The punishment of thieves
The Collatio legum Mosaicarum et Romanarum (Comparison of Mosaic and Roman Laws), otherwise known as the Lex Dei (Law of God), is a fascinating source which witnesses a fourth-century attempt at creating comparative law. As such, it is a vital source for our purposes, demonstrating the desire of a likely Christian, but possibly Jewish compiler to marry Roman law with biblical law, not only minimising any tension that was understood to exist between the two, but also to make the suggestion that the latter directly influenced the former. Indeed, this is particularly evident in the present passage. For a more detailed introduction to the Collatio, please see the commentary on titles XV and XVI. Here, a briefer overview is given prior to the discussion of the specific passage quoted above.
In total, 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), with parallels from Roman law intended to highlight their compatibility. The present title is an anomaly in that usually, the biblical text is cited first, followed by the Roman legal references. However, here, we see Roman legislation appealed to first. The commentary below will discuss this further. The compiler seems to have had access to the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, five jurists from the classical period who were later also 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 argued that this means the compiler of the Collatio was writing after 426, however, the works of these jurists were popular, and 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 (Frakes outlines further internal evidence for his more precise dating of the text to between 392-395 CE, which cannot be detailed here in the interests of space, but see Compiling the Collatio, p. 35, 51-65).
The precise identity of the author/compiler is not known, but scholars have identified this individual as a Jew, or alternatively as a Christian whose aim was to show pagan lawyers that the Christians could appeal to a long-established legal tradition which was not only older than that of the Romans, but compatible with it. The sources used indicate a lawyer with a good Roman legal education. 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, Edoardo Volterra put forward the theory that the author was a Jewish Talmudic scholar aiming to explain Judaism to the Roman elite (see Volterra, Collatio; see also Leonard Rutgers and Scott Bradbury, “The Diaspora, c. 235-638,” p. 504-505, who argue that the author was most probably Jewish, familiar with early Christian attacks on the Mosaic law, and was concerned about the legal position of Jews living in the later Roman empire). However, this suggestion, while taken up by others since, has been challenged on several grounds. For instance, emendations of the biblical texts are used make them less akin to the Hebrew text and the Greek of the LXX, and more akin to the Old Latin Bible (see Frakes, Compiling the Collatio, p. 131; for a summary of the other arguments related to Jewish authorship, see p. 130-135). In 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 and the Didascalia Apostolorum, as well as Tertullian’s assertion in his Apology XLV.4 that Roman laws are derived from those of Moses. Frakes’s suggestion is that the author was a Christian jurist in Italy who wished to get pagan colleagues on side. The question remains open as to whether the author of the text was Jewish or Christian, but we are slightly more inclined towards the latter. As we shall see in the discussion that follows, the present extract has been key in the debate as to who precisely the compiler of the text might have been addressing.
As stated above, this passage from the seventh title, which deals with punishment for thieves, is particularly interesting because unlike the rest of the Collatio, the Roman law, specifically the Twelve Tables in this instance, is appealed to first. The Twelve Tables of the early Republic are the earliest example of Roman law that the compiler appeals to, and in that sense show that he seeks to take a holistic view of Roman legal tradition which is aware of its most ancient form in addition to later legislation (such as the legislation of Theodosius I, mentioned in title VII).
Because this chapter reverses the usual format of the Collatio, which offers a Mosaic law followed by several complementary Roman laws, the tone is noticeably different from the outset. However, the compiler 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 (punishment of thieves), but rather continues quite to the contrary with a more clearly articulated assertion of the superiority of the Mosaic law. The unusual opening clause regarding the Twelve Tables, borrows from Cicero, For Milo III.9, who 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 (on theft in Roman law more generally, see, for example, Jill Harries, Law and Crime, p. 43-58; for further bibliography, Frakes, Compiling the Collatio, p. 273 n. 8). The law of the Twelve Tables (lex duodecim tabularum) was understood in Roman tradition to be the foundation of Roman law. Tradition held that after the fall of the last Roman king, Tarquinius Superbus, conflict arose between the patrician and plebeian classes, resulting in an envoy being sent to Athens by the decemviri to copy the laws of Solon, and to observe the institutions, customs, and laws of other Greek States (Livy, History of Rome III.31.8-33.7). The resulting Twelve Tables were formulated to outline basic rights for all Roman citizens. Livy describes in his History of Rome III.34.5-6 the completion of the first ten tables in 450 BCE, with the final two being completed the following year. The compiler of the Collatio impresses upon his audience that Moses ordained earlier the same punishment for thieves that the Twelve Tables lays out. Moreover, it is stated that “a close reading” will make this clear, suggesting that the compiler has direct access to the biblical text he refers to, in this instance, Exodus 22:2-3, and was familiar with it. An interesting comparative source is the work of Ambrosiaster, who argues that because Roman law (specifically its understanding of natural law) had part of its basis in Greek legislation (due to the Twelve Tables being inspired by the laws of Solon), and Greek law was inspired by that of the Hebrews, then Roman law can also be understood to be partly derived from the Mosiac law (see the commentary on Ambrosiaster’s Commentary on Romans 7.1, and see also his Questions on the Old and New Testaments 75.2).
Similarly, 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 its laws anticipated the legislation that would be made by the Romans (see Frakes, Compiling the Collatio, p. 143). On the other hand, the fact that the author looked to Hebrew laws, however, raises the question of whether a Jewish, rather than Christian identity might be preferred. This is not a necessary conclusion, as aside from the fact that Christians did indeed have much respect for the Hebrew Scriptures, the New Testament does not feature much in the way of specific laws, meaning that the Mosaic laws would naturally be a more logical place to turn if one was aiming to convince pagan legal specialists. Tertullian, in his Apology XLV, is compelled to do something similar (although his purposes are apologetic – he is not attempting to win over a group of Roman legalists), also arguing that Roman laws have their origins in the divine law of God which Moses recorded.
The fact that this verse of the Collatio directly addresses “jurists” (the translation of iuris consultis offered by several scholars) and suggests that they should know that Moses had said similar things to that prescribed in Roman law has caused scholars to debate whether we might have in this short extract a further clue as to whom the Collatio was composed for. For instance, Moses Hyamson suggested perhaps legal advisors for bishops in episcopal courts were in mind (see Hyamson, Mosaicarum et romanarum legum collatio, p. xl-xliii). Frakes, however, argues that the phrase iuris consultis could simply mean “lawyer” in earlier Latin (as in Cicero, On the Ideal Orator I.48; On the Laws II.19), or by this point in Roman history experts of the law, perhaps who were active in government circles (Compiling the Collatio, p. 141). 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 (“How to Make a Law Code,” p. 68). Fritz Shulz 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 (“biblischen Texte,” 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 compiler. It could be that the quotation is taken from a legal manual (for instance, it appears in Quintilian’s Institutes of Oratory V.14.18; see Frakes, Compiling the Collatio, p. 274).
While the opening to the seventh title of the Collatio might be of particular use in helping us to understand the compiler’s purpose and audience more precisely, it is still difficult to say anything for certain regarding these questions. In what may seem an ironic ordering of material, the reversal in this chapter of the common pattern that is utilised throughout the work, where Roman law is presented after that of Moses, actually functions to highlight not only the similarity and agreement between Roman and divine law, but also that the latter set the precedent for the former. The instructions outlined in the Twelve Tables may well agree with what is written in Exodus, and this illustrates the compatibility of the two bodies of law, but those versed primarily in Roman law are reminded that their own legislation is not original.
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