Cambridge Ancient Hi.. - Index of

law and society 399
and feasible compromise between evangelical perfection and the hard
realities of life.
It is incidentally worth noting that the difference between the religious
and legal sanctions was not always a matter of the former being stricter
than the latter. The formula certainly holds true for divorce, an area in
which the secular legislators long evaded the aspirations of the church. On
other issues, however, it was the imperial laws that applied unduly severe
criteria, which the church preferred to avoid. For the crime of abduction,
for example, an imperial law specified the death penalty, 24 while two
Basilian ‘canons’ merely inflicted penances of a few years, not to mention
the additional possibility of contracting a lawful marriage. 25 Such severity
in the secular legislation must also have contributed (in the form of additional
psychological pressure, if nothing else) to strengthening the bishop’s
role as a mediator, as a man who healed family conflicts and did his best to
avoid the extreme consequences that would ensue if the interested parties
became involved in the sphere of criminal law.
From today’s perspective, centred as it is on our view of the modern
state, the relationship between Christianity and the law is invested with an
importance that the late antique church authorities would hardly have
shared. To them, Christianization could take many forms, and there was
nothing that made the collaboration of the secular legislator the most
effective instrument or even, for that matter, an essential requisite.
It is unrealistic, therefore, to measure the Christianization of family legislation
against the rigid criteria of doctrine. What the term ‘Christianization’
can – indeed, must – suggest is an extremely slow process accompanied by
deviations, corrections, accelerations, delays and short-lived measures: in
other words, all the elements we generally associate with the major phenomena
of acculturation. It was not an already formed system that inexorably
pervaded the whole of society, but a formative process. And to pose the
problem of the coherent Christianization of family law in the fourth, fifth
and sixth century is simply anachronistic. Even a half-millennium later, in
both east and west, the process was anything but complete.
ii. law and society
Dialogue between the two powers, the religious and the secular, was difficult,
but was aided by the fact that both shared the same culture of control, one
that extended from public life to the intimacy of the couple.
24 C.Th. ix.4.1 (326); in C.Th. ix.4.22 (349) the summum supplicium inflicted by Constantine was
replaced by the capitalis poena. The severity of the punishment has been used to deny the influence of
Christian morality on these laws: Castello (1988); Evans Grubbs (1995) 191. The combination of repressive
and protective aspects in Constantine’s law has been rightly emphasized by Beaucamp (1990) 113.
25 Bas. Ep. 199, can. 22 and 30; Karlin-Hayter (1992) 138; Laiou (1993) 134ff., with particular reference
to the matter of the woman’s consent.
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