The "legalism" of Tertullian of Carthage — his profuse employment of the terms, concepts and idioms of Roman law, and of dramatic scenarios from the world of litigation and penal justice — is a traditional problem in early Christian studies. Was Tertullian a iurisperitus in his earlier life, perhaps even the Tertullianus whose work is attested in the Digest? Barnes' 1971 study argued against this view: the chronology was not quite right, and, in any case, knowledge of Roman law was not the exclusive purview of "jurists." Instead, Tertullian was displaying the fruits of an elite education in forensic rhetoric, which some members of his audience would have shared, and others would have been able to appreciate. Nevertheless, the debate about Tertullian's identity has continued: what sort of legal expert was he? or did he simply have an elite person's knowledge of the law? Meanwhile, the instrumental role of legal language in Tertullian's theology, as well as the significance of this language for our understanding of the Roman imperial world, have tended to be sidelined. It is this, arguably more productive perspective on Tertullian's "legalism" that will be the focus of this paper.
As noted by Momigliano, in his critical review of Barnes 1971, "the law and order of the Empire were not unwelcome to [Tertullian]. The mere fact that he chose Latin as his first language placed Tertullian in an unusual relationship to the Roman imperial tradition for a Christian writer." Thus, the choice of Latin in itself was far from neutral. Tertullian faced the problem that there was no developed Latin vocabulary for Christian theology, which had traditionally been written in Greek, adapting the lexicon of the Greek philosophers. Tertullian's solution was to take over the most advanced technical lexicon that existed in Latin: that of Roman law. But this was not simply the obvious choice — in fact, no other Christian writer would use legal language with the same intensity. In speaking the language of the law, Tertullian was also engaging directly with the language of imperial power, and evoking an enormously important domain in which empire affected the lives of provincials: the imperial system of criminal and penal justice, and the more mundane but no less important domain of petitioning, litigation and private law. For example, one aspect of Tertullian's theology that left a lasting legacy in African Christianity (particularly in the troubled times of the post-persecution era) was his development of the idea of Baptism as a verbal contract. At the same time as he harnessed the power of the Roman-law concept of stipulatio, Tertullian played with and manipulated this notion: contrary to what one would expect in the Roman law of contract, the broken contract of Baptism was not automatically dissolved by Christ, because his last will and testament (novissimum testamentum, a play on the New Testament) was immutable. To do violence to the intellectual framework of Roman law was a powerful way of presenting a new, Christian logic and world-order. Nevertheless, frightful penal sanctions awaited the ungrateful at the Last Judgment (De pudic. 12.9-10) - and here, Tertullian did not need to explicitly invoke the harrowing image of an imperial criminal court; it was already at the forefront of the imagination of his audience.
In the world of third-century Carthage, the language of the law had great hermeneutic potential. It was a versatile and conceptually sophisticated language, with which Tertullian could assume a remarkable degree of familiarity from his audience. The law was also an imperial language, imbued with great authority and power. Accordingly, Tertullian cultivated "the jurist" as a literary persona, an expert voice that expounded the lex Christiana to God's subjects. In both respects, Tertullian's works are striking testimony of the vibrant legal culture that had developed in Africa under Roman imperial rule.
This paper will develop the arguments outlined here, illustrating them with specific examples from Tertullian's works.
Roman Imperial Ideology and Authority