Cambridge Ancient Hi.. - Index of

christianity and laws on the family 395
slightest concern for Christian values, we cannot escape the fact that the
very same measures were susceptible to Christian interpretation only a very
few years later. Thus, while we may deny Constantinian legislation the
status of ‘subjective’ Christianity, we must at least grant it that of ‘objective’
Christianity. And, above all, we cannot forget that the morality of a
man awaiting ‘divine judgement’ was something irremediably new, no
matter how pervaded by traditional elements it may have been.
The affinity between certain traditional values and the inspiration of
many late antique constitutions is, in fact, an argument often used to
negate the influence of Christian ethics on secular law. This, however,
does not place the phenomenon of historical continuity in its true
context. In nearly every manifestation of late antique society, living survivals
from the past are readily detected, and even its dead fossils. They
appear in institutions, social relations, general behaviour, material culture,
art and thought. And yet late antiquity was clearly a new age. Continuity
may be displayed by individual details, but it is the discontinuity that
shows up when we observe the system as a whole.
Another frequent means of negating the Christian influence on certain
family laws is to accentuate the concrete, and not the spiritual, objectives
of the legislators. We have already seen this in the case of the Augustan legislation
on marriage. In the case of the Constantinian law punishing the
unmotivated breach of betrothal, its Christian inspiration has been minimized
by stressing the difference between the secular punishment and the
religious sanction. Fines, it is claimed, were foreign to Christian prescriptions
10 – an argument that verges on the absurd, for it implies that in
Constantine’s day a secular power could impose religious sanctions and that
a religious power could inflict material punishment.
A similar interpretation has even been advanced to explain the laws limiting
unilateral repudiation and penalizing second marriages, laws that most
people would quite rightly see as Christian-inspired. But since the emperors
sometimes explicitly invoked the favor liberorum and not the respect of
morals and religion, it has been inferred that the principal, if not sole, aim
of such laws was to protect children from the property point of view. 11 But
surely it is not at all surprising that a legislator should stress the aspects that
bore upon Realien, or that he should highlight the argument to which most
citizens could relate, regardless of their faith and the depth of their religious
convictions. Indeed, such an approach was all the more necessary in
matters like divorce and second marriage, for these were issues on which
the imperial citizens were more traditionalist (as we shall see below).
Besides, in the history of the family, questions of morality and property are
10 Gaudemet (1978a) 196.
11 Gaudemet (1950) 186; Bagnall (1987) 51ff.; Arjava (1988); Brown (1988) 430.
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