but can be considered as a particular shade of such a purpose.
8 That could be confirmed by the indication Liber Primus, witnessed by manuscript W and possibly read in an earlier manuscript by Hincmar, , archbishops of Reims in the IX century (De divortio Lotharii et Tetbergae, in Opera, Sirmond, , ed. (Paris ii, 1645) I, 634 f.Google Scholar, now in Migne, , Patrologia lat. vol. 125, 697Google Scholar). This interpretation, however, is not sure. With regard to the manuscript read by Hincmar, Archbishop, von Savigny, F. C., Geschichte des römischen Rechts im Mittelalter, (Wiesbaden-Bieberich, 2nd ed., 1834) II, 281)Google Scholar thought that the lex romana quoted by him was a long manuscript, which included the Collatio followed by the Lex Romana Visigothorum, so that Liber Primus would have been the whole Collatio and Liber secundus the Lex Romana Visigothorum. Really, in manuscript W the words “Liber Primus” follow the title “Lex Dei….”, so that they could (or should) be referred to a part of the Collatio. But that opinion is not shared by the majority of scholars.
9 This is probable, for the Roman treatises ad Sabinum, certainly dealing with ius civile (the Roman core of private law), began with the law of succession (cf. Lenel, O., Palingenesia, I, 1251Google Scholar ff.; II, 86 ff., 1021 ff.) and went on to deal with the other ius civile. The Collatio may have followed the same order (so called Sabinus system). This is not contradicted by the fact that in Sabinus system intestate succession followed long discussions on succession under will, while the Collatio begins with intestate succession and does not mention will. The reason seems to be that Mosaic law did not know any succession under will (Num. XXVII, XXXVI).
10 D. Liebs, Jurisprudenz, supra n. 6, at 163, denies the possibility of any modification of the original text, which, according to him, was compiled after 390; similarly E. J. H. Schrage, La date, supra n. 6, at 416. An analytical examination, however, can bring to light, not exactly a stratification, but, as we shall see, some additions to that text.
11 Supra n. 4.
12 They were, in other words, rules of the Torah. I do not deal either with the question of their translation from the Septuaginta Greek version or with that of the composer possibly adapting the words of those rules, so that they could better correspond to Roman law, as E. Volterra, Collatio, supra n. 6, at 54 ff. suggested. Nonetheless I shall consider Schrage's opinion, almost entirely based on the latin words of the translation (below).
13 A fourth “annotation”, as Barone, Lex Dei, supra n. 4, at 177 ff. calls them, can be found in 14,3,6, but it does not compare in any way the lex Dei with Roman law. On the contrary, the author compares two Roman sources, namely a Paulus' passage from the V. book of his Sententiae and the so called novellae constitutiones enacted by Constantine (cf. CTh. 9, 18, 1) or by his immediate successors. It is therefore an annotation, that does not count from our standpoint.
14 This statement, like 6,7,1, is placed at the end of the title, instead of at the beginning, and it is reasonable to guess that it was added afterwards, when Theodosius I punished male prostitution very heavily; but, as aforesaid, there are scholars, who infer the date of the Collatio from the date ofthat constitution and therefore ascribe the statement of Coll.5,3 to its original composer (see below). At any rate, before 390 male prostitution was not singled out as a particular crime in Rome and the punishment for homosexuality, except the case of stuprum in invitum (Coll. 5,2,1), was lighter (see Dalla, , Ubi Venus mutatur - Omosessualità e diritto nel mondo romano, (Milano, 1987) 51 ff.Google Scholar; 101 ff.; 116 ff.). D.Liebs (one of the scholars who postpone the date of the Collatio until after the enactment of the constitution of Theodosius I) says (Jurisprudenz, 163) that the fifth title of Collatio would be, without §3 and Theodosius I's constitution, “nicht schlüssig” (not conclusive). That seems to me not true, for Paulus' passage, which relates the Roman rules in force at the beginning of postclassical period, is the exact and in itself sufficient counterpart of Moyses' rule. Paragraph 3 begins, indeed, by saying: “Hoc quidem iuris est”; and then remarks that, instead, the subsequent Theodosius' constitution completely follows Moyses' spirit.
15 The less stern and frequently changed Roman rules concerning incest are shown by the jurists' passages and imperial constitutions related before (6, 2,1–6,6.1); see also, recently, Franciosi, G., II regime delle nozze incestuose nelle Novelle giustinianee, in Estudios Iglesias, (Madrid, 1988) 723 ff.Google Scholar: Puliatti, S., Ricerche sulle Novelle di Giustino II, II, (Milano, 1991) 3 ff.Google Scholar The author of fragment 6, 7, 1, which, like 5, 3, seems to be an addition to the original collection, particularly points out Moses' statement that divine “malediction” will strike any person guilty of incest.
16 The decemviral rule was wider than the Mosaic one as it considered also day-theft using weapons; Moses, on the contrary, referred only to a thief breaking at night the wall of a room, where he wanted to steal. There was, anyway, similarity between those rules. But the statement is interesting, above all, for very probably it already existed in the original collection and was addressed to the iuris consulti (“scitote, iuris consulti, quia Moses prius hoc statuii”).
17 See supra n. 13.
18 Some scholars say that originally the Collatio began with an introduction, where its purpose could be explained. In this sense particularly F. Schulz, Manuscripts, supra n. 3, at 312 in that introduction “no doubt the author and his purpose were declared”. For such an introduction there was no place in the manuscripts, which, on the other hand, bear no sign of having been erased, deleted, cancelled. Previous editions may have omitted that introduction; but no evidence can be adduced thereof. By contrast, it is clear enough that the original Collatio had further titles, which are missing.
19 These are the well-known classical jurists, whose quotation was permitted by the Law of Citations of 426. According to E. J. Schrage. Mélanges Wubbe, supra n. 6, at 416, this fact confirms that the Collatio was composed after 426; but also earlier collections of legal texts, such as the Vaticana Fragmenta, utilize only those five jurists, as. for instance, I have pointed out in 1962 (Problemi e orientamenti attuali nello studio del diritto romano, now in Scritti giuridici scelti, III, Napoli, 1985).
20 It is the afore-mentioned constitution of 390 in Coll.5, 3, which was enacted about a century after those Codes. One of the manuscripts bears a short, but meaningful, addition: Item Theodosianus. Surely this addition can have been written only more than 48 years later, just after the enactment of the Theodosian code, into which a shortened version ofthat constitution was duly inserted. If we accept the suggestion that the Collatio known to us consist of the original text and of some subsequent additions and revisions, we cannot see any reasons for judging these two words as an “interpolation”. These words, on the contrary, must have been added by lawyers, who continued to use the Collatio in the fifth century (see in this regard G. Barone-Adesi, L'età della “Lex Dei”, supra n. 4, at 188 f.).
21 That is pointed out by D. Liebs, Jurisprudenz, supra n. 6, at 162, who, nevertheless, does not notice the enormous disproportion between the share devoted to Roman texts and the supposed purpose of praising the high qualities of Biblical law in comparison with Roman law.
22 Five titles comprise only two Roman texts, which are, however, often rather long; in the others the Roman texts are five or six on the average and reach even the number of twelve.
23 According to Schulz, F., History, 314Google Scholar and Idem., “The Manuscripts of the ‘Collatio legum Mosaicarum et Romanarum’”, in BIDR (1951) 50 ff. a theological purpose is indisputable. It is, however, difficult to understand how this prominent scholar could come to this opinion after the accurate remark that the author shows no bias towards either Judaism or Christianity. Other scholars, in any case, have similarly ascribed to our collection a religious purpose and/or an ecclesiastical origin as well in the past (cf., for instance, Huschke, Ph., “Ueber Alter und Verfasser der Legum Mosaicarum et Romanarum collatio nebst kritischen Beiträgen zum Text der selben”, in (1846) 13 Zeitschr.f.geschichtl.Rechtswiss. 24 ff.Google Scholar; Rudorff, A. F., “Ueber den Usprung und Bestimmung der lex Dei”, in Abhandl.Kön.Ak. Wiss. Berlin, (Berlin, 1868)Google Scholar as in recent years (cf., for instance, D. Liebs, Jurisprudenz, supra n. 6; P. E. Pieler, Akten des 26.Deutsch. Rechtshistorikertages, supra n. 6, at 485 ff ; E. J. Schrage, Mélanges Wubbe, supra n. 6, at 401 ff.
24 Roman heathens, though converted to Christianity, obviously belonged to Roman culture and would not have to be helped to learn and apply Roman law. On the other hand, also the Manichees, generally speaking, ought to be included in that list, but, with reference to the Collatio, they, instead, must be left aside for the conclusive reason that they had no relationship with the Bible.
25 The communities, where the afore-said problems were solved in the way explained below, are likely to have been more than one, as the solution found in one of them (some scholars think of the community seated in Rome). It is not impossible, however, that in some of the communities spread out in the Empire those problems had been solved in different ways.
26 This “own law” was, as we have assumed, a religious one, for the religion of the community in question (either Jewish or primitive Christian) permeated its law: that is why it was called lex Dei.
27 With regard to the Collatio, such as preserved in the manuscripts, the greatest part of the cases in question were crimes or private delicta, of which a member of the community was accused or accused another. Only the sixteenth title, dealing with intestate succession, could give rise to non-penal cases. But we guess the Collatio included some (at least) other titles concerning private law.
28 The strict similarity between Collatio (Roman side) and Vaticana Fragmenta has been already noticed, particularly by F. Schulz, Manuscripts, supra n. 3.
29 Very probably the same person bore both titles together.
30 That is, for instance, Schulz', F. speculation (SDHI, (1936) 20 ff.Google Scholar; BIDR, (1961) 60 ff.).
31 This word was used by the original composer in 7,1 (first “annotation”: “scitote, iuris consulti, quia Moyses prius hoc statuit”), where he showed his pride towards the Roman lawyers of his time (epigones of the classical jurists). To one of them he probably had addressed himself in order to receive advice about the collection of Roman legal text he needed (either this collection already existed or had to be made up specially); and the recourse to the superior knowledge of this (these) lawyers) psychologically explains the pride he showed, when he could point out the historical priority of a Mosaic rule over the corresponding Roman one.
32 Coll. 14,3,6, at the end of the title de plagiariis, is an “annotation” written after Constantine's reign and probably before Theodosius I and wants to put up to date the Roman side of this title; 5, 3 is an “annotation” written, as we have said many times, in connection with the Theodosian constitution on male prostitution of 390 and stressing the full conformity of that constitution with the spirit of the afore-quoted Mosaic rule; in the same passage 5, 3 another “annotation” wants to point out that the mentioned constitution had also been included in the Theodosian code. The “annotation”, on the contrary, of Coll.6, 7, 2–7, although placed at the end of the title, was probably written by the original composer, eager to point out what he thought to be a further merit of the Mosaicae leges: that of sternly punishing incest, in strict agreement with ethics.
33 The question whether, in the last case, the Collatio would have really had an audience, can be set aside.
34 These two parts may have been prepared separately at different times. That, however, does not oblige us to follow F. Schulz's opinion that the Biblical part was added to the Roman one only after 390. The prejudice of a Christian ecclesiastical origin can explain, but not justify, such an opinion. The difference of time, if any, is likely to have been slight: some months or, at most, some years.
35 Schrage states, indeed, that the Collatio and the above mentioned Liber de divinis scripturis use the same Latin translation of the Bible. Thence he draws the conclusion, on the one hand, that those works must have been contemporary, on the other hand, that they must have had a similar purpose, each in its own field: to display the consciousness of the relationship between the two cultures of Christianity and classical Antiquity. I do not know whether the examples of only three Mosaic rules, where most (not all) of the Latin words used for their translation are the same, should be considered an indisputable evidence of the adoption by both works of the same Latin translation or, instead, it is possible and advisable to find different and more flexible explanations of such complex historical facts. In any case, if those works were truly contemporary, this does not mean that they had the same purpose. Therefore, I think it necessary that due attention be paid to the fact that, with the sole exception of Theodosius' enactement of 390, all the imperial constitutions related to in the Collatio do not exceed Diocletian's times and do not include constitutions enacted in the long period between Constantine and Theodosius II, many of whom followed Christian precepts or values; I think, moreover, it necessary that with the same attention the arguments be considered by which I tried to show the unlikelihood of an “apologetic” purpose (in the broad sense) of the Collatio.
36 We have seen, indeed, that Christian origin and “apologetic” purpose have been regularly associated among the scholars, with the exception of Blume. See recently, Schulz, F., Manuscripts, 314Google Scholar; and ibid.., The manuscripts, in BIDR (1951) 50 ff.; Liebs, D., Jurisprudenz, 162 ff.Google Scholar; Pieler, P. E., Akten des 26. Rechtshistorikertages, 485 ff.Google Scholar; Schrage, E. J., Mélanges Wubbe, 416 ff.Google Scholar
37 See supra n. 4, in particular.
38 See, for instance, Liebs, D., Jurisprudenz, 163.Google Scholar It should be observed that Pseudo Augustinus, Liber de divinis scripturis sive Speculum, the work judged by Schrage very similar to the Collatio both as to language and as to purpose, in its 51 Chapters quotes and comments on many ethical and legal rules both of the Old as well as of the New Testament.
39 Johann., VIII, 5–6: “Let him, who is without sin, cast the first stone”: stoning was the death penalty for adulteresses.
40 Supra n. 5. Hermann, F., Ecclesia in re publica, (Francoforte-Bernae-Cirencesti, 1980) 212 f.Google Scholar, thinks that the bishops had to follow the Jewish rules with regard to procedure.
41 Cf. Selb, W., “Episcopalis audientia” von der Zeit Konstantins bis zur Nov.XXXV Valentinians III, (1967) 84 SZ 173Google Scholar; Vismara, G., Ancora suil' “episcopalis audientia”, (1987) 53Google ScholarSDHI, particularly 58 ff.; Cuena Boy, F. J., La “episcopalis audientia”, (Valladolid, 1988) 15 ff.Google Scholar; Cimma, M. R., L' “episcopalis audientia” nelle costituzioni imperiali da Costantino a Giustiniano, (Torino, 1989) 57 f.Google Scholar and n. 111. The mentioned “equitable arguments” were an aspect of the “lex Christiana”, according to which the bishops were ordered to judge (CTh. 1, 27, 1).
42 E. Volterra, “Legum Mosaicarum et Romanarum Collatio”, in Rend. Accademia Lincei, supra n. 6.
43 Smits, N., Mosaicarum et Romanarum Legum Collatio, (Haarlem, 1934).Google Scholar
44 F. Schulz, Manuscripts, supra n. 3.
45 D. Liebs, Jurisprudenz; P. E. Pieler, Akten des 26. Rechtshistorikertages; Schrage, E. J., Mélanges Wubbe, 416Google Scholar (all in supra n. 6).
46 Certainly by the majority of the Italians, who studied that question: cf. Masi, A., “Contributi ad una datazione della ‘Collatio Legum Mosaicarum et Romanarum’”, in (1961) 64 BIDR 285 ff.Google Scholar; Id. “Ancora sulla datazione…”, in Studi senesi, (1965) 14 N.S. 134 ff., 238 ff. Rabello, A. M., “Alcune note sulla ‘Collatio Legum Mosaicarum et Romanarum’ e sul suo luogo d'origine”, in Scritti sull'Ebraismo in mem. di G.Bedarida, (Firenze, 1966) 177 ff.Google Scholar; ibid., “Sull'ebraicità dell'autore della ‘Collatio Legum Mosaicarum et Romanarum’”, in (1967) 33 Rassegna mensile di Israele 339 ff.; Cracco Ruggini, L., “Ebrei e Romani a confronto nell'Italia tardo-antica”, in Italia Judaica - Atti Congr. Intern. (Bari 18–22 maggio 1981, II, (Roma 1983) 38 ff.Google Scholar; G.Barone-Adesi, L'età della “Lex Dei”, supra n. 4.
47 Reference was made in the Collatio to matters and times for which the Jewish courts (if any) had no jurisdiction.
48 This archetype itself or a contemporary copy taken from it was probably looked through by archbishop Hinkmar of Reims, when in the IX cent, he wrote the essay on Emperor Lotharius' divorce and quoted a passage of chap. VI (de stupratoribus) of the lex Romana, lib.primus, corresponding to Coll. V of the mentioned manuscripts (supra n. 8). It ought to be pointed out that the archbishop, despite the quotation of Moyses' rule related in our Coll. 5, 1 (but really he quotes the liber Leviticus of the Pentateuch), knows the Collatio as lex Romana, which means that from the legal point of view only the Roman texts of the Collatio had to be taken into consideration by the Christian ecclesiatical authorities of those times as well as by the Jewish lawyers of more than four centuries earlier.