The Inverted Relationship: Constitutive Theory of Law and the Enforcement of Orthodoxy in Book XVI of the Theodosian Code

Abstract

This paper focuses on the question if, and if so how, the Theodosian Code, the first legal codification of the Roman Empire and its book devoted to religion, Book XVI, facilitated the formation and enforcement of the concept of orthodoxy and its boundaries. It uses the propositions of the Cognitive Science of Religion to advance a new understanding of the shift towards orthodoxy, as the process in which legitimate representations were reified in formal processes, and it applies findings from cultural and social studies to establish two ways in which law could exercise constitutive influence and operate as one of such processes: by establishing categories based on socially salient marks, and by instilling specific narratives. The analysis of the Code’s context gives affirmative answer to the question ‘if’. Christianity emerged as a hybrid creation, and the orthodoxy was an effect of the process of discernment, which was furthered by the progressing Christianisation of the Roman Empire, developments in Roman Law, and the use of coercion, turning law and religion into a cooperative enterprise. This was advanced by the Code’s insistence on two “orthodoxies”, legal and religious, which was achieved through unification, universalisation and clarification of the existing laws, as well as categorisation and ordering of different social spheres. The close analysis of Book XVI showed continuation of these developments and aims. The Code enforced orthodoxy both directly, by being a formal reifying process itself, and indirectly, by facilitating other processes of that kind. The orthodoxy was construed through doctrine, extra-doctrinal pronouncements that enforced narratives such as the apostolic continuity, precedence of the right belief before heresy or Roman primacy, and introduction of a coherent, empire-wide religious policy that stratified society according to religious affiliation. Differentiation between Catholic Christians, heretics, pagans, Jews and apostates helped in the process of self-identification and discernment of orthodoxy, while the flattening of non-orthodox on subsequent levels provided means for their rhetorical and legal rejection. The paper ends by proposing further research directions, such as comparison with the Justinian Code, or application of the theory presented here to other historical and contemporary developments.