Monday, November 9, 2015

2015.11.14

David Wagschal, Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381-883. Oxford early Christian studies. Oxford; New York: Oxford University Press, 2015. Pp. xx, 331. ISBN 9780198722601. $125.00.

Reviewed by Zachary Chitwood, Humboldt University of Berlin (zachary.chitwood@hu-berlin.de)

Version at BMCR home site

Preview

David Wagschal's new monograph (based on his 2010 Durham University dissertation) treats the language and structure of Byzantine canon law collections over the course of the first 500 years of the tradition and is a welcome addition to a field of study for which there exist exceedingly few resources in western languages, least of all English.1 It is a credit to Wagschal that future scholarly endeavors of this sort will have to take account of his examination.

Building upon the pioneering work of the Frankfurt School, a group of legal historians housed at the Max Planck Institute for European Legal History in Frankfurt best known for their excellent editions of Byzantine legal texts, Wagschal is well-placed to explore the formation of Byzantine canon law. He has an impressive command of modern languages, and in particular takes advantage of Russian scholarship, which until the first decades of the twentieth century was incredibly important for Byzantine Studies in general and Byzantine canon law in particular. He is also acquainted with scholarship in Modern Greek. It is one of the great strengths of Wagschal's study that he is able to tie together the work of professional scholars of Byzantine law (e.g. the Frankfurt School) as well as that of clerics of the Orthodox Church. This is not an easy balancing act but he manages it quite well most of the time.

In his introduction Wagschal defines his study as an examination of how Byzantine canon law was intended to work; as such he quite explicitly refrains from contextualizing the implementation of canon law in practice. In order to counter what he terms the "primitivist" and "declinist" narrative of the development of Byzantine canon law, he sets out to explore the language and structure of Byzantine canon law by comparing it to modern legal culture or "legal formalism", an approach pioneered by Dieter Simon for Byzantine secular law.2

Chapter One offers a fairly standard narrative of the broader historical development of the Byzantine canon law collections. In essence, it traces the emergence and long-lasting influence of the Nicene corpus of canons, which became the basis of canon law collections in the Greek, Latin and Syriac milieux. Over the centuries, layers of new canons were gradually added to the base of the Nicene corpus. Wagschal's discussion of the origin and use of the Byzantine nomokanon, a quintessentially Byzantine canon law collection that combines both secular laws (nomoi) and ecclesiastical canons (kanones) is especially illuminating (pp. 41-50); while the term is widely used by scholars of Byzantine law, this designation did not enjoy widespread currency in the first 500 years of the Byzantine canon law tradition.

There are interesting insights scattered throughout this first chapter. One is the small size of the Byzantine canonical corpus, encompassing only some 770 canons, especially compared with Byzantine secular law or the later canonical output of the Latin Church (pp. 60-62). In one of the few instances in which Wagschal strays into the praxis of Byzantine canon law, he observes that a specialized class of canon lawyers never developed in Byzantium (pp. 80-83). Instead what emerges is the phenomenon of "borrowed professionalization", whereby certain ecclesiastical officials with expertise in civil law were tasked with compiling and interpreting Byzantine canon law. This state of affairs speaks to the broader problem of trying to separate canon and civil law in Byzantium, a complex and as yet insufficiently explored phenomenon.3

Chapter Two examines the language of proems of Byzantine canon law collections and their importance for understanding how the Byzantines thought about the law. Of particular concern is the rhetorical window-dressing adorning the introductory prologues to these collections (pp. 130-133). Wagschal ultimately suggests that "…the real legal content in this system is conveyed through the rhetorical interweavings of the canons into substantive narratives of tradition, justice and truth" (p. 137). In this chapter more than others the question of historical context presents major problems for treating these prologues as a unitary whole. Can one plausibly compare prologues composed at the time of Justinian with those written as late as the end of the eleventh century? The political context in particular plays an enormous role in how these prologues are written, as impressively demonstrated by M.T.G. Humphreys for the logos prosphonetikos prefacing the canons for the Council in Trullo.4

The structure of the canons is the focus of Chapter Three, and here Wagschal has many incisive and interesting observations about the origin of the term kanon itself, and why other terms, such as the horoi found in early canon law collections, are not used later (pp. 138-151). Less convincing is the significance he ascribes to consistent use of the plural term kanones, which he takes to signify the absence of a canon law as an abstract in Byzantine legal thought: "There is no 'canon law' in Byzantium" (p. 152). However, Byzantine literature consisted of logoi, and one likewise finds the use of the plural in the widespread designations hoi politikoi nomoi ("the civil laws") and especially to platos ton nomon ("the breadth of the laws") in reference to Byzantine secular law. This means that one must be careful not to read too much into the use of the plural "canons" for Byzantine canon law.

The final chapter examines the structure of Byzantine canon law collections. It emerges that the arrangement and presentation of Byzantine canons is extremely conservative. An extensive discussion of canon rubrics (pp. 236-256), for instance, shows that their form was quite practical and merely restated the contents of the canons. In short, "[b]roadly continuous with patterns of ancient legal ordering, the hallmarks of Byzantine systemization are chiefly conservatism and minimalism" (p. 271). A concise conclusion and two appendices, the first a guide to canon law prologues and the second a translation of three canon law prologues, conclude the monograph.

Overall, Wagschal's Law and legality is an impressive synthesis of various schools of scholarship and a thoughtful analysis of the Byzantine canonical corpus. It deserves to become a standard entrée for anyone interested in Byzantine law and the canon law of Eastern Christianity more generally. Although one can only ask so much of one monograph, many avenues of this formative phase of Byzantine canon law remain woefully under-researched. Wagschal ends his examination in 883; that is the year that the first extant document from the Athonite archives, a sigillion of Basil I, was issued. It is in fact the examination of Athonite monastic legal acts that might flesh out and nuance how the Byzantines thought about their canons. Monastic foundation charters or ktetorika typika, which also slightly postdate the terminus of Wagschal's monograph, also reveal a great deal about what Byzantine founders thought to be canon law.5 More individual studies of Byzantine canonists are also urgently needed to extend the discussion on the Byzantine conception of canon law: Theodoros Giankou's study of the life and canonical oeuvre of the Antiochene canonist Nikon of the Black Mountain (d. ca. 1100) comes to mind,6 yet one could apply the same level analysis to figures within the chronological limits of Wagschal's monograph, such as Photios (who is given much greater credit for his authoring of the Eisagogethan his revision of the Nomokanon in 14 Titles). Future studies of this sort will certainly make use of Wagschal's monograph. ​



Notes:


1.   As Wagschal's study demonstrates and he himself points out often over the course of the book, there are numerous points of this early phase of Byzantine canon law deserving of further study. An excellent starting point for an up-to-date and thorough overview of the development of the canon law tradition are the individual chapters of Wilfried Hartmann and Kenneth Pennington (eds.), The History of Byzantine and Eastern Canon Law to 1500. Washington, D.C.: Catholic University of America Press, 2012.
2.   Dieter Simon, Rechtsfindung am byzantinischen Reichsgericht. Frankfurt 1973.
3.   Also in this chapter appears one of the book's few problematic points, as Wagschal insists on using the designation the Collection in 14 Titles for the Nomokanon in 14 Titles, even though the former is properly viewed as the latter's precursor and the latter designation is universal in the scholarship on Byzantine canon law (thus his confusion at the correct designation at p. 48, n. 121). Though of course the canons of the Collection in 14 Titles became the basis for the Nomokanon in 14 Titles, this will unnecessarily confuse general readers.
4.   M. T. G Humphreys, Law, Power, and Imperial Ideology in the Iconoclast Era, c.680-850. Oxford Studies in Byzantium. Oxford; New York: Oxford University Press, 2015, 46-57. 2015 seems to have been an auspicious year for the field, which augurs well for a new wave of Anglophonic interest in Byzantine law and legal culture.
5.   Bernard Stolte, "Law for Founders," in: Margaret Mullett (ed.), Founders and Refounders of Byzantine Monasteries. Belfast Byzantine Texts and Translations, 6,3. Belfast: Belfast Byzantine Enterprises, Institute of Byzantine Studies, Queen's University of Belfast, 2007, 121-139.
6.   Theodoros X. Giankou, Nikon ho Mauroreites. Bios – Syngraphiko Ergo – Kanonike Didaskalia. (Aristoteleio Panepistemio Thessalonikes Epistemonike Epeterida Theologikes Scholes, Tmema Poimantikes 2) Thessaloniki 1991.

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