Carl R Rice
Between 389 and 399 CE, the Roman emperors Valentinian II, Theodosius I, Arcadius, and Honorius issued a series of laws directed at a heretical Christian group known as the Eunomians (CTh 16.5.17 (389), 23 (394), 25 (395), 27 (395), 34 (398) and 36 (399)). Prominent among the rights under discussion in these laws was the ius testamenti faciendi (i.e., the legal right to make a will under Roman law). The rapid-fire promulgation of these laws and the tantalizing, decade-long legal back-and-forth—wherein these emperors alternately stripped and restored legal privileges, rescinding, renewing, and rescinding again legal precedents—offer a revealing look at the discourses around what constituted an imperially-sanctioned, normative understanding of religio and its relationship to legal personality and civic subjectivity at the end of the fourth century. In other words, the state tied the law of property to religious conformity and/or deviance and turned to ownership and transfer of material goods to impose its will on its subjects.
Indeed, the interpellation of Eunomians in these and in other laws in the Theodosian Code has drawn some attention in recent literature. Escribano Paño (2007), for instance, focuses on exile-punishments in the laws as social and political marginalization, while Stachura (2006) understands these testamentary regulations as attempts at codifying the consequences of infamia articulated in the so-called “Edict of Thessalonica” (CTh 16.1.2 (380)), which formally declared Nicene Christianity the religio of empire. Despite these interventions, however, these legal enactments, reversals, and re-constitutions merit further study in the broader context of religion and government in the late fourth century.
In this paper, I examine this series of anti-Eunomian legislation as a case study to explore how imperial hegemons used the long-standing principles of property law to order their subjects and to encourage conformity to normative ideas of religio. The anti-Eunomian laws (and their broader legal context) demonstrate the fluctuating discourses about religio and imperial subjectivity in an epoch of profound and long-lasting religious transformation. I argue that these laws were part of a larger complex process by which the Roman imperial state of the third, fourth, and fifth centuries employed a variety of apparatuses to encourage adherence to particular ideas of religio. The ownership and transmission of property was one such important mechanism. As I demonstrate through these laws’ emphasis on the ius testamenti faciendi, the late Roman state frequently intervened in property relationships as part of its coercive agenda. Through regulation of the ius testamenti faciendi (and other testamentary and proprietary rights) the state determined who could own and who could receive property under Roman law. Moreover, as these laws show, in the third and fourth centuries, religio became an important determinant of access to this and other legal privileges.
Law and Society in Late Antiquity