The Patriarch Alexios Stoudites and the Reinterpretation of Justinianic Legislation against Heretics
Greek, Roman, and Byzantine Studies: 54 (2014) 293–312
Using normative legal sources such as law codes and imperial novels to illuminate Byzantine heresy is a very difficult proposition. One of the great problems in the analysis of Byzantine law in general is that the normative legal sources rarely were adapted to subsequent economic, political, or social conditions. When emperors chose to combat contemporary problems via the legal regime, usually they did so via the medium of imperial legislation, and, as other studies have shown, rarely did such legislation influence the normative law codes, such as the Basilika, from the end of the ninth century the standard Hellenized redaction of the Corpus Iuris Civilis. With regard to heresy, the Basilika thus presents us with a static, sixth-century picture of anti-heretical regulations; no mention whatever is made in the Basilika or its scholia of any heresy appearing after the sixth century. The most egregious and noteworthy of these omissions is Islam, despite the fact that Muslims were a substantial as well as commercially and diplomatically important minority, above all in the capital city Constantinople. As Stephan Reinert notes, “[c]onceptually, it seems that the late antique trisection of the non-Orthodox into pagans, heretics, and Jews formally persisted, but that the leaders of Byzantine society never elected to define, legally and officially, the category to which any ‘Ishmaelites within’ belonged.” In fact, as this article will demonstrate, in the eyes of the Byzantine jurist not all heretics were created equal; they suffered from different degrees of legal incapacity under Byzantine law.
If, as in Byzantium, the formal legal regime is unchanging, then the interpretation and implementation of normative laws assumes paramount importance. In this article I explore a rare instance where the changing interpretation of a law found in both the Corpus Iuris Civilis and the Basilika can be documented diachronically. It will be suggested that a number of the edicts of the Patriarch Alexios Stoudites (1025–1043), which were issued to combat illegal practices of the Syrian Orthodox populace in Melitene, affected the interpretation of passages dealing with heretics in the Basilika. In particular, a provision of Justinianic law which seemingly forbade Jews from testifying in court (Basil. 21.1.45 = Cod.Iust. 1.5.21) was reinterpreted as referring instead to “Nestorians,” or adherents of the Church of the East. By comparing provisions for Jews testifying in court in roughly contemporaneous sources, it can be demonstrated that a reinterpretation probably occurred around the year 1039.