Emperor leo iii the isau.., p.30
Emperor Leo III the Isaurian, page 30
As will be seen with virtually all the legal texts connected to the Isaurian dynasty, there is trouble with the dating of the Ekloga. Its title section declares that it was issued by Leo III and Constantine V in March of the 9th indiction in Anno Mundi 6248. This may seem like a clear-cut date, but it is not without issues. Due to its length, the reign of Leo III encompassed two ‘9th indictions’; one in 726 and another in 741. There has been some argument that 726 is meant due to the lack of mention of iconoclasm in the Ekloga; however, this could instead be evidence of a lack of iconoclastic action under Leo. It should also be stated that equating AM6248 to 740/741 is not entirely certain due to different dating system versions of Anno Mundi; for example, that of Theophanes equates AM6248 to the year 755/756. However, the most prominent dating for the promulgation of the Ekloga is March 741, very late in the reign of Leo III.4
The name ‘Ekloga’ means ‘selection’ ‘and that is broadly what it is’5 – a concise, utilitarian, selection of Roman law, specifically from the Justinianic corpus. That is not to say that the Ekloga was entirely derivative. There was significant editorial input, some deviation from Justinianic law, and significant simplifications and omissions – just one part of the Corpus Juris Civilis, the Digesta, contained 150,000 lines of Latin, while the Ekloga as a whole was made up of under 1,000 lines of Greek. There were also new Isaurian laws within the Ekloga.6 Ultimately, the work done to compile the Isaurian law code ‘probably ranges considerably from significant reworking to almost verbatim copying.’7 But who carried out that work? While we have no names of those charged with the editorial job, the commission was made up of ‘our most glorious patricians, the most glorious quaestor, and the most glorious consuls and antigrapheis.’8 By this point, the quaestor was ‘the pre-eminent legal officer in the empire, an amalgam of imperial spokesman, and spin doctor, high court judge, and legal draftsman.’9 The antigrapheis were the quaestor’s deputies, who served as the head of the secretarial bureau, preparing legislation, court cases and answering legal questions.
But what did this commission come up with? The resulting ‘selection’ contained 18 titles, focused mainly on civil and some criminal law, tackling subjects ranging from marriage, betrothal, dowries, testaments, intestacies, wardship, enfranchising of slaves, witnesses, sale liabilities, purchases, rent etc. In the simplest terms, the Ekloga aimed to resolve practical problems, a vital concern in an empire which had faced so many issues undermining the rule of law. This meant that for the most part the Ekloga was a restatement of Roman private law. The only sizeable section of new legislation came in the realm of marriage and sexual morality. There were to be very limited grounds for divorce and significant punishments for acts of sexual immorality, much of which reflected the religiously-based ethics of the Isaurian additions.
These ethics are also seen in how the Ekloga and Isaurian legal texts in general contain a significant amount on crime and punishment. The section on criminal law – XVII – is the longest in the Ekloga and incorporates penalties for various crimes such as treason, murder, and theft. While based on Roman law, there was some innovation within this section, which also harkened back to the ancient past. This was seen most prominently in the rise of corporal punishment, with mutilation used over execution, exile, and fines.
Mutilation as a legal punishment had a long history before its appearance in the Ekloga. It was extensively prescribed in the law code of the Babylonian king Hammurabi in c.1754 bc.10 Rhinokopia, the removal of the nose, was a punishment for abuse of power, adultery, and conspiracy in thirteenth- and twelfth-century bc Egypt, while ancient India had developed advanced nasal reconstructive surgery, suggesting nose removal was a frequent occurrence. Various forms of amputation are also seen as punishments in early Peruvian cultures.11 While not unheard of, punitive mutilation was not prominent in the Roman world before Late Antiquity.12 While there is no definitive correlation, maiming as a punishment coincided with the Christianisation of the empire, perhaps using the Biblical justification provided by Matthew 5:29–30 – ‘Cut your hand or your foot if it scandalizes you,’ and ‘better being lame or crippled rather than able-bodied and damned.’
Somewhat counterintuitively, such punitive mutilation was a downgrade in severity of punishment as it was ‘a merciful substitute for the death penalty.’13 There had been a general lessening of the severity of legal punishments since the reign of Justinian I,14 continuing through the seventh century until it became codified by the Ekloga and other Isaurian legal texts. The Ekloga deals mostly with crimes against the state, such as counterfeiting and forgery, which were punishable by losing a hand; however, it also stipulates rhinokopia as punishment for adultery.15 In connection with such punishments, the Ekloga claimed that criminals of all backgrounds, rich or poor, would be treated the same, but this was not the case in practice. The doling out of punishment, including mutilation, depended very much on the wealth of the accused, with a rich person allowed to pay a fine for their crime, while a poor person was forced to pay with a part of their body.
This turn towards mutilation as a punishment in criminal law was perhaps a reflection of how it had already become a prominent practice within imperial politics. Such physical mutilation had been used to remove an individual from the Roman imperial succession for perhaps over 300 years,16 and this only increased with the Christianising of the imperial position. Being a divinely-cast ruler required the emperor to be physically ‘perfect’. This was not a new concept – his family had sought to hide Claudius away from public view due to his physical maladies, although that did not stop him being elevated to the imperial title and ruling for thirteen years.17 It was under the Heraclian dynasty that such political mutilation became more widely used. Even if the mutilation of John Athalarichos, illegitimate son of Heraclius, in 637 on a charge of conspiracy was meant more as a punitive punishment rather than a political removal, it opened the door to clearer instances of mutilation as a political tool. Within four years, three of Heraclius’ sons by his second wife (and niece) Martina – Heraklonas, David Tiberios and Marinus – had their noses mutilated as part of their removal from positions of power. Martina herself had her nose and tongue cut out for her perceived interference in imperial politics.18
This opened something of a political disfigurement floodgate – Constantine IV had his two brothers mutilated, Leontios had Justinian II mutilated, who in turn had Tiberius III mutilated (and executed) upon his return to power, which, of course, demonstrates that such mutilation did not always prevent someone from being emperor. This is also not to say that mutilation was always carried out against those removed from power – while Philippikos Bardanes was blinded upon his deposition, neither Anastasius II nor Theodosius III faced any physical deprivation upon their initial removal from office. Indeed, at a time when mutilation was becoming an everyday punishment under the Isaurian dynasty, the removal of bodily appendages was becoming less prevalent in politics. Its failure to remove Justinian II from imperial contention may have led to the preference moving on to blinding. Indeed, throughout the eighth century, dozens of emperors, imperial candidates, patriarchs, generals, and plotters were blinded.19 It would continue as the dynastic preventative throughout the remainder of Roman imperial history.
The Roman Empire was not the only state of the period to embrace punitive mutilation. The Frankish kingdom of the sixth century saw hand, nose, and ear removal as a punishment, while perhaps the most well-known use of mutilation as a punishment is in Islamic law. It called for amputation as a punishment for crimes said to violate Allah’s hudud – ‘boundaries’ – in the Qur’an, namely what we might consider ‘highway robbery’ and types of theft. It must be said that Muslim jurisprudence had such a high evidentiary standard that any such punitive mutilation was exceeding rare.20
The Ekloga commission also recognised the need to reform the judiciary that was to enforce these selected laws. In making law more accessible to all and stamp out corruption, legal officers were salaried and forbidden from accepting gifts, another reform that appealed to the Bible by hoping to avoid ‘the selling of righteous for silver’.21 This demonstrates recognition that Roman law was not universally understood by those Romans covered by it and that it did not necessarily work for them either, particularly outside Constantinople. This may even be an example of the ‘metropolitan elite’ recognising it lived in a bubble detached from the general life of the state they governed, legislated for and ultimately depended on for revenue and manpower. The Ekloga replaced the Justinianic Institutes as the manual for teaching law until the mid-ninth century, and even when the Ekloga was supplanted, its chapters were reused and its text revised. This demonstrates its significance not just in its 150 years of direct use ‘to meet the demands of the living realities of the period,’22 but also how it influenced the judicial collections of the Orthodox Church, ancient Slavic law and the Arabs.
Given the significance and influence of the Ekloga, it could be tempting to see Leo III as a great legislator; however, this is not strictly the case. The Ekloga was largely a restating of pre-existing Roman law and even the new sections on marriage, morality, and mutilation were all influenced by long-standing Biblical teachings and/or trends in the Mediterranean world. That said, Leo clearly understood the importance of an established, comprehensible, and fairly-enforced law code to the future of the Roman Empire and his dynasty.
Religion, Imperial Propaganda and Isaurian Law
The influence of the Ekloga was not only in the realm of dynastic security and legislative reform; it also presents a significant reshaping of the imperial law, order, and justice with the Old Testament. It was presented as a restoration of the covenant between God and his chosen people, except in this case the chosen people were Christian Romans, with Leo and Constantine the successors of Moses and Solomon. Part of the perceived necessity of this realisation of a Christian kingdom based on Old Testament rhetoric and model was how ‘Islam forced Christians to examine, defend, or alter their religious practice and private morality in response to the evident displeasure of heaven.’23
The traditional imperial response would have been to play into the idea of universal Roman Christian power; however, that was no longer a safe bet. The 75 years after the Islamic explosion proved that the loss of the eastern provinces was not ephemeral, while the 20 years of political instability following the first deposition of Justinian II in 695 suggested that the empire’s power was not only not universal, but dangerously close to disappearing altogether. Indeed, when Leo III usurped the throne in 717, it was perhaps expected that the empire would not survive the year. Under Isaurian leadership, the threat of annihilation abated but ‘the imperial dream was jettisoned’,24 born out of Leo III’s and Constantine V’s realistic appraisal of the political and military situation, ‘adopting policies suited to their reduced powers and relinquishing utopian ideals of world domination.’25 To even think about going on the offensive and reclaiming lost lands, the empire needed to be reforged into something different, doing away with systems broken by conquests and migrations and codifying and building upon the improvised systems that had proven useful in staving off total defeat.
Because of this, imperial rhetoric changed from the ‘universal empire of Christian New Rome’, encapsulated in civil and canon law, to a greater rhetorical and legal reliance on the Old Testament, which provided an analogue of God’s chosen being surrounded by earthly powers intent on their destruction. With the Isaurians, this redirection also involved the identifying and rectifying of the reasons for their troubles, such as improper religious observance and private immorality in the form of sexual misconduct. This redirection was codified in the Ekloga and other Isaurian legal texts, which were also looking to organise the resources of the truncated imperial state.
Such was the extent of this redirection that the Ekloga embraced how the Quinisext canons presented the Roman Empire as Christian rather than Roman. Indeed, the term ‘Roman’ is frequently absent from the Ekloga, with ‘Christian’ used instead: it was a law code for and about Christians, with no reference to Jews or pagans and only the briefest mention of heretics. It represented the final embracing of the religiosity of the imperial position, presented with the claim of divine appointment and the authority of a bishop;26 ‘a sacralisation of the Roman politeia (state) itself.’27
The religious influence can be seen beyond such pronouncements of Christian influence, morality, and being ‘chosen’. Specific laws in the Ekloga were very much Christian in origin. There were some rulings on personal morality, marriage, sexual conduct and correct religious practice.28 The prominence of crime and punishment in Isaurian legal texts was part of ‘an eschatological plan to heal the souls of the sinful sick, in order to restore health to the empire.’29 And while Christian clemency was encouraged, even the idea that ‘deemed judicial mutilation a merciful substitute for the death penalty’30 relied on Biblical backing from Matthew 5:30.
the law was conceived as a heaven-sent implement of correction, which would advance Christian morality by protecting the weak, deterring those with any propensity to evil and punishing the wicked, both for the sake of stern justice in upholding God’s commandments, and for the purgation of sin.31
This harkening back to Biblical teachings in Isaurian legal reforms may also have influenced the development of iconoclastic policies. A core component of Leo’s iconoclasm, if it existed at all, was the Biblical opposition to idolatry.32 This did not mean a removal of all icons, but a promotion of imperially approved imagery,33 specifically the cross and the eucharist, which were foundational aspects of the Christian church. And yet, iconoclasm was initially not introduced with assent from church authorities, with the emperor claiming that his imperial position gave him the right to legislate in both civil and religious matters. In this light, together with the concurrent creation of the Donation of Constantine, iconoclasm could be seen as the latest round in the long struggle over the limits of imperial and church jurisdiction. And such harkening back to the past were part of Leo’s attempt to win that struggle, repositioning the emperor as ‘the sole and undisputed leader of society, with the Church subordinate to his authority and regulatory care.’34 Such a position was reflected in the Ekloga and given some credence by the emperor’s power to appoint and depose patriarchs. An aspect of iconoclasm in line with imperial authority may also have been to gain some control over monks, many of whom had flourished under the stable conditions of Isaurian rule. However, as with iconoclasm in general, care must be taken with their reputed monastic policies for they are open to distortion. The policy, if it can even be attributed to Leo III, looked to place monks and monasteries under the control of bishops and restrict them to charity, piety, and exemplary living, rather than claiming any authority through connection to images.35
Roman law was no longer completely sufficient, but still able to form the basis for three major divergent states. The ‘renaissances’ under the Carolingians and Abbasids are well-documented; however, the ‘Byzantine’ revival was usually placed a century later under the Macedonian dynasty ‘due to the distorting miasma of iconophile rhetoric.’36 Contrarily, the historical and hagiographic sources of the late-eighth century, which did so much to denigrate the iconoclastic Isaurians, are actually proof of the ‘renaissance’ nurtured under said Isaurians but dismissed by iconophiles. In the west, the Latin miniscule invented in the second half of the eighth century is usually taken as a symbol of the need for a more accessible script as interest in reading and writing spread as part of the ‘Carolingian Renaissance’; however, it is overlooked that there was a concurrent development of the Greek miniscule, surely for similar reasons – increasing administration bureaucracy showing re-centralisation, legal texts for judges etc., all of which are hallmarks of strong central government.
The Isaurian Legal Corpus
The Ekloga is not the only legal text attributed to the Isaurian era and possibly to be linked to Leo himself. There is the Decision Concerning Soldiers who are Son-in-laws. It has issues with dating and its imperial attribution, but there are hints that it was to be directly attached to the Ekloga itself. Its mention of there being more than one emperor at the time of its promulgation narrows its date to the period between the publication of the Ekloga and the death of Leo III in June 741 and after the elevation of Leo IV to co-emperor in 751. It could even be that this ‘decision’ was meant to be part of a 19th title of the Ekloga or was a case raised following the publication of the Ekloga but before the death of Leo. Its content highlights how the Roman thematic army was supported by households in return for certain privileges, such as tax breaks, claims to soldierly property and income. This was an important contribution to the empire’s ability to field an army of any size to defend against the Arabs. In general terms, this ‘decision’ may show how the Ekloga was not meant to be a rigid edifice from the very outset.
