This book approaches the subject of late Roman law from the perspective of legal practice revealed in courtroom processes, as well as more ‘informal’ types of dispute settlement. From at least the early 4th century, leading bishops, ecclesiastics, and Christian polemicists participated in a vibrant culture of forensic argument with far-reaching effects on theological debate, the development of ecclesiastical authority, and the elaboration of early ‘Canon law’. One of the most innovative aspects of late Roman law was the creation and application of new legal categories used in the prosecution of ‘heretics’. Leading Christian polemicists not only used techniques of argument learnt in the late Roman rhetorical schools to help position the Church within the structure of Empire, they also used those techniques in cases involving accusations against ‘heretics’ — thus defining and developing the concept of Christian orthodoxy itself.
This article seeks to reevaluate existing scholarship on the late Roman "bishop's hearing" or "bishop's court" via a reexamination of the nature of the extant legal evidence. Paying particular attention to the original contexts in which the relevant fourth- and early fifth-century imperial constitutions were issued, it argues that, prior to the publication of the Theodosian Code in 438, these constitutions should be understood as specific responses to circumstances thrown up by courtroom practice. Having reassessed the nature of the legal evidence both before and after the promulgation of the Theodosian Code , the article attempts to re-contextualize the episcopalis audientia within a broader late Roman socio-legal landscape, hence challenging the traditional framing of the debate on the episcopalis audientia as a question of "church" and "state."
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