Law and Legality in the Greek East: The Byzantine Canonical Tradition, 381–883 by David Wagschal (review)

This is an important book, which makes the Byzantine canonical tradition more interesting to Byzantinists and more respectable to legal historians, while contextualizing its uniqueness for those who still live it in the Orthodox churches. Law and legality do not excite most people who are drawn to study Byzantium for its material culture, its intellectual legacy, and its imperial politics, while Byzantine legal literature is difficult to mine for evidence of Byzantine norms. Legal historians, with the partial exception of the “Frankfurt School,” have treated the Byzantine legal tradition as a degenerate residue of Roman Law, with a canonical component that is beneath consideration. This is in contrast to the medieval West, where canon lawyers were at the cutting edge of jurisprudence, and indeed of systematic thought, in the “twelfth-century Renaissance.” Interpreters of Byzantine canon law within the Orthodox tradition have either tried to fit it into a formalist, jurisprudential straitjacket, or they have made a theological virtue out of its lack of legal formalism, seeing the canons as only the superficial aspect of a divine, spiritual jurisdiction that transcends mere rules and regulations.

The four chapters of David Wagschal’s closely argued and meticulously crafted book present the “divine and sacred canons” as a Weberian “substantive law.” They show that the Byzantine canonical corpus, an accretion of conciliar canons from the fourth to the ninth centuries augmented with pseudo-apostolic, patristic and imperial material, was a normative and authoritative body of legislation; however, it cannot be studied according to the same criteria as other legislative systems in the Roman or post-Roman world. It was coherent, stable, self-contained, and internally consistent, but its cohesion lay in its biblical frame of reference and its adherence to tradition, rather than in a systematic application of forensic method, technical language, and comprehensive thematic treatment. It was programmatic, but its program was embedded in the texts of the canons themselves rather than being imposed by a strategy of legislation. It shows many recognisable features of a legalistic mentality, but these do not add up to a legal system. There is a massive, authoritative canonical edifice, but there is no canon law. The dominant discourse is normative, but juridical argument is only a part of it; apart from the appeal to tradition and the Bible, the canons are marked by a pedagogical manner and a tendency to emotive persuasion. In Wagschal’s words, “it remains difficult not to read Byzantine canon law as a very real counterpoint to the formalist instincts of mainstream civil-legal culture as it has developed in Europe since the high middle ages . . . . Very broadly, the one is ‘mechanical,’ almost technological, in operation and orientation, while the other is much more literary” (281).

The significance of Wagschal’s conclusion is that it exhaustively confirms, for the Byzantine canonical tradition, Dieter Simon’s reading, over forty years ago, of a civil judgment by the eleventh-century judge Eustathios Romaios. As the judge’s anonymous admirer recorded, Eustathios “also cited laws” in reaching a verdict that he justified mainly by rhetorical argument seasoned with philosophical concepts and literary allusions. The law, Simon concluded, was just one of the intellectual tools in the Byzantine application of justice. Wagschal’s book-length development of this thesis has profound implications not only for Byzantine legal history, but for Byzantine studies in general, because it demonstrates that Byzantine law has to be studied as a function of Byzantine logos, a polysemic word that can be roughly rendered, in this context, as “learning” or “intellectual/literary discourse” or “reasoning eloquence.” This reviewer was particularly struck by the proximity of Wagschal’s discussion of the manuscript tradition of the canons (24–32) to the approach now adopted by scholars examining the transmission of literary, particularly anonymous texts: an approach that respects the autonomy and integrity of each manuscript witness and starts from the principle...