a civil area traditionally under the authority of Roman law; but only the latter retained the constitutive power to render marriage valid as a legal relationship (not to mention other civil contracts and transactions). To take another example from Basil’s canons, the Church Father could stipulate that the church would not recognize as marriage the union of a man and his third wife, but Roman law would still accord the relationship validity.34 Basil could exclude fornicators at the church’s door, but visiting prostitutes remained lawful in the eyes of the imperium.35 To promote properly Christian sexuality, late antique ecclesiastical law sought to modify behavior within an ancient institution that continued to be governed by and partly understood in terms of civil traditions.
The degree to which ancient attitudes toward marriage and the family persisted into the Christian empire is most evident in local legal practices as represented in documentary evidence—marriage agreements, divorce settlements, and related documents preserved in a number of Rome’s eastern provinces, especially Egypt. Marriage in ancient civil law traditions was always in some sense a contractual arrangement, in that it was a legal relationship created by an agreement between parties (usually the spouses and their families), but the law did not require the contract to be written in order for it to be valid.36 Those inhabitants of the eastern Roman world who did record their marriages and related transactions in documents, however, have left us evidence of strong continuities in the legal practices attendant to marriage and the formation of households throughout the era of Christianization; they demonstrate the conservatism of the Roman institution of marriage, which in practical terms changed slowly in response to Christian perspectives and even to new civil legislation.37 Divorce is perhaps the most emblematic civil practice of which orthodox Christianity disapproved but which clearly endures in the documentary record. Though they are not ubiquitous, a sizable number of deeds of divorce in Greek and Coptic, with provisions for the remarriage of the divorced spouses, are extant from Egypt from the sixth century into the eighth.38 So, for example, a no-fault divorce deed of 569 from Upper Egypt between one Mathias and his wife, Kyra, blames their separation on “an evil demon.”39 A sixth-century Greek document from the Palestinian village of Nessana records a divorce in which one Stephan retains the dowry of his former wife, who had either separated from him without cause or committed some transgression and thus forfeited her property to him.40 In a case that would have horrified any well-schooled bishop, an Egyptian fisherman named Shenetom divorced his wife, married another woman, and married his daughter to his new wife’s son—all on a single scrap of papyrus.41 Two other documents from Nessana evoke from a different angle the centrality of Roman civil tradition to marriage in the Christian empire. Both are marriage agreements, one dated 537 and the other 558, in which the groom acknowledges receipt of a dowry from the bride’s family “according to Roman custom.”42 Nessana was “an outlying village” on the edge of the desert in the province of Palaestina Tertia.43 Like elsewhere in the Roman world, Nessana’s Christian institutions, including churches, a monastery, and their officials, were central to local life.44 In a provincial setting like this in the heavily Christian later empire, the fact that these marriage contracts explicitly invoke the Roman example (whatever the actual content of their law) underscores how the legal-practical aspects of marriage and social reproduction remained intimately connected to notions of Roman citizenship, imperium, and law.
It is important to note that even though civil law retained constitutive authority over marriage as a legal relationship, ecclesiastics played important roles in its administration. It would take several centuries for the Latin and Greek churches to develop a systematic theology of marriage as a sacrament, but by the fifth century it was standard in the eastern empire for clerics to bless first marriages.45 Furthermore, many of the scribes and judicial figures who administered civil law, including that of marriage, were themselves Christian clerics. Constantine had granted official recognition to ecclesiastical courts in 318, and a career in the church was a path to status in the later empire.46 As such, the local notables who traditionally drew up deeds and contracts or witnessed documents might frequently hold clerical positions. To take one of numerous examples from the Egyptian papyri, a marriage contract of 610 from Panopolis (modern Akhmim) was witnessed by two priests, Moses and Yohannes.47 But while they certainly played judicial roles in administering marriage law, we should not assume that all Christian clerics were invested in enforcing the high tradition’s teachings on marriage and sexuality to the letter. In handling legal affairs they were carrying on a civil tradition that had always been a duty of prominent local men and officials; in the later empire Christianization had simply brought clerics to overlap with those categories. Indeed, the involvement of Christian figures in marriages did not necessarily imply the eschewal of practices lawful in civil terms but unchaste in ecclesiastical ones. Another Greek Nessana document, from the period of Umayyad rule but rooted in pre-Islamic Roman and local practices, is instructive here. The document, written in 689, records a divorce effected when Nonna, the wife, gives up her dowry and other marital property to John, her husband and a priest.48 Three of the seven witnesses are clerics associated with the local monastery of Saints Sergius and Bacchus, and the scribe is the priest and future abbot Sergius son of George. Though it may appear incongruous to encounter so many clerics affixing their signatures to a document attesting to a marriage’s dissolution (not to mention the crosses and invocations of God’s grace with which they embellished it), it is not necessarily so. These individuals were churchmen, but they were also custodians of the enduring civil traditions, rooted in Nessana’s recent Roman past, that governed the formation, maintenance, and dissolution of marriage.49 Christian tradition taught a radically new sexual morality, the Church Fathers and other ecclesiastics promoted it among their flocks, and some Roman emperors took it seriously when they promulgated new laws; but these developments never completely reformulated the Roman institution of marriage in the terms of Christian morality. Old and durable civil frameworks for contracting marital bonds and reproducing household life remained central to the understanding and practice of marriage in the later Roman world. The effort to create Christian marriage largely meant preaching Christian morals as chaste modifications to an ancient civil institution.
The Sasanian Empire
If imperial traditions defined the legal framework of marriage in the Roman Empire, how did the East Syrian Christian subjects of the Sasanian Empire relate to and interact with the judicial structures of a Zoroastrian polity? Which legal traditions had constitutive authority to render marriages legitimate? What role did ecclesiastical law play in the lives of East Syrians? These questions are more difficult to investigate than those concerning the Roman world due to a nearly complete lack of documentary evidence from Sasanian Mesopotamia and Iran and the fragmentary character of the extant Sasanian legal sources. Nonetheless, we can essay an educated outline. The available evidence indicates that Sasanian Christians, much like their coreligionists in the Roman Empire, followed a mix of imperial and local civil traditions to contract marriages. They did so under the purview, to varying degrees, of the Sasanian judicial apparatus. The Church of the East’s ecclesiastical law also did not differ greatly in its goals from canon law to the west: it encouraged suitably Christian forms of marriage, and ventured beyond the typical territory of Roman ecclesiastical law only in response to distinctively Iranian practices like close-kin marriage. Christian law did not have constitutive power over the formation of marriages; Sasanian Christians moved within a legal sphere defined by the empire’s official traditions.
The judicial institutions of the Sasanian Empire included a hierarchical array of courts staffed by a range of officials, many of whom were Zoroastrian religious professionals.50 The empire’s avowed Zoroastrianism, however, did not preclude the access to its courts of subjects of other religions; Christians, Jews, and other non-Zoroastrians were ineligible only for specific services closely connected to Zoroastrian ritual and doctrine.51 If Sasanian courts were open to Christians, however, did they actually make use of them? If nothing else, the question is worth asking because of the close connection between Zoroastrian doctrine and Sasanian judicial practice, and because we know East Syrian ecclesiastics to have maintained some form of their own communal judicial institutions, as did rabbinic Jews.52 Several factors, however, militate against the possibility that these resources constituted a completely autonomous system of law that obviated any need for