Roman laws are descended from those of Moses
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For a general introduction to Tertullian and his Apology, please see the commentary on Apology V.
In the present passage Tertullian compares the law of the Gospel with the Mosaic laws and the laws of men, which in this case is those of the Romans. He also comments that the laws of the Romans can be traced back to those of Moses, which are much more ancient (this same sort of reasoning is found in Philo, who argues that the best aspects of Greek philosophical teaching go back to that of Moses). Tertullian argues that the Romans do not realise, but their law is derived from the divine law of God. Both the antiquity of the laws of Moses, and the youthfulness of Roman traditions, gods, and institutions, have already been asserted by Tertullian in chapter XIX of the Apology, and a discussion of this chapter, along with chapter XXI, will provide important context for understanding the present extract from chapter XLV. In chapter XIX, Tertullian lists various figures and events which are recorded in the Roman histories that Moses far predates. For instance, it is claimed that Moses lived three-hundred and ninety-three years prior to Danaus, the brother of the mythical Greek king Belus, and eventual king of Argos, about one-thousand years before the Trojan War, and fifteen-hundred years before Homer. Indeed, Moses was earlier than Saturn (XIX.1). Moreover, Tertullian claims that the Hebrew prophets who came after Moses still all predate the earliest of Roman sages, lawmakers, and historians. Here, Tertullian seems to be refuting Tacitus’s claim in his Histories V.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 XLIV; LIV; LIX; Theophilus, To Autolycus III.20-29; Tatian, Oration to the Greeks XXXVI-XLI). Tertullian does not appeal to these earlier Christian authorities, however, but rather to Josephus (see Apology XIX.6 in which Tertullian acknowledges Josephus’s prestige). Tertullian’s argument is similar to Josephus’s statement in Jewish Antiquities I.16, where he claims that Moses was born two-thousand 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 Mark Burrows, “Christianity in the Roman Forum,” p. 225).
The antiquity of the Mosaic laws are particularly important for Tertullian, because Moses’s writings encompass not only the whole of what is essential to Judaism, but Christianity as well (XIX.2):
“So all the subject matter, all the material, all the origins, chronologies, sources, of every ancient pen you know—yes, and most of your races, your cities, famous in history, hoary of memory—no, the very shapes of your letters, those witnesses and guardians of the past—and (for I seem to be understating things), I say, add your very gods, temples, oracles, rituals and all—the book of a single prophet notwithstanding beats them all, with centuries to spare,—that book in which is seen summed up the treasure of the whole Jewish religion, and in consequence ours as well” (the translation used is that of T. R. Glover, Tertullian, Apology, p. 97, 99, slightly modernised).
As has been discussed by Mark Burrows, later on, in chapter XXI.6, 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. The Christians are understood to have succeeded where the Jews had failed: “The day should come when in the last courses of time God would from every race, people and place gather Himself worshippers far more faithful, to whom He would transfer his favour” (Glover, Tertullian, Apology, p. 105). In Tertullian’s view, then, there is a significant degree of continuity in that as outlined in chapter XIX, Christianity has inherited from Judaism a great and ancient set of traditions, notably the Mosaic laws. However, Christianity is merely the representative of the Jewish tradition, it is not tied to it (see Burrows, “Christianity in the Roman Forum,” p. 226). In XIX.1, Tertullian reasons, in an utterly apologetic manner, that because Judaism (and particularly Moses) long predates Roman history, Roman law derived from Jewish law. The transfer of God’s favour from Judaism to Christianity therefore had wider consequences, as Christians are now the heirs of the law which had “fertilized” (concipio) Roman law: “So it can be seen that your laws and your studies alike were fertilized from the [Hebrew] law and teaching of God; the earlier must be the seed. Hence you have some tenets in common with us, or very near us. From Sophia men call the love of wisdom philosophy; from prophecy comes, by emulation of it, poetic ‘vaticination’(vates refers to a bard or prophet; see, e.g. Horace, Odes II.6.24; IV.6.44; Virgil, Aeneid VI.65).” (XIX.1; see Burrows, “Christianity in the Roman Forum,” p. 227).
In the present passage from chapter XLV, Tertullian argues that Roman law is first and foremost a human institution. Any concept of innocence (and implicitly guilt) which is contained within Roman legislation is created purely by men. For this reason, Roman law is incomplete, and does not exert the same degree of power and authority as divine law. Indeed, it is not as effective at ensuring that those subject to it remain innocent, because manmade law cannot inspire the same level of fear. As Andrea Villani explains, this chapter presents innocence essentially 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 perfection. This is why the followers of God’s law have more to fear than those who merely adhere to human/Roman law; the threat of eternal punishment means that Christians have more reason to remain innocent (Villani, “Nos ergo soli innocentes,” p. 121-124, quotations at p. 123).
Section 3 of the chapter is intriguing, as continuing with his argument that human, i.e. Roman law, is inferior to God’s law, Tertullian juxtaposes several items. The suggestion is that the first item in each pairing is the human law, and the latter the divine law. However, Tertullian seems to draw upon the famous “antitheses” of Matthew 5:17-48, which see Jesus offering “improved” versions of the laws given to Moses (some scholars prefer to understand this as Jesus’s 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 Paul Foster, Community, Law and Mission, p. 94-143). Against anger see Matthew 5:21-22 (see also Colossians 3:8 and Titus 1:7; for these references, Robert Sider, Christian and Pagan, p. 65). Against lustful looks, Matthew 5:27-28; against speaking evil (false swearing of oaths), Matthew 5:33-37; and against retaliation, Matthew 5:38-39. It is likely that in line with his distinguishing of Christianity from Judaism elsewhere in the Apology (as we have seen in the chapters discussed above), Tertullian here aligns the Mosaic laws with those of the Romans in order to maintain some exclusivity for the way that the Christians now practice the ancient laws of the Jews – i.e., while they have inherited Judaism’s ancient traditions, the Christians are superior, hence the reason God’s favour has transferred to them from the Jewish people. 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 really derived from the ancient laws of Moses while maintaining a distance between Christianity and Judaism. As Andrea Villani argues, in XLV.4, Tertullian admits that a good Roman law can exist, but this is only because they are drawn from ancient divine law: “you must recognize that your own laws, which seem to tend to innocence, drew from the divine law, which is the more ancient pattern.” If a law “tends towards innocence” then it must come from God, and because the Romans have no true God, they must have utilised the law of the Supreme God (Villani, “Nos ergo soli innocentes,” p. 124-125). Andrew Jacobs argues that Tertullian’s assertion that Roman law is borrowed from divine law is double layered. Firstly, he states that “there are overtones of hostility and superiority: Roman magistrates, who insist that ‘the laws are supreme in their own domain’ (Apology I.3) should realise that the roots of their own legal mentality do not run as deep as the biblical foundation of Christianity (divina lex).” This said, Jacobs claims that there is also an undertone in Tertullian’s statement of appeasement, in that while Roman law is borrowed from divine law, the Christians show their loyalty to the Roman state every day (see, for example Apology XXX.4) (“Roman Christians and Jewish Law,” p. 85).
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 can “bear a fuller discipline” than the Jewish people (XXI.6). 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 XIV, 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 (“Christianity in the Roman Forum,” p. 226). This is likely why Tertullian emphasises in XXI.6 that the Christians who will inherit God’s favour are gathered from “every race, people and place”; unlike Judaism, one of the key advertising points for Christianity was that it was non-exclusive, and was for all peoples. This provided a connection with Rome in that the latter prided itself on its incorporation of numerous peoples into the empire. Tertullian sees a new bond emerging between God and the Roman empire, made possible via Christianity. While Roman traditions and institutions, notably Roman law, were borrowed from Judaism, this “line of continuity” now had to be found in Christianity, which was the present representative of Judaism’s traditions (Burrows, “Christianity in the Roman Forum,” p. 226).