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Legal engagement

 | 
Katell Berthelot
, 
Natalie B. Dohrmann
, 
Capucine Nemo-Pekelman

Law and self-perception

Early Christian perspectives on Roman law and Mosaic law

Kimberley Fowler

Résumé

This paper will consider four Christian sources from between the second and fourth centuries CE, all of which in their own way represent Roman law as to some degree dependant on, inspired by, or compatible with that of Moses. The nuanced viewpoints put forward by each writer, however, evidence more particular agendas and responses to the challenge of following both God’s laws and those of Rome. Whether authors were writing in the pre- or post-Christianised Empire was a factor in some cases, as was the perceived relationship of certain authors between Christianity and Judaism. I will argue firstly that Roman law was primarily for certain early Christian authors a polemical tool by which to argue for the distinction between Christianity and Judaism. Secondly, I will show that by directly or indirectly connecting the Mosaic and Roman laws, Christian authors were able to further both pro- and anti-Roman agendas.

Texte intégral

Introduction

1Much has been written about the relationship between Roman law and Christianity. However, this focus is usually either upon the ideological and practical tensions that arose from Christians faced with moral conflicts over requirements to sacrifice to the emperor, or debate as to precisely what the legal status of Christianity was under Rome prior to its imperial acceptance in the fourth century. Much less discussed are the various ways in which Christian authors across the early centuries understood Roman law as fitting into the complex relationship Christianity had with Judaism, specifically the issue of how much, if at all, Christians should follow the laws of Moses. In this paper I will examine four key sources from between the second and fourth centuries CE, each of which in their own unique way makes a connection between Roman law and the Mosaic aw, and exploit this relationship towards different polemical ends. I will argue firstly that some authors – Tertullian in his Apology and the author of the Didascalia Apostolorum – utilised Roman law as a polemical tool in their mission to distinguish Christianity from flawed aspects of the Jewish Law. These two authors differed, however, in their attitudes to Roman law itself, with Tertullian being explicitly negative, and the author of the Didascalia treading much more tentatively. Secondly, I will show that either by making an argument of derivation (to one degree or another) of Roman law from the Mosaic Law (Tertullian again, and Ambrosiaster in his Commentary on Romans), or by highlighting the shared concerns and characteristics of the two bodies of laws (the Collatio Legum Mosaicarum et Romanarum), authors in both the pre- and post-Christianised empire were able to do several things: criticise both Rome and Judaism together while asserting Christianity’s moral superiority; acknowledge some intrinsic merit in Rome’s legislation; and/or show that Christianity’s Jewish heritage gave it an element of legal compatibility with Rome.

Roman law as a tool within the Jewish-Christian debate

2This section will address the first of two notable ways in which early Christian authors engaged with Roman law, and will argue that prior to the Christianisation of the Roman empire, Christian debates about the intrinsic value of Roman law were essentially rooted within those relating to Christianity’s separation from and superiority to Judaism. Roman law therefore played an important, yet secondary role. In the early centuries during which Christianity developed and attempts were made to distinguish it from its Jewish roots, the question of how much, if at all, Christians should continue to respect God’s laws given to Moses was crucial. For the author of the third-century Didascalia Apostolorum we shall see that Roman law was accepted as something which simply needed to be obeyed due to its status as the legislation of the ruling government. The same could not be said for all of the laws of Moses, and hence these were more able to be challenged and debated. Despite this, however, we do find Roman law brought into the Jewish-Christian debate as an illustrative tool within the argument for Christianity’s status as God’s new chosen people.

  • 1 On Tertullian’s rhetorical style, see Sider 1971, who discusses his use of rhetorical techniques i (...)
  • 2 David Rankin argues he was an orator, but not a jurist; see Rankin 1997, p. 335-342.
  • 3 See Barnes 1991, p. 236.
  • 4 Burrows 1988, p. 215-217.
  • 5 Wilhite 2007, p. 69; see also Dunn 2004, p. 39.

3The first source to be examined here is from the second-century apologist Tertullian, who argues that because Moses long predated Roman history, Roman law must logically be derived from biblical law. I will argue that Tertullian’s purpose in making this derivative association between the Mosaic and Roman laws is purely a polemical tool to emphasise the uniqueness of Christianity, and the new “law” that Christ brought. By lumping Judaism’s and Rome’s legal traditions together, Tertullian is better able to highlight that the Christians are morally superior to both. Tertullian was born in Carthage, North Africa, in the middle of the second century CE to a wealthy, educated family. He clearly underwent rhetorical training, and had some knowledge of Roman legal procedure and specific laws.1 Scholars have debated whether or not Tertullian was himself a jurist, or perhaps just an orator.2 In the extracts from his Apology that will form the basis of my argument here, however, specific details of Roman law are clearly not important for Tertullian (for an example of Tertullian discussing an uncertain Roman law pertaining to consecration of new gods see Apology 5, 1). Tertullian’s Apology for Christianity was composed in c. 197 CE, and addressed to the “rulers of the Roman empire”. Timothy Barnes has posited that rather than being intended for imperial ears, the Apology was written with the aim of demonstrating common ground with the educated elite of Carthage against the “ignorant urban mob”.3 Burrows, however, maintains that Tertullian had a Roman audience in mind when he composed the Apology, due to references such as “your historians” (5, 3), taken to be Tacitus.4 Indeed, as David Wilhite points out, the many addresses to “you, rulers of the Roman empire” (e.g., at 1, 1: uobis, Romani imperii antistites) suggest a Roman authoritative audience, even if this is only a rhetorical device and Tertullian never intended it to be heard by them.5

4In the Apology, in much the same way as previous apologists, Tertullian refutes charges levelled at Christians, such as human sacrifice and treason, and implores his audience to improve the treatment of Christians by authorities (see also, for instance, Justin Martyr, First Apology 7, 1-5; Athenagoras of Athens, Plea for the Christians 37). Tertullian’s attitudes towards the Roman state and those at the head of it are rather varied. He is at times both positive and scathing in his writings, sometimes accepting the emperor and/or the empire as God’s will, and working to repudiate the notion that Christianity is fundamentally opposed to them. At other points, however, he strongly condemns the imperial cult (On Idolatry 15), and refers to governors and emperors essentially as murderers (Antidote for the Scorpion’s Sting 9, 7). It is fair to say that Tertullian appears somewhat conflicted in his writings when it comes to his view of imperial power, evidently feeling the tension between the benefits of a stable and prosperous empire, the need to appease Roman authorities in order to minimise Christian persecution, and the elements of imperial rule and culture which he saw as running counter to the tenets of Christianity.

5The crucial text for the present argument appears in Apology 45, where Tertullian compares aspects of the Mosaic Law both with those of the Gospel and the laws of men (which should be understood as the laws of the Romans):

  • 6 45, 2. Uobis autem humana aestimatio innocentiam tradidit, humana item dominatio imperavit; inde n (...)

2. It was merely man’s opinion that provided your (i.e., the Romans) idea of innocence, man’s authority that commanded it. So your rule of life is neither complete nor does it inspire such fear as to lead to true innocence. Man’s skill to make clear what is truly good is no more than his authority to enforce it; one may as easily be mistaken as the other despised. 3. And to come to the point, which is the fuller saying: “You shall not kill,” or, “Do not even be angry?” Which is more perfect, to forbid adultery or to prohibit a single lustful look? Which is the deeper law, to restrain from doing evil or from even speaking it? Which is the more thorough, not to permit the doing of an injury or to allow no retaliation? 4. Though at the same time you must recognize that your own laws (i.e., Roman laws), which seem to tend to innocence, derived from the divine law, which is the more ancient pattern.6

  • 7 Both the antiquity of the laws of Moses and the youthfulness of Roman traditions, gods, and instit (...)
  • 8 Comparative historiography of this period frequently drew on this trope of derivation, not always (...)
  • 9 See Najman 1999, esp. p. 56. Clement of Alexandria also took this interpretation up in his Stromat (...)
  • 10 With this statement Tertullian seems to be refuting Tacitus’s argument in his Histories 5, 4-5 tha (...)

6Tertullian argues that the laws of the Romans can be traced back to those of Moses, which are more ancient.7 This same sort of reasoning is found in Philo,8 who argues that the best aspects of Greek philosophical teaching go back to that of Moses (On the Life of Moses 2, 12-14).9 Moreover, Tertullian claims that the Hebrew prophets who came after Moses still predate the earliest of Roman sages, lawmakers, and historians.10 The antiquity of the Mosaic laws is particularly important for Tertullian, because Moses’s writings encompass not only the whole of what is essential to Judaism, but Christianity as well (19, 2). However, as shall become clear below, this line of Tertullian’s argument should not be interpreted either as an attack on Roman law or a commending of the Mosaic Law. Rather, Tertullian’s aim in taking up this common tactic of arguing for derivation of one thing from another was to rhetorically limit the value of both. Mosaic Law, and therefore by extension Roman law, both had value, but this pales in comparison to the moral framework which Christianity operated with.

  • 11 See further Burrows 1988, p. 227.

7In chapter 21, 6 of the Apology, Tertullian portrays Judeo-Christian history as one in which there is a transfer of divine favour – the bond between Israel and God breaks down, and in its place a new bond is formed between God and the Christians. In Tertullian’s view, Christianity has inherited a great and ancient set of traditions, notably the Mosaic laws. Earlier in Apology 19, 1, Tertullian has already reasoned that because Judaism (and particularly Moses) long predates Roman history, Roman law derived from Jewish law. Because of this, the transfer of God’s favour from Judaism to Christianity had wider consequences for Christians living in the Roman empire, as Christians are now the heirs of the divine law which had “fertilized” (concipio) Roman legal tradition.11

  • 12 Villani 2012, p. 121-124, quotations at p. 123.

8In the passage quoted above from chapter 45 of the Apology, Tertullian argues that Roman law is first and foremost a human institution, and does not exert the same degree of power and authority as divine law. It is not as effective at ensuring that those subject to it remain innocent, because man made law cannot inspire the same level of fear. However, the laws of Moses are not presented as able to ensure innocence either. Indeed, as Andrea Villani argues, this chapter of the Apology presents innocence as something quite exclusive to Christians. Innocence in Roman law is “limited to a human level,” but when it is derived from God’s revelations, innocence becomes more than simply “an absence of guilt”. Rather, Christian innocence has to do with a superior level of spiritual perfection – i.e., imitating the character of Christ as closely as possible. The followers of God’s law therefore have more at stake than those who merely adhere to human, i.e. Roman, law.12

  • 13 As Villani argues, Apology 45, 4 appears to admit that a good Roman law can exist, but this is onl (...)
  • 14 Tertullian is cautious in his presentation of the relationship between Jewish law and Christianity (...)
  • 15 Burrows 1988, p. 226-227.

9In line with his distinguishing of Christianity from Judaism elsewhere in the Apology Tertullian here aligns the Mosaic laws with those of the Romans to maintain some exclusivity for the way that the Christians now practice the ancient laws of the Jews. Essentially, despite having inherited Judaism’s ancient traditions, the Christians are superior to the Jews. By alluding to Christ’s instructions, which develop, improve, or fulfil the laws previously given to Moses, Tertullian is able to argue that Roman laws are derived from the ancient laws of Moses while keeping some distance between Christianity and Judaism, as well as between Christian and Roman understandings of law (Christ’s “laws” and their supremacy to Roman law will be addressed in the next section of the paper).13 Unlike Judaism, one of the key advertising points for Christianity was that it was non-exclusive, and was for all peoples. This raises a point which ought to be emphasised in order to more fully understand Tertullian’s view of Roman law, in that for Tertullian, this non-exclusivity of Christianity provided a connection with Rome, which prided itself on its incorporation of numerous peoples into the empire.14 Tertullian sees a new bond emerging between God and the Roman empire, made possible via Christianity.15 This is not enough for Tertullian to explicitly describe Rome’s laws as God-given, however. Ultimately, Tertullian’s apologetic treatise needed to carefully balance criticising the Roman legal system which he deemed unjust in its treatment of Christians with presenting them in a manner as acceptable to Rome as possible.

  • 16 The Didascalia is commonly referred to as representative of Jewish Christianity. However, this cla (...)
  • 17 On the location, see Benga 2013, p. 530, n. 20. The text is only extant in a Syriac translation wh (...)
  • 18 Stewart-Sykes 2009, p. 52-53, dates the text later, arguing that the Didascalia’s polemic against (...)
  • 19 On the author as a bishop, see the bibliography in Benga 2013, p. 530, n. 18.

10The distinction between Christianity and Judaism which forms a central part of Tertullian’s argument regarding Roman and Mosaic Law is also at issue in the next text we will consider, the pseudo-apostolic treatise known as the Didascalia Apostolorum.16 This text was likely composed in Syria or Palestine17 in the early-third century, despite its claims to be the composition of the Apostles from the time of the Council of Jerusalem,18 and is usually categorised within the genre of church orders. Although the text was originally written in Greek, no extant Greek version survives. A complete Syriac translation of the Didascalia, itself dated from the late-fourth to the sixth century, was first published in the mid-nineteenth century, before a Latin translation, possibly from the fourth century, was discovered in 1900. About two fifths of the Latin version are extant. There have been attempts to restore the Greek text, partly via comparison with the fourth-century Apostolic Constitutions, which incorporate the Didascalia (most successfully by Franz Xaver Funk in his edition of 1906, in which the Greek appears beside the Latin). The fourth-century bishop and heresiologist Epiphanius of Salamis is our earliest witness to the text, who believed it himself to be the genuine work of the Apostles, and claims that it is read amongst the Syrian “heretical” group known as the Audians (Panarion 3, 7). The author is thought to be a bishop, probably a converted Jew, whose church consisted of numerous Jewish converts.19

11The Didascalia contains teaching on various areas of Christian life, and acts as an instruction manual for the author’s church community, covering topics including prayer, martyrdom, how to treat orphans and widows, duties and proper conduct that ought to be adopted by bishops, rules about deacons and deaconesses, instructions regarding fasting and liturgy, information on how to educate children, and denounciation of heresy. Most important for our purposes, however, is that the Didascalia appears also to have been dealing with intracommunity debates within the church surrounding the value of the Mosaic Law for Christians, and connected to this discussion is the place of Roman law within the author’s worldview. On the one hand, the author’s line of argument appears to bear some resemblance to later attempts to align Roman legislation with the Mosaic Law (we will address this issue later in the paper), but similarly to Tertullian is mainly concerned with promoting Christianity’s distinction from Judaism, with Roman law once again brought in as a tool to achieve this aim.

12The document has not received much, if any, attention thus far for the comments which it makes about the Romans and the place of their law, and I offer an attempt here to address this. I argue that the Didascalia treads carefully between offering an overly positive evaluation of Roman law (Christians still encountered problems with Roman authorities at this point in history), and marking out its merits in order to portray certain elements of Jewish Law as worse in comparison.

  • 20 This is the first time this term appears in Christian literature. In the Latin translation this is (...)
  • 21 See Heschel 2006, p. 459.
  • 22 Mandel 2017, p. 215, n. 114; see also Fonrobert 2001, p. 496-499.

13In the final chapter of the work, the author’s polemic regarding Christian observance of the Mosaic Law sees this considered in connection with both Roman law and the Romans’ maintenance of power. This is a noteworthy feature, and one that deserves further consideration. Put simply, the author of the text distinguishes between “the Law” (lex), which refers to the Decalogue, or Ten Commandments, and what is termed as the “Second Legislation,”20 referring to the second set of commandments given to Moses on Mount Sinai after he finds the Jewish people worshipping the golden calf (Exodus 32:19).21 The Didascalia sees God’s punishment for the Israelites as his supplementing of the Torah with an additional set of laws (Exodus 34:1-4, 11-28) which are equated to a law of bondage.22

  • 23 In Funk 1905, vi.19.

14The first main passage of interest for us comes in chapter 26 of the Didascalia:23

  • 24 Dominus vero noster et salvator veniens et similitudines implevit et parabolas ostendit, et ea, qu (...)

But the Lord our Saviour, when he came, fulfilled the types and explained the parables, and he showed those things that are life-giving, and those that cannot help he destroyed, and those that cannot give life he abolished. And not only in his own person did he show this, but also by the Romans; and he overthrew the temple, and caused the altar to cease, and made an end of sacrifices, and all the commands and bonds that are in the Second Legislation he abolished. For the Romans also hold the Law, but they neglect the Second Legislation: therefore their dominion is strong. You, therefore, who desire today to be under the Second Legislation, while the Romans rule you cannot perform anything that is written in the Second Legislation.24

  • 25 This phrasing draws on the ideology of Galatians 3:21, where Paul states that while the law (i.e. (...)
  • 26 utor, which might also be rendered as “keep,” “employ,” or “adopt”.
  • 27 praetermitto.
  • 28 We also read of the issue of the conflict between biblical and Roman law in Origen, who was roughl (...)

15Essentially, the author asserts that Christ’s coming was in part to do away with anything that did not offer salvation. In addition to his own didactic activity, Christ also used the Romans to accomplish this. The Romans are credited here, albeit alongside Christ, with somehow participating in the abolition of those things which are not “life giving”.25 In the latter part of the extract the author claims that the Romans “hold”26 the Law, but they neglect (or “omit”)27 the Second Legislation. What is more, it is this which keeps their dominion strong. This raises questions: firstly, in what way does the author envisage the Romans as upholding biblical law? What precisely does the author mean when he claims that the Romans neglect the Second Legislation? If we consider this statement in line with the logic of the author’s argument more broadly, it would seem that the Romans here are implied to be in line with the author’s view that the Law of the Decalogue is true and to be maintained, while the Second Legislation is to be shunned. This appears to be a strange argument to make of the Romans, however. Why would the pre-Christianised Roman power at this point in history be in any way interested in any facet of biblical law? The end of the extract states that while the Romans are in power, those within the author’s community who wish to practice the requirements of the Second Legislation cannot do so anyway, the implication being that there are elements which conflict with Roman law.28

16This idea is expanded upon shortly after:

  • 29 Secundatio enim destructa est, lex autem confirmata est: et qui volunt esse sine lege, inuiti sub (...)

For the Second Legislation is undone, but the Law is made firm. And those who would be without the Law, against their will come under the Law; for He said in the Law, ‘You shall not kill’; but if a man kills, he is condemned by the law of the Romans, and he comes under the Law.29

  • 30 See, for example, Tacitus, Histories 5, 3; Juvenal, Satires 14, 105.

17By “those who would be without the Law” the author refers to any Christians in his community attempting to leave behind the Decalogue as well, because if one chooses to ignore this original form of the Mosaic Law he or she is still involuntarily subject to it, because the Decalogue and Roman law agree on certain issues, and Roman law governs everyone, Jew, Christian, or otherwise. Only the Second Legislation can be ignored, not the original Ten Commandments given at Sinai. The author does not explicitly suggest that the commonality between the Mosaic Law and Roman law here is the result of God’s design, although perhaps this is implied. The issue highlighted here is homicide, which is condemned both in the sixth commandment (see Exodus 20:13) and Roman law. When we consider the two passages I have highlighted together, one can see an emphasis on the similarity between Roman law and the Decalogue. While certain biblical laws outside the Decalogue clashed with Roman laws, and in this sense Rome might be viewed as indirectly “neglecting” the Second Legislation, this distinction in biblical law was certainly not something which the imperial power concerned itself with. However, for the author of the Didascalia the Roman power, which is demonstrated to have some common ground with the Decalogue, was in a way proof that success is linked with this true Law of God. The fact that the Romans were not consciously obeying the Decalogue (and indeed viewed some of it very negatively, such as the Shabbat, which for numerous Roman authors was simply a manifestation of laziness)30 does not matter for the polemic advanced here.

The compatibility and hierarchical relationship between Christian “law” and Roman law

18Both Tertullian and the author of the Didascalia found a way to incorporate Roman law in their polemical discussions of Judaism, employing Roman legislation in a very general manner (neither are concerned with specifics in the passages examined above) as a tool to demean the laws of Moses (or some of them in the case of the Didascalia). For these authors, then, Roman law was both a fact of life which Christians had to contend with, but also a helpful polemical tool in that it helped to demonstrate the inadequacy of the laws sacred to Judaism, thereby assisting in the rhetoric of Christian supremacy to Judaism, and the necessity of the former’s distinction from the latter (for the author of the Didascalia this was in very practical terms). However, there were other ways in which Roman law entered into Christian discussion of and understanding of its Jewish heritage, as well as the degree to which Roman law was compatible with or reflective of God’s laws, and this section will demonstrate how this discussion differed in the pre- and post-Christianised Roman empire.

19In this regard, Tertullian’s argument in chapter 45 of the Apology bears a further dimension to that discussed above, in that it suggests that the teachings of Christ are morally superior to Rome’s laws. I repeat here the relevant extract from chapter 45, 3 of the Apology for clarity:

45, 3. And to come to the point, which is the fuller saying: ‘You shall not kill,’ or, ‘Do not even be angry?’ Which is more perfect, to forbid adultery or to prohibit a single lustful look? Which is the deeper law, to restrain from doing evil or from even speaking it? Which is the more thorough, not to permit the doing of an injury or to allow no retaliation?

  • 31 Some scholars prefer to understand Jesus as offering development, rather than denouncement of the (...)
  • 32 For the references see Sider 2001, p. 65.

20Tertullian here juxtaposes several items, in which he draws upon the famous “antitheses” of Matthew 5:17-48, where Jesus offers “improved” versions of the laws given to Moses.31 The first of these antitheses Tertullian uses compares the command not to kill with the implicitly superior command not to submit to anger (see Matthew 5:21-22, and also Colossians 3:8 and Titus 1:7).32 This is followed by the prohibition of adultery versus simply giving lustful looks (see Matthew 5:27-28); refraining from evil versus even speaking it (see Matthew 5:33-37 on the false swearing of oaths), and finally the forbidding of causing injury versus not retaliating at all (see Matthew 5:38-39). In each case, the latter is implied to be the most complete or proper, and in the wider context of Apology 45, 2-4, discussed in the previous section, the former seem to be attempts to give examples of things which Roman law is concerned with in some way, which complement the laws of Moses. Tertullian does not engage in discussion of specific Roman laws, however – the argument remains vague, with the issues of murder, adultery, and more general violence simply in the background. By hinting at the link between the Mosaic Law and those of the Romans, while implying that the teachings of Jesus have improved upon those of Moses, Tertullian might be seen to acknowledge indirectly a divine, and therefore positive, source for Roman law, yet he is able to argue that it is somewhat inferior to Christian standards. This is pure apologetics on Tertullian’s part, however – he does not deal directly with any actual Roman laws, and rather seeks to blur the distinction between law and ethics.

21In the second-century environment that gave rise to Tertullian’s Apology, the daily reality of living under the laws of Rome was at times problematic for Christians due to demands to sacrifice to Roman deities or swear oaths to the emperor, which many Christians felt conflicted with faithfully following Christ. While this is not the topic being addressed in this paper, it is important to remember that it very much lay behind Tertullian’s Apology, and no doubt influenced his view presented in chapter 45, 2-4 that the moral laws which Christ gave were inherently better than anything in Roman legislation. By the time we reach the fourth century CE, however, the situation was very different, with Christianity becoming accepted and embraced by Rome’s emperors. In the particularly perplexing Collatio Legum Mosaicarum et Romanarum we find an apparent attempt to harmonise Roman and Mosaic Law. I will argue in what follows that the Christian compiler of this text aimed to assure non-Christian legalists that Rome shared the concerns of the legal tradition which Christianity had inherited from Judaism, yet still maintained that God’s laws had primacy.

  • 33 Scholars have struggled over the years to firmly identify Ambrosiaster, but it has been suggested (...)
  • 34 The Commentary on Romans exists in three recensions (I have used the longer alpha recension for th (...)

22In this sense, the Collatio can be seen to draw to an extent on similar ideology to Tertullian, but also to another fourth-century Christian author, Ambrosiaster, who also suggests derivation, even if indirectly, of Roman law from the Mosaic Law. We will consider Ambrosiaster’s arguments before moving to discuss the Collatio in more detail. Ambrosiaster (“Pseudo-Ambrose”) wrote in Rome during the latter half of the fourth century CE.33 In his Commentary on Romans 7, 134 Ambrosiaster states that because the Romans are a civilised people they naturally practice the ethical precepts of the Decalogue:

  • 35 The translation is my own. Latin text in Vogels 1966, p. 210: 7, 1. Sciunt enim (ergo) legem Roman (...)

Therefore, the Romans know what law is because they are not barbarians, but understand natural justice, in part from themselves, and in part from the Greeks, just as the Greeks do from the Hebrews. Before Moses while the law was not hidden, neither organization nor authority existed. For the organization of law was brought to the Romans from Athens.35

  • 36 For a recent treatment of this topic, see Hayes 2015.
  • 37 Translation by Lunn-Rockcliffe 2007, p. 51.

23Ambrosiaster’s broader perspective understands natural law as that of God (in line with numerous Graeco-Roman conceptualisations that long pre-dated Ambrosiaster).36 In the continuation of the passage quoted above from his Commentary on Romans Ambrosiaster affirms that “It is no secret that the whole life of man is under the law of nature, which has been given to the world. This is the general law”.37

  • 38 “Do you not know, brothers – for I am speaking to those who know the law – that the law is binding (...)
  • 39 The text is slightly uncertain, but most likely attributable to Ambrosiaster.
  • 40 Lunn-Rockcliffe 2007, p. 52; Ambrosiaster, Commentary on Romans 1, 20.

24Ambrosiaster’s exposition of Romans 7:138 recognises that the Romans, not being barbarians (barbarus, “uncivilised”), have a comprehension of natural law. This comes partly from themselves (i.e., their own legislative framework), and partly from that of the Greeks. This is a reference of course to the law of the Twelve Tables, and also to the fact that the Romans themselves viewed part of their early legal tradition as having Greek origin (this is discussed further below). What is more, the Greeks have gained part of their understanding from the Hebrews (the Jews). The implication is therefore that Roman law can in part be traced back through the Greeks to that of the Jews, which as we have seen, is an argument made already in the second century by Tertullian, albeit in a different way. Ambrosiaster continues to affirm that while (natural) law existed prior to Moses, it was not collected in an authoritative and ordered form. The Romans achieved organisation of their own laws (organisation of law having been absent prior to Moses) because they had in part adopted them in an ordered form from the Greeks. To help make more sense of Ambrosiaster’s comments here, it can be noted that in his Questions and Answers on the Old and New Testaments 75, 2,39 he offers a slightly confused account of Livy’s narrative in the History of Rome 3, 31, 8–33, 7 of the envoy sent to Athens to copy the laws of Solon, and to observe the institutions, customs, and laws of other Greek states. There is a cross-over in Ambrosiaster’s thought, then, between natural law, the Mosaic Law, and the law of the Romans, which itself owes much to the law of the Greeks. Ambrosiaster argues elsewhere that law did not originally need to be written down because it was ingrained in nature itself (see Questions 4, 1; Commentary on Romans 5, 13). However, Ambrosiaster’s concept of “instinctive justice” recognises that natural law was not powerful enough to keep human beings from sin.40

  • 41 Jacobs 2006, p. 95.
  • 42 Ibid.
  • 43 Jacobs 2006, p. 97.

25It is for this reason that Ambrosiaster sees the Mosaic Law as necessary, as it provided a more definite and organised structure of the moral precepts which God had already instilled within nature.41 Ultimately, however, Ambrosiaster maintains that Christ was needed to perfect this natural law which had been sent by God, and for this reason Andrew Jacobs sees Ambrosiaster as attempting to simultaneously maintain distance from and appropriate Jewish Law. By acknowledging a common origin of the Mosaic Law and the law of the Romans, Ambrosiaster is able to undermine the Jews’ sole claim to the Law of Moses. The flaws in the Mosaic Law are recognised by Ambrosiaster but it is still praised as a positive influence upon the laws of the Greeks, which according to Ambrosiaster were derived from the Mosaic Law. Ambrosiaster does not suggest here a direct influence of the Mosaic Law upon Roman legislation, yet it is implied through his description of laws and their organisational structure trickling down from Moses, to the Greeks, and finally to the Romans.42 Ambrosiaster’s endorsement of Roman law goes only as far as to suggest its indirect origins in God’s commandments to Moses, and to affirm that Rome itself was not ignorant of natural justice.43 He can therefore be seen to be doing something quite different from the author of the Collatio, who largely articulates the relationship between the Mosaic and Roman laws not in terms of common origin, but rather a shared ethical framework.

26In order to better understand the motivations of the Collatio’s author, three factors are important. Firstly, the text is not addressing problems that concerned earlier Christian writers (such as the author of the Didascalia) related to how closely Christians should follow the Mosaicl law. Rather, the laws of Moses which the Collatio specifically deals with are accepted as having intrinsic value. Secondly, the Collatio is not written for a church setting, or to advise Christians, but rather addresses non-Christian Roman legalists. Thirdly, the author of the Collatio is writing in an environment where the previous tension between Christianity and Roman law was no longer a concern in the same way it was for Tertullian, for example.

  • 44 Topics covered are as follows: homicide, assault, mistreatment of slaves, adultery, homosexuality, (...)
  • 45 Codex Berolinensis Lat. Fol. 269 from the ninth century, Codex Vercellensis n. 122 from the tenth (...)
  • 46 Frakes 2011, p. 35, 51-65 argues that internal evidence suggests a terminus post quem of shortly a (...)
  • 47 Volterra 1930; see also Rutgers and Bradbury 2006, p. 504-505.
  • 48 See Frakes 2011, p. 131; for a summary of other arguments related to Jewish authorship, see p. 130 (...)

27Before proceeding further, it is necessary to very briefly introduce the Collatio, and some of the debates surrounding its interpretation. The Collatio consists of sixteen chapters, or titles, which each offer a legal prescription from four of the books of the Pentateuch (Exodus, Leviticus, Deuteronomy, or Numbers), immediately followed by parallels from Roman law intended to highlight their compatibility.44 The biblical text is usually introduced with the formula Moyses dicit (“Moses says”) or Moyses Dei sacerdos haec dicit (“Moses, the priest of God, says the following”). The scriptural quotation is then followed by extracts from Roman jurists and the imperial constitutions. The work is preserved in three manuscripts dated between the ninth and eleventh century, but was initially published in 1574.45 The date of the composition of the text has been debated, but the most logical estimate is the latter half of the fourth century CE.46 The other prominent dispute relates to the Collatio’s authorship, and particularly as to whether the author should be identified as a Jew or a Christian. It would seem unlikely that the author was a pagan, as he seemed to be familiar with the Bible, and viewed it as divinely inspired. In 1930, Volterra put forward the theory that the author was a Jewish Talmudic scholar aiming to explain Judaism to the Roman elite.47 However, this suggestion can be challenged on several grounds. For instance, the emendations of the biblical texts used make them less akin to the Hebrew text and the Greek of the LXX, and more akin to the Old Latin Bible.48

  • 49 Frakes even suggests that the author’s efforts could be in response to the recent usurpation of Eu (...)
  • 50 See Frakes 2011, p. 116.
  • 51 Rutgers 2000, p. 217.

28In favour of a Christian author, Frakes has drawn attention to Christian interest in the laws of the Hebrew Bible in texts such as the Didache, as well as the Didascalia and Tertullian’s Apology, discussed above. Frakes’s suggestion is that the author was a Christian jurist in Italy who wished to get pagan colleagues on side by trying to minimise the difference between biblical and Roman laws.49 The author follows the second half of the Decalogue (Exodus 20:2-17; Deuteronomy 5:6-21), and at times trims down or edits the biblical text to omit material which did not have parallels in Roman law. For example, in the section on assassins and murderers, he quotes from Numbers 35:16-17, 20-21, leaving out verses 18-19, which refer to a person who kills another with a wooden weapon, and the “avenger of blood” who puts the murderer to death (NRSV). These verses are in the LXX and the Old Latin Bible which the compiler likely used, and so he probably left them out because Roman law had nothing specific to say about wooden weapons, and the “avenger of blood” is similarly something from Hebrew law which did not find a Roman counterpart.50 Contra Frakes, however, Rutgers argues that the Collatio’s author was unlikely to be a jurist (or at the very least was a poor one), due to inconsistencies between the Roman legal material that he brings together under the same topical headings.51 Given the Collatio’s concern with exploring the relationship between the laws of Moses and Rome, which although expressed quite differently in each case continues a Christian interest in the topic which we have seen in other earlier sources, I view the author as a Christian. If not a jurist, this individual seemingly had at least some access to and knowledge of Roman legislation (even if, as Rutgers argues, this was not particularly sophisticated). We shall see in what follows that the Collatio goes further than any of the other sources considered in this paper in its promotion of harmony between Roman and Mosaic Law. The Collatio therefore feeds into the view that is expressed already in some of the earliest Christian literature that Roman rule is supported by God (for the biblical precedent see Romans 13:1-7; 1 Peter 2:12-17). Towards this end, the author of the Collatio wishes to offer proof by way of authoritative examples from both sides that God’s laws as recorded by Moses and Roman legislation essentially work towards the same goal.

29I consider here an illustrative extract from Title 7 of the Collatio, relating to the punishment of thieves, which I argue indicates that despite his apparent attempt to highlight areas of similarity between Roman and Mosaic Law, the author still wished to emphasise that God’s law came first (thereby on some level following on from aspects of Tertullian and Ambroasiaster’s arguments):

  • 52 DE FURIBUS ET DE POENA EORUM.

Thieves and Their Punishment
7, 1, 1. Just as the Twelve Tables orders a thief in the night to be killed whatever the case, or a thief in the day if he is bold enough to defend himself with a weapon, understand, jurists, that Moses previously decreed this, as a reading reveals. Moses says “If a thief is found digging through a wall at night and someone hits him and he dies, he who hit him is not a murderer. 2. However, if the sun rises on him, he who hit is responsible for death, and will himself die.52

30This passage is particularly interesting because unlike the rest of the Collatio, the Roman law, specifically the Twelve Tables in this instance, is appealed to first. This reverses the pattern used in the rest of the document whereby the Law of Moses appears first. The Twelve Tables are the earliest example of Roman law that the Collatio appeals to, and in that sense show that the author seeks to take a holistic view of Roman legal tradition which is aware of its most ancient form in addition to later legislation. Because this chapter reverses the usual format of the Collatio the tone is noticeably different from the outset. However, the author does not open with the mention of the Twelve Tables in an attempt to imply the greater authority of Roman law on the issue at hand, but rather continues quite to the contrary with a more clearly articulated assertion of the priority of the Mosaic Law.

  • 53 On theft in Roman law more generally, see, for example, Harries 2007, p. 43-58; for further biblio (...)
  • 54 Frakes 2011, p. 143.
  • 55 Hyamson 1913, p. xl-xliii.
  • 56 Frakes 2011, p. 141. Frakes points to Cicero, On the Ideal Orator 1, 48; De leg. 2, 19.
  • 57 Harries 1998, p. 68. Fritz Schulz even suggested that this verse was an interpolation, due to the (...)

31The unusual opening clause regarding the Twelve Tables borrows from Cicero’s For Milo 3, 9, which states that the Twelve Tables permit a robber in the night to be slain in any manner, but a robber during the day may only be slain if he defends himself with a weapon.53 The author of the Collatio impresses upon his audience that Moses ordained earlier the same punishment for thieves that the Twelve Tables lay out. Moreover, it is stated that a closer reading will make this clear, suggesting that the author has direct access to the biblical text he refers to, in this instance, Exodus 22:2-3, and was familiar with it. Throughout the Collatio the compiler suggests that Roman law has roots in that of the Hebrew Bible, and this is articulated particularly clearly here. This feature in particular has been interpreted as lending strong support for the argument that a Christian author is attempting to show pagan jurists that his religion is of vital importance because the laws from its Jewish heritage anticipated the legislation that would be made by the Romans.54 The fact that this verse of the Collatio directly addresses “jurists” and suggests that they should know that Moses had said similar things to those prescribed in Roman law has caused debate as to whether we might have in this short extract a further clue as to whom the Collatio was composed for. Moses Hyamson suggested perhaps legal advisors for bishops in episcopal courts,55 whereas Frakes argues that the phrase iuris consultis could simply mean “lawyer” in earlier Latin, or by this point in Roman history experts of the law, perhaps who were active in government circles.56 Regardless, as Jill Harries argues, the compiler appears not to identify himself with his addressees, and clearly marks out a difference between himself and them with his vocative statement.57 These questions aside, the reversal in this chapter of the common pattern that is utilised throughout the work highlights not only the similarity and agreement between Roman and divine law, but that the latter set the precedent for the former. Finally, it can be noted that by focusing on the specifics of Mosaic Law beyond simply the Decalogue, the Collatio does something quite different from the Didascalia, which views any commandments given after the Decalogue as irrelevant and voided by Roman law. For this earlier author, the notion of precedence and continuation that we see in the Collatio is non-existent; rather, Roman law simply proves that a significant portion of the Mosaic Law has been superseded.

Conclusion

32The Christian tradition of understanding biblical, and more specifically Mosaic Law as a moral precedent for the legislation later developed by the Romans goes back to the second century at least. For the earlier authors, Tertullian and the author of the Didascalia (who focuses purely on the Decalogue), the relationship between Roman and Mosaic Law was to a large degree something which was utilised in order to assert the superiority of Christianity over Judaism, and/or make clear the boundaries between the two religions. Moreover, we see an awareness of the precarious situation of Christians within the empire, and the authors presenting the association between biblical and Roman law in ways which to some degree try to navigate this predicament. Tertullian, whose apologetic treatise was concerned with defending Christians suffering unfair treatment in Roman law courts, uses the connection between the two bodies of law in order to note that Roman law is not inherently bad (in that it is derived from a heritage that Christianity has now inherited, and improved upon), yet is significantly flawed. In this way Tertullian is able to present Christianity, and its perfection of the laws of Moses, as the superior moral framework, and can proceed to argue that Christianity does not suffer from the same flaws as both Judaism and Roman law.

33For the author of the Didascalia, those within the Church community who clung too tightly to certain Jewish practices and tried to uphold biblical laws other than the Decalogue were not practicing an acceptable form of Christianity. This writer and church leader therefore looks to Roman law as the dominant judicial power in order to support this argument. One can live in Roman society while upholding the Decalogue, the true divine law, as Roman legislation itself has some commonalities with it. Anything beyond this, however, is unfeasible. This can be understood as the result of God’s plan to liberate his people from the burden of the laws that were given after the Golden Calf incident. The Romans play a role in this as the governing power, which God has enabled. Tertullian’s point is different, however – we do not see the same insinuation of Roman law or Roman power being somehow divinely sanctioned. The connection drawn between Roman law and the Mosaic Law in Tertullian in effect denigrates the former, by highlighting its unoriginality and marking out Christ’s moral laws as those which lead to true innocence.

34In the fourth century, Ambrosiaster and the compiler of the Collatio were working within a Christianised empire, where the Roman justice system was no longer viewed as a direct threat to Christians. Ambrosiaster’s consideration of the intrinsic nature of laws and the ways in which different societies have built upon the frameworks of others does not specifically praise Roman law, but rather views it as part of a development which began with God, and trickled down through different peoples. If Andrew Jacobs is right, however, Ambrosiaster’s recognition of the good in each body of laws is double edged, as it subverts the Jewish claim of sole “ownership” of the Mosaic Law. This to some degree recalls the argument made by Tertullian, who understands the Christians as the inheritors (and improvers) of what was originally given to the Jews by God. In this sense, then, we can see in both Ambrosiaster and Tertullian Christians connecting Roman law with Mosaic Law in order to hint at Christianity’s superiority and uniqueness. The Collatio’s attempt at connecting the Roman and Mosaic laws, however, is doing something very different. The author seemingly intended to convince Roman legalists that Christianity and its Jewish heritage (which unlike for Tertullian and the author of the Didascalia is not an issue that needs to be dealt with) fit comfortably with Rome’s laws. Perhaps as others have suggested this was to minimise a perceived tension that lingered from an earlier time, or perhaps the author had more theologically motivated aims, seeking to attract non-Christian jurists to Christianity. This said, however, the extract from the Collatio that we have examined suggests that for the author, the laws of Moses were the exemplar for laws which would be codified by Roman jurists. Divine law therefore still takes precedence, even if the author wishes to demonstrate that Roman law sits comfortably alongside that given to Moses. The author asserts that the instructions outlined in Roman legislation agree with what is written in Exodus, and this illustrates the compatibility of the two bodies of law. Yet, those versed primarily in Roman law are still reminded that their own legislation is not original, and on this point the Collatio seems to echo the perspectives of Tertullian and Ambrosiaster.

35There are several important points which emerge from the comparative analysis undertaken in this paper of sources which each bring Roman and Mosaic Law into dialogue with one another:

  1. Roman law was picked up by both earlier and later authors to assist with polemic surrounding Jewish-Christian relations, and in particular Christianity’s distinction from its Jewish past (Tertullian, the Didascalia, and perhaps Ambrosiaster to a degree);
  2. Following on from the point above, the degree to which Roman law was presented positively was largely dependent upon the tension that a particular author felt with Christianity’s Jewish roots (of greatest concern to the author of the Didascalia, slightly less so, but still underlying in both Tertullian and Ambroasiaster, and seemingly not an issue at all for the author of the Collatio);
  3. In both the pre- and post-Christianised empire we see arguments hinting at God’s sanctioning of Roman law, both by the fact of its dominance (the Didascalia) and its areas of commonality with the laws given to Moses (the Didascalia and Collatio).

36It is a well-established fact that Christianity and Roman law came into conflict with each other as the Jesus movement emerged and developed. It is also no secret that Christianity’s relationship with Judaism caused significant debate and problems within early church communities. Both Judaism and Rome (which of course also had a significant history of tension) had in common that law was something intrinsic to their identity, and this paper has demonstrated that Christian authors at different times, and with very different agendas, presented the relationship between the two bodies of law towards their own rhetorical ends. As such, the argument for derivation of Roman law from the Mosaic Law was represented both positively (the Collatio) and negatively (Tertullian). Roman law was a fact of life for Christians living in the second, third, and fourth-century environments reflected by our selected texts, and rationalising one’s place under it involved evaluating how it fitted in with God’s ultimate plan. Some, such as the author of the Didascalia, were more willing to accept Rome’s dominance and could see it as a part of the necessary break away from flawed aspects of Jewish law. Others, such as Tertullian, viewed Roman law as intrinsically deficient, with only Christ’s moral teachings providing a sufficient ethical framework. Perhaps unsurprisingly, our most accepting endorsement for Roman law comes from the Collatio, originating from a time at which Roman law was not viewed as the oppressive force to Christianity that it once had been. Yet, there still remains an element of competition even for this author, with subtle emphasis on the fact that God’s laws came first, and remain the ideal pattern.

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Notes

1 On Tertullian’s rhetorical style, see Sider 1971, who discusses his use of rhetorical techniques including exordiumnarratio, and confirmatio and reprehensio, for instance.

2 David Rankin argues he was an orator, but not a jurist; see Rankin 1997, p. 335-342.

3 See Barnes 1991, p. 236.

4 Burrows 1988, p. 215-217.

5 Wilhite 2007, p. 69; see also Dunn 2004, p. 39.

6 45, 2. Uobis autem humana aestimatio innocentiam tradidit, humana item dominatio imperavit; inde nee plenae nee adeo timendae estis disciplinae ad innocentiae veritatem. Tanta est prudentia hominis ad demonstrandum bonum quanta auctoritas ad exigendum; tam ilia falli facilis quam ista contemni. 3. Atque adeo quid plenius, dicere: Non Decides, an docere: Ne irascaris quidem? Quid perfectius, prohibere adulterium, an etiam ab oculorum solitaria concupiseentia arcere? Quid eruditius, de maleficio, an et de maliloquio interdicere? Quid instructius, iniuriam non permittere, an nee vicem iniuriae sinere? 4. Dum tamen sciatis ipsas leges quoque vestras quae videntur ad innocentiam pergere de divina lege, ut antiquiore forma, mutuatas. The Latin text is from Glover 1931, p. 194, 196. The translation is my own adaption of Glover’s (p. 195, 197).

7 Both the antiquity of the laws of Moses and the youthfulness of Roman traditions, gods, and institutions, have already been treated by Tertullian in chapter 19 of the Apology, where he lists various figures and events which are recorded in the Roman histories that Moses far predates. For instance, it is claimed that Moses lived 393 years prior to Danaus, the brother of the mythical Greek king Belus, and eventual king of Argos, about 1000 years before the Trojan War, and 1500 years before Homer. Moreover, Moses was earlier than Saturn (see Apology 19, 1).

8 Comparative historiography of this period frequently drew on this trope of derivation, not always just in relation to law.

9 See Najman 1999, esp. p. 56. Clement of Alexandria also took this interpretation up in his Stromateis (see particularly van den Hoek 1988, p. 48-115 on Moses).

10 With this statement Tertullian seems to be refuting Tacitus’s argument in his Histories 5, 4-5 that Moses introduced novel forms of worship which separated the Jews from all other peoples. This line of argument is not unique to Tertullian; Greek Christian apologists also emphasised Moses’s antiquity (see Justin Martyr, First Apology 44; 54; 59; Theophilus, To Autolycus 3, 20-29; Tatian, Oration to the Greeks 36-41). Tertullian does not appeal to these earlier Christian authorities, however, but rather to Josephus (see Apology 19, 6 in which Tertullian acknowledges Josephus’s prestige). Tertullian’s argument is similar to Josephus’s statement in Jewish Antiquities 1, 16, where he claims that Moses was born 2000 years prior to his own writings, which was longer ago than any of the Roman poets dared to date either the birth of their gods or human laws (see Burrows 1988, p. 225).

11 See further Burrows 1988, p. 227.

12 Villani 2012, p. 121-124, quotations at p. 123.

13 As Villani argues, Apology 45, 4 appears to admit that a good Roman law can exist, but this is only because they are drawn from ancient divine law. If a law “tends towards innocence” then it must come from God, and because the Romans have no true deity, they must have utilised the law of the Supreme God (Villani 2012, p. 124-125).

14 Tertullian is cautious in his presentation of the relationship between Jewish law and Christianity. While the latter inherits and represents the former, it is made clear that Christians have become the heirs to God’s favour because they have a greater capacity for understanding and openness than the Jewish people (Apology 21, 6). Mark Burrows suggests that this is Tertullian’s way of protecting Christianity from Roman attacks that had been made upon Judaism (e.g. Juvenal in his Satire 14, who derides the Jews for looking down on Roman law). In order to make clear that Christianity did not suffer from the same flaws as its Jewish ancestor, Tertullian must emphasise that they are distinct despite their shared heritage. This is likely why Tertullian emphasises in Apology 21, 6 that the Christians who will inherit God’s favour are gathered from “every nation, and people, and country”.

15 Burrows 1988, p. 226-227.

16 The Didascalia is commonly referred to as representative of Jewish Christianity. However, this classification has been challenged by Charlotte Fonrobert, who reads the text as representing a Jewish voice that shares a discursive space with contemporary rabbis. See Fonrobert 2001. Marcus 2010, p. 606-607, discusses the author’s apparent self-identification as a Jewish convert to Christianity within the text.

17 On the location, see Benga 2013, p. 530, n. 20. The text is only extant in a Syriac translation which dates back possibly to the late-fourth century, which is complemented by a Latin translation possibly from roughly the same period, containing around two fifths of the text, and including the key passages of concern in this paper.

18 Stewart-Sykes 2009, p. 52-53, dates the text later, arguing that the Didascalia’s polemic against Jewish Christians can be specifically linked to events in the fourth century. Stewart-Sykes suggests that an apparent requirement of Constantine whereby one could be put to death for refusing to eat pork – in theory weeding out Jews – , and the 29th legislative canon passed at the Council of Laodicea (364 CE) forbidding Christians from “Judaizing” by observing the Sabbath provide possible contexts for the Didascalia’s distinguishing between those who follow the Mosaic Law, and those who follow the stricter “second legislation”. However, this is unconvincing, as the claim that Constantine tried to force Jews to eat pork is based on the historically dubious claims of Eutychius of Alexandria, writing several centuries later.

19 On the author as a bishop, see the bibliography in Benga 2013, p. 530, n. 18.

20 This is the first time this term appears in Christian literature. In the Latin translation this is rendered as secundatio or secundatio legis, which is basically a translation of the Greek δευτέρωσις, deuterōsis (remembering of course that the Didascalia was composed in Greek). The term is rendered as tinyam nimosa in the Syriac translation. Based on the Didascalia’s use of the term deuterōsis, Paul Mandel argues that the Didascalia provides evidence for the fact that the Mishnah, the first written work of the rabbinic movement, was known as the deuterōsis in Greek-speaking circles as early as the third century CE (see Mandel 2017, p. 215, n. 114; see also Fonrobert 2001, p. 496-499). This is also the opinion of Marcel Simon, who states that “The term deuterōsis was in fact created for the benefit of Greek-speaking Jews around the time when the Mishnah was beginning to acquire the force of law, i.e., from the third century onwards. It is from the Jews that the author of the Didascalia borrows the word”: Simon 1996, p. 89. Connolly 1969, p. lviii-lix, offers various examples of patristic writers from the fourth century CE who referred to the Mishnah as the δευτέρωσις, and argues that it was very unlikely that it only developed during this century. In this perspective, what we have in the Didascalia, then, is a sort of conflation of the post-Golden Calf Law of Moses and the Mishnah, and as Fonrobert states, the Golden Calf incident is the author’s terminus post quem for the laws which he criticises. Fonrobert 2001, p. 498. Fonrobert points to Bori 1991, who also understands this incident as a point of departure.

21 See Heschel 2006, p. 459.

22 Mandel 2017, p. 215, n. 114; see also Fonrobert 2001, p. 496-499.

23 In Funk 1905, vi.19.

24 Dominus vero noster et salvator veniens et similitudines implevit et parabolas ostendit, et ea, quae salvant, docuit, et ea, quae nihil iuvant, destruxit, et ea quae non salvant solvit; non solum per semet ipsum docens, sed et per Romanos inspirans: et templum [LV] deposuit, altare cessare faciens et sacrificia destruens, et omnia quae in secundatione praecepta erant vincula destruens. Nam et Romani legem utuntur, secundationem autem praetermiserunt: propterea et <imperium eorum> confirmatum est. Tu autem, si hodie sub secundatione desideras esse, Romanis imperantibus, quae sunt secundationis facere non potes. The Latin text is from Connolly 1969, and the English translation is my own adaptation of Connolly’s, p. 238-239; Connolly refers to p. 114 of the Syriac edition of Lagarde 1911, with the numerals in square brackets corresponding to the pages of the Verona palimpsest in Hauler 1900. See also Funk 1905, p. 364.

25 This phrasing draws on the ideology of Galatians 3:21, where Paul states that while the law (i.e. the Torah) is not opposed to God’s promises, it cannot give life; this can only be achieved through Christ.

26 utor, which might also be rendered as “keep,” “employ,” or “adopt”.

27 praetermitto.

28 We also read of the issue of the conflict between biblical and Roman law in Origen, who was roughly contemporaneous to the author of the Didascalia. In his Against Celsus 7, 26, Origen discusses the conflict between Roman law and that of Moses over the issues of slaying enemies and stoning wrongdoers. Here, of course, he refers not simply to the Decalogue, but to Pentateuchal laws more widely. Origen’s point is that the Mosaic Law is not compatible with life under Roman rule when taken too literally, as the Jews cannot legally carry out capital punishments, for instance. Origen does not make the distinction between the Law and the Second Legislation as the author of the Didascalia does, but both emphasise the incompatibility of certain elements of the Torah with living under Rome.

29 Secundatio enim destructa est, lex autem confirmata est: et qui volunt esse sine lege, inuiti sub lege sunt. In Lege dicit: Non occides. Si quis ergo interfecerit, a lege per Romanos condemnatur et sub lege est. For the Latin, Connolly 1969, p. 241, and for the English translation, p. 240, with my own slight modifications.

30 See, for example, Tacitus, Histories 5, 3; Juvenal, Satires 14, 105.

31 Some scholars prefer to understand Jesus as offering development, rather than denouncement of the Mosaic laws, in order to guide them to their full potential; for a treatment with discussion of the scholarship, see Foster 2004, p. 94-143.

32 For the references see Sider 2001, p. 65.

33 Scholars have struggled over the years to firmly identify Ambrosiaster, but it has been suggested particularly by David Hunter that he was a very active member of the Roman clergy (see Hunter 2009, p. 13-21). Ambrosiaster’s responses to both pagans and Jews, which are seen not only in his chapters in the Questions entitled adversus paganos and adversus Iudaeos, but more widely in his writings, have led some to identify him either as a converted pagan or a converted Jew (for the former, see Souter 2004, p. 166-174; for the latter, see Speller 1982; for a detailed overview of the arguments relating to Ambrosiaster’s religious identity, see Lunn-Rockcliffe 2007, p. 33-44). Ambrosiaster frequently utilises legal terminology, and subsequently, as Sophie Lunn-Rockcliffe states, Ambrosiaster’s interest and competence in legal matters has been the subject of debate, although it is clear that he is interested in the scriptural and theological dimensions, not the secular or practical (Lunn Rockcliffe 2007, p. 50 n. 82, cites Souter 2004, p. 178, who argued that Ambrosiaster’s legal terminology indicated an experienced administrator, and Morin 1914, p. 2, who describes him as an expert on law and a theologian).

34 The Commentary on Romans exists in three recensions (I have used the longer alpha recension for the present extract). The commentaries on the rest of Paul’s letters have come down to us in just one recension. It is widely agreed that all of the recensions go back to the author, who saw the need to revise his work (Hunter 2009, p. 9; for a very concise discussion of the recensions of the commentaries, see Bray 2009, p. xvi-xvii). Ambrosiaster’s Questions on the Old and New Testaments, also in multiple recensions, was in the Middle Ages attributed to Augustine. It is generally agreed that the texts were originally published anonymously, and attributions to Ambrose and Augustine were educated guesses by later scribes (Hunter 2009, p. 6).

35 The translation is my own. Latin text in Vogels 1966, p. 210: 7, 1. Sciunt enim (ergo) legem Romani, quia non sunt barbari, sed conprehenderunt naturalem iustitiam, partim ex se, partim ex Graecis, sicut et Graeci ex Hebraeis. quamvis enim ante Moysen non latuerit lex, sed ordo non erat neque auctoritas. nam leges Romanis ex Athenis adlatae (perlatae) sunt.

36 For a recent treatment of this topic, see Hayes 2015.

37 Translation by Lunn-Rockcliffe 2007, p. 51.

38 “Do you not know, brothers – for I am speaking to those who know the law – that the law is binding on a person only during that person’s lifetime?” (NRSV)

39 The text is slightly uncertain, but most likely attributable to Ambrosiaster.

40 Lunn-Rockcliffe 2007, p. 52; Ambrosiaster, Commentary on Romans 1, 20.

41 Jacobs 2006, p. 95.

42 Ibid.

43 Jacobs 2006, p. 97.

44 Topics covered are as follows: homicide, assault, mistreatment of slaves, adultery, homosexuality, incest, theft, false witness, witness of family members, deposit, cattle rustling, arson, moving of boundary markers, kidnapping, sorcery and astrology, and intestate succession.

45 Codex Berolinensis Lat. Fol. 269 from the ninth century, Codex Vercellensis n. 122 from the tenth or eleventh century, and Codex Vindobonensis n. 2160, from the ninth to eleventh century. For more on the manuscript tradition, see Schulz 1946, and more recently Frakes, 2011, p. 35-51.

46 Frakes 2011, p. 35, 51-65 argues that internal evidence suggests a terminus post quem of shortly after 390 CE, settling on between 392 and 395 CE. The author seems to have had access to the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, five jurists from the classical period who were also later appealed to in the Law of Citations of Theodosius II and Valentinian III issued in 426 CE, and surviving in the Theodosian Code 1, 4, 3. Some older scholars therefore argued that this means the author of the Collatio was writing after 426 CE (see Volterra 1930, p. 50). However, the works of these jurists were popular, and were used and copied in the fourth century. Moreover, Frakes notes that some of the works quoted from these authors is actually inauthentic material from the third and early-fourth centuries. For further discussion and bibliography relating to the dating of the text, see also the summary in Rutgers 2000, p. 215-217, who argues that the text could not have been composed any earlier than the beginning of the fourth century due to references in the text to the Codex Gregorianus (a collection of constitutions from Roman emperors from the second to late-third centuries CE, which was possibly collated at the end of the third century), and the Codex Hermogenianus (a collection of constitutions from the emperors of the first tetrarchy: Diocletian, Maximian, Constantius, and Galerius, largely from 293–294 CE).

47 Volterra 1930; see also Rutgers and Bradbury 2006, p. 504-505.

48 See Frakes 2011, p. 131; for a summary of other arguments related to Jewish authorship, see p. 130-135.

49 Frakes even suggests that the author’s efforts could be in response to the recent usurpation of Eugenius, and the moves by certain figures at this time to restore various aspects of paganism; see Frakes 2011, p. 149. However, such a precise historical context is problematic in that the Collatio could have been motivated by numerous factors, and not necessarily in response to such a specific event.

50 See Frakes 2011, p. 116.

51 Rutgers 2000, p. 217.

52 DE FURIBUS ET DE POENA EORUM.

7, 1, 1. Quod si duodecim tabularum nocturnum furem [quoquo modo, diurnum] autem si se audeat telo defendere, interfici iubent, scitote, iuris consulti, quia Moyses prius hoc statuit, sicut lectio manifestat. Moyses dicit: Si perfodiens nocte parietem inuentus fuerit fur et percusserit eum alius et mortuus fuerit hie, non est homicida is qui percusserit eum. 2. si autem sol ortus fuerit super eum, reus est mortis percussor: et ipse morietur. The Latin text is taken from Hyamson 1913, p. 92. The English translation is my own.

53 On theft in Roman law more generally, see, for example, Harries 2007, p. 43-58; for further bibliography, Frakes 2011, p. 273 n. 8.

54 Frakes 2011, p. 143.

55 Hyamson 1913, p. xl-xliii.

56 Frakes 2011, p. 141. Frakes points to Cicero, On the Ideal Orator 1, 48; De leg. 2, 19.

57 Harries 1998, p. 68. Fritz Schulz even suggested that this verse was an interpolation, due to the unusual nature of such a vocative address within the work and the fact that part of Cicero has seemingly been lifted without reference: Schulz 1936, p. 33-34. However, the very nature of the Collatio is such that it includes allusions and quotations to a variety of sources – biblical, juristic, and other legal material. If the intended audience was indeed well-read jurists, it would perhaps make sense that an allusion to Cicero might be included in order to show the literary credentials of the author. It could be that the quotation is taken from a legal manual (for instance, it appears in Quintilian’s Institutes of Oratory 5, 14, 18; see Frakes 2011, p. 274).

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