Philosophy-RAG-demo/transcriptions/HoP 316 - Just Measures - Law, Money, and War in Byzantium.txt

 Hi, I'm Peter Adamson and you're listening to the History of Philosophy podcast, brought to you with the support of the philosophy department at King's College London and the LMU in Munich. Online at historyoffilosophy.net. Today's episode, Just Measures – Law, Money and War in Byzantium. The welfare of the state springs from two sources, weapons and laws. With these words, the 6th century emperor Justinian put before his people the fruits of a remarkable undertaking. At his behest, a team of jurists led by the indefatigable Tribonian had gathered together centuries worth of Roman law. The result was a legal codification in three parts, the digest, codex and institutes, followed later by the so-called novels, that is new laws devised in Justinian's own reign. We've looked recently at other works that were basically compilations or presentations of earlier material, like Fodius's Library or the Suda, and hopefully we've learned to take such works of scholarship seriously, but none of them can match Justinian's legal corpus for influence. Written in Latin, it became the crucial source for Western medieval law when it was taken up by the jurists of 12th century Italy. And it was crucial in the East too, effectively supplanting previous Roman law and setting down rules that would be invoked in courtrooms throughout Byzantine history. This is exactly what Justinian had in mind. Any laws that failed to make it into his codification were rendered obsolete, effectively repealed by omission. This made it the point of reference for future generations of lawyers and judges, which had its downsides. We're talking here about a massive body of technical writing, and it was written in Latin, which was not the working language of the Eastern Empire. No wonder then, that future emperors commissioned further legal works in Greek. Under the iconoclast Isaurian dynasty, a selection of laws entitled the Ecloga, and under the Macedonian dynasty in the 9th century, a work called the Isogogae, or Introduction, which apparently involved the aforementioned Fotius. Around 900, the Emperor Leo VI, known as Leo the Wise, issued his own laws. And there are many other examples of smaller scale legislation being handed down by Byzantine emperors. We should be struck, if not surprised, by the fact that all this lawmaking was done in the name of individual emperors. As mentioned a few episodes back, it was a uniquely imperial prerogative to hand down new laws, a powerful expression of the emperor's supreme authority. Even if he was mostly in the business of reorganizing and reissuing earlier Roman juristic material, Justinian gave these old laws new force when they were uttered through his mouth, as his legal corpus puts it. This seems to have been a fundamentally secular project, but later emperors increasingly presented their legislating authority as an instrument of God's justice. Law in general is a gift from God to humankind, which leads us to happiness by laying down guidelines for justice. It's in keeping with this that, as we also observed a few episodes back, the emperors were increasingly encouraged to see themselves as falling under the law rather than dispensing justice from a position above the laws, as Justinian had done. In the legal introduction, Fotius made this point by describing the emperor as one of no fewer than three fundamental sources of authority in the Christian community, the other two being the Patriarch and the law itself. Quite likely, Fotius intended this as a political image of the Trinity. We normally assume that judges need to follow precedent, but also that new laws overturn old laws. In theory, this was also the case in Byzantium. In practice, though, the Justinianic corpus had such weighty authority that it was difficult to resist. We can see this from the legal writings promulgated under Leo the Wise, which are ambitious in tone and rhetoric, but actually rather modest as an attempt to revise the existing law. He sought to borrow some of the glamour of the legal productions that had put the just in Justinian, even going so far as to imitate him by putting out a collection called the Basilica, meaning imperial laws, containing a digest, codex, and novels. But this was not nearly so radical a project as its model. Leo reorganized, but mostly retained the old laws, albeit now in Greek. One interesting idea we do find here, though, comes in Leo's statement that he is in many cases elevating custom to the status of law. In other words, certain practices that have become widespread should be given a legal basis so that they can be properly enforced. Conversely, such customs as Leo thinks are not so wise will be overturned by depriving them of such enforcement. All of this may give an impression of a rather conservative, even stagnant, legal worldview on the part of the Byzantines, which may not be such a bad thing. One man's stagnation is another's reassuring stability, and emperors who dared to innovate in their legislation were criticized in historical chronicles for ruling by arbitrary fiat, rather than in accordance with the laws. This criticism was directed at Constantine X by the historian Atalaides, for instance. But we also need to remember that individual judges and rulers had considerable discretion in applying the laws, and that lawyers could exercise great ingenuity in their arguments. As a contrast to the more rigorous attitude expressed by Atalaides, we might mention Michael Psellos, because it's become a custom if not a law that every podcast episode should mention him at least once. Law was one of the many subjects Psellos studied and taught, though its practical dimension seems to have bored him. He speaks rather dismissively in the encomium to his mother about the way that practitioners of legal theory, which he calls the science of the Italians, wind up dealing with tiresome cases where people have been gored by bulls or bitten by dogs. Elsewhere, he praises emperors precisely for using good judgment instead of applying the laws, and writes letters appealing to correspondents to follow the incitements of friendship rather than legal niceties. When he himself writes in a legal context, as in an accusation directed against a patriarch on behalf of the emperor Isaac Komnenos, Psellos mostly uses the tricks of a different trade, namely rhetoric. This gives us an insight into how philosophers might think about the courtroom. Aristotle's rhetoric, whose study will soon be revived thanks to Anna Komnene, investigates how the rhetorical art can be used in legal speechmaking, and despite Psellos' more formal legal training, it is this approach that he carries on in his polemical writings. So far, I've been talking about laws rather generally. What were the laws actually about? The quick answer is that Justinian's laws were about everything. Criminality, business, family relationships, and even religion. We're familiar with the contrast made in the Latin West between canon and civil law. Canon law applying to ecclesiastical affairs and civil law to the secular realm. That contrast exists in Byzantium too, but in both Christian cultures, the line was a rather blurry one. The oldest works of canon law predate Justinian, and remind us that Eastern Christianity is about more than what happened just in Constantinople. One very early collection from about 500 AD is in Syriac, but as with civil law, it was the codification of Justinian that laid down a platform for subsequent legal writing. His Codex in particular has much to say about church affairs, laying down sanctions for heretics, rules for monastic life, and so on. Shortly thereafter though, the two kinds of law became more independent because the determinations of church councils were recognized as a further basis for canon law. Thus, we later have famous councils with rulings on matters like iconoclasm. There would be many attempts to disentangle the political and legal spheres of the church and secular state, for instance in a synod of 1115 which forbid clergy to hold state offices. But the religious standing of the emperor, and the fact that the Patriarch of Constantinople lacked fully independent authority, meant that in Byzantium, the separation between church and state was less marked than in Latin Christendom. On the secular side, one of the primary functions of Byzantine law was to regulate economic affairs. There were rules about legal contracts, inheritance, and ownership of everything from land to slaves. Slavery was, unfortunately, accepted as legitimate by the church. The legal machinery of the empire was also directly concerned with finances, insofar as the royal treasury and its tax collectors kept track of who owned what, and also because confiscated property and fines flowed into the coffers of the emperor. In one letter, Salas is frank enough to recommend someone for the post of judge on the grounds that he will help increase state revenue. Much as we've just seen with canon law, on the economic front there were parallels to the Latin West, but also differences. The biggest contrast was the centralized authority of Constantinople, which was lacking at the West. The emperor's dominance over the economy was buttressed by the practice of demanding taxes and money rather than in payment in kind, like foodstuffs, meaning that the proceeds could more easily find their way to the capital rather than being exploited locally. Indeed, imperial hegemony was inextricably linked to the physical coins minted in the emperor's, and occasionally Empress's, names. Today's historians learn about political dynamics on the basis of the portraits stamped onto the coins. You may recall how Irene had her image depicted alongside that of her son when she was his regent. Even the physical form of the coin can be informative. A nice example is the gold Miliaresion, issued under the Azarian dynasty, which was modeled on the dirham of the then-dominant Islamic empire. The power and geographical spread of the Byzantine realm meant that its coins served, in the words of one modern-day scholar, as the dollar of the Middle Ages. But there was a constant threat of debasement, that is, reduction in the amount of precious metal in the coins, and people of the time were well aware of this. Michael of Ephesus realized that coins themselves are a kind of commodity that can fluctuate in value, and some historical chroniclers complained about emperors who introduced relatively valueless currency. As one measure, to help them avoid debasing the money, emperors legislated against the export of precious metals from the empire. And there are other signs that rulers were alive to the threat of trade imbalances, as when the Nicaean court, established after the crusader's sack of Constantinople, tried to shore up its precarious position by forbidding the enjoyment of imported, luxury items. As these examples suggest, the Byzantines tended to assume that economics is a zero-sum game, in which resources can only be redistributed without the overall wealth of society being increased or decreased, except when wealth is exported to, or seized from, a rival power. This assumption is manifested in an abiding concern with the relations between rich and poor. No less an authority than the Bible stated, the poor you will always have with you, and though the rich and powerful were encouraged to show generosity to the poor rather than exploiting them, there was no thought of trying to lift all of the poor to a more prosperous state. One famous case was a new law, or novel, introduced in the year 934 by the emperor Romanus Le Capenos. It attempted to prevent the rich from increasing their holdings by buying up land from poorer tenants. This initiative was, to put it mildly, not entirely successful. Indeed, scholars have often spoken of a Byzantine version of medieval feudalism in which the poor become tenants on vast estates. That is potentially misleading in that the tenants seem to have retained a greater degree of freedom than in the feudal states of Western Europe, and also because, as we've already said, political and legal authority was more centralized in the East. The Byzantine context is free of, say, local lords exercising their own brand of justice in feudal courts. From a philosophical point of view, a particularly important feature of Romanus's legislation from 934 is that it defined an illegally unfair sale as one in which the land was purchased at less than half its true value. In itself this was nothing revolutionary. The half-price rule went back to the Roman laws gathered together by Justinian. But the new law was unusually bold in its protection of the seller, dictating that in such a case the buyer would simply forfeit ownership with no restitution. The rationale underlying the law is also intriguing as it seems to presuppose that a given parcel of land does have an objective, absolute value, instead of assuming that its value is just determined by whatever it can fetch on the market at a given time. That same assumption may lie behind the way that the Byzantines taxed land, not on the basis of the agricultural yield in any given year, but simply in light of the land's permanent features of size and quality. More generally, attempts to fix just or maximum prices for a range of goods go back to the Roman Emperor Diocletian at the dawn of the 4th century. As any economist would predict, though, the attempts of the authorities to hold prices at a maximum level were constantly undermined by activities on the ground that were closer to a free market. The historian Attilaites has a passage on this phenomenon in which he describes Michael VII's attempts to fix grain prices, supplanting a previous situation where buyers were able to go from one grain dealer to another looking for the best deal. Attilaites also astutely noticed that when the price of a fundamental commodity like grain goes up, it drives up other prices and also wages. There's one other area of economic activity that you might expect to be restricted in Byzantine culture, lending with interest, or usury. As discussed back in episode 286, this was a matter of intense concern for Latin Christians routinely condemned by Western theologians. But the situation was more relaxed in the East. The civil law allowed usury with certain restrictions, and canon lawyers respected this ruling. Still, a number of religious writers did inveigh against the greed of rapacious moneylenders. Gregory Palamas would call usury the child of vipers. The most interesting text on this is by a thinker from 14th century Thessaloniki named Nicholas Cavassilas. He was a staunch defender of property rights. Without the ability to acquire property, he argued, no one would have a motive to work. But he was an equally staunch critic of usury. He wrote a polemic against it that is particularly worth reading for the opposing arguments he considers and refutes mounted in defense of usury. One argument is that lending with interest is acceptable because the borrower enters into the contract willingly. Like some Western medieval critics of usury, Cavassilas replies that economic need is effectively forcing the borrower to accept whatever terms are available so that it is not truly voluntary. He also considers the point that if the civil law allows usury it is surely not evil. Here his response is that maximum limits are placed on interest rates. This shows that the lawmakers had a critical attitude towards the moneylenders and ideally they would prefer that we not engage in this sort of business at all. A more general moral concern with poverty is of course frequent in religious literature of the period. But perhaps no Byzantine text captures the issues so well as the Dialogue Between Rich and Poor, written by Alexios Makrembolites at Constantinople in 1343, hence in a time of upheaval as the empire was in its final decline. Alexios is obviously on the side of the poor, who are shown accusing the rich of selfishness and of failing to help their needy fellow humans. So greedy are the rich that if they could, they would appropriate the sun for themselves and prevent the poor from enjoying its rays. The rich should instead imitate God and His infinite generosity. Indeed, the whole purpose of wealth is nothing other than the aid of the less fortunate. All of this is heartfelt, but not particularly groundbreaking. Much as with Cavasilas's treatise on usury, this dialogue may be more interesting for the counterarguments brought forward by the rich. They defend themselves on the grounds that there is no obligation to help those who have performed no service, and that it is simply in the nature of things for the poor to suffer. Besides, the rich point out, they have their own problems with the government coming to tax them and meddling in their affairs. Sounds familiar, doesn't it? Let's now move on to one final topic that follows naturally from the spectacle of the rich ignoring the needs of the poor, warfare. Actually, there was no class warfare in Byzantium, nothing like a peasant's revolt. But there were plenty of other wars, and plenty of writing about the topic, including theological discussions of the moral status of soldiers, and military manuals on the best strategies to use in battle. Again, there are parallels to the medieval West, with the difference that, according to some scholars, the Byzantines were far less belligerent than the Latin Christians, and also compared to contemporary Muslims. They launched no crusades, no jihad, but largely fought wars of defense or to reclaim lost territory. In one military text, the Tactica, written under none other than Leo the Wise, we even find the statement that war can be justified only as defensive territory from an invading enemy. Yet, the Byzantines were obviously not pacifists, and their avoidance of aggressive warfare was probably more a matter of judicious caution and military weakness than moral principle. One other factor to consider, though, is that the Byzantines may have lacked an ideology of religious warfare, such as we see in the two medieval cultures that surrounded them on either side. Did they have the notion of a holy war? The answer is not a simple one. The idea of war as holy, or encouraged by God, did not sit well with the Christian commandment not to kill, and already in antiquity, Greek church fathers had critical things to say about the life of soldiering. Origen had encouraged Christians to struggle towards faith, not with the sword. An influential passage in St. Basil suggested that soldiers were so morally tarnished by their deeds that they should refrain from taking communion for three years after killing in battle. Yet, religious regalia and rituals were frequently adopted by the military. Icons might be placed on city walls or gates during a siege as an additional protective measure. The army was encouraged to fast before battle in hopes of securing God's favor. Prayers were a standard part of imperial triumphs celebrating victory in the field. Christianity was then part of warfare, just as it was part of every other aspect of life in Byzantium. But acknowledging this is not the same as speaking of holy war. God, Christ, the Virgin and the Saints were regularly invoked in conflicts with the infidel, but also in internal conflicts between Christian armies. Thus we have, to give only one famous example, the Emperor Basil II riding off to do battle with Bardas Fokhas, holding an icon of Mary. Furthermore, Byzantine intellectuals were dismissive of some aspects of holy war ideology known to them from other cultures, such as the Muslims' belief that fallen warriors would go directly to heaven and the idea that crusaders would have their sins remitted. For them, it was nonsense to suppose that you could free yourself from the saying of sin by going to war. If anything, fighting would expose you to further evils, even if the evil in question was a necessary one. In this episode, we've been looking at some of the more practical concerns of Byzantine society and bringing out the philosophical relevance of texts and discussions about these concerns. But there's another way that we can approach Byzantine texts from a practical perspective. We can think about them as physical objects. Nowadays we tend to think of writing as information, information that can be transmitted electronically, copied effortlessly, and perused on anything from a paper printout to a phone. But in the medieval era, texts were unique physical objects, copies perhaps, but if so, then copies with their own idiosyncrasies, mistakes, organizing notations, and comments in the margin. This is something I've mentioned many times here on the podcast because I think it's important for us to understand how philosophical literature was transmitted in earlier times, which ultimately explains how we're able to read it today. Next time though, we're going to get into this topic in unprecedented detail as we devote a whole episode to Byzantine manuscripts. Just be glad you won't have to read it in my handwriting, which is terrible. That's here next time on the History of Philosophy Without Any Gaps. Thank you.