JUSTINIAN THE GREAT

Written by Vladimir Moss

    “In Byzantium,” writes Ivan Ilyin, “the monarchy was considered, theoretically and practically, elective. The right to the throne was possessed by every free person. The presupposition was that the king was elected by the senate and the people; but the senate had been turned into an empty sound, while the people was not organized. There could not be any law of succession to the throne. A plotter who succeeded in ensuring the cooperation of the army and getting possession of the palace was recognized by the officials, and the rebel turned out to be king. Thus Justinian the Great (527-565) was elected as the Byzantine emperor by the leaders of the king’s bodyguards.”[1]

     When Justinian ascended the throne, he set about trying to reunite the Christian world. For his great dream, as Protopresbyter James Thornton writes, “was to restore the Empire’s lost Western provinces. Previous rulers had sacrificed these territories, when they became threatened by the onslaughts of barbarian tribes, for the sake of the defense of the far more important and far wealthier East. But Saint Justinian’s thoughts hearkened back to the time of Saint Constantine I and Theodosius I, when the Empire stretched from the British Isles to the Euphrates… That Roman lands should have fallen into the hands of heretics and barbarians was, to the Saint’s mind, an affront to God’s will. It is also true, as the historian Charles Diehl (1859-1944) writes, that in principle Byzantine Emperors never admitted to any loss of territory. It is true that lands were lost to various barbarian incursions; but, to the Byzantine way of thinking, these lands were simply being temporarily administered by another local ruler on behalf of the Emperor. It was Constantinople’s right to reassert outright control when it served the sovereign’s pleasure.”[2]

     Now large parts of the Christian world had seceded from the Empire for religious as well as political or military reasons. Thus Old Rome was in schism from Constantinople because of the Monophysitism of the Emperor Anastasius; while most of the Semitic and Coptic parts of the Eastern Empire had fallen into Monophysitism or Nestorianism. And so Justinian pursued his aim in two ways: in the West, through war and a mixture of concessions and pressure on the papacy, and in the East, by intensive theological negotiations with the heretics (led by himself), including Church Councils (he convened the Fifth Ecumenical Council in 553).

     In relation to Old Rome he was largely successful: in relation to the Monophysites in the East – less so. This was partly owing to the fact that his wife Theodora secretly supported the Monophysites. Thus when the great ascetic and wonderworker St. Sabbas of Palestine visited Constantinople, the following incident took place: –

     “Justinian requested the elder to bless the Empress Theodora, who, when she saw the godly Sabbas, also bowed low before him, saying: ‘Pray, Father, that I may be granted to bear children!’

     “’May God the Master of all, preserve your empire,’ replied the elder.

     “Said the Empress, ‘Pray to God for me, Father, that He loose the bonds of my barrenness and permit me to conceive a son.’

     “The elder answered, ‘May the God of glory preserve the Empire in the Orthodox faith and grant you victory over adversaries.’

     “The empress then asked the elder a third time to pray that she be loosed from barrenness, only to receive a similar answer. Because of this she was deeply troubled. As the godly one was leaving, the monks who were with him asked, ‘Father, why did you not show the Empress compassion and agree to pray as she asked?’

     “’Believe me, Fathers,’ replied the elder, ‘her womb shall never bear fruit. It is not the will of the Lord that she be permitted to nurse an heir on the teaching of [the Monophysite heretic] Severus, or that such a child should grow up to reign and trouble the Church of Christ even more than did [the heretical Emperor] Anastasius.’”[3]

     Nevertheless, there was a union, albeit fleeting, between the five ancient patriarchates of Rome, Constantinople, Alexandria, Antioch and Jerusalem; and this union in one Church under one right-believing Emperor was a great achievement. And there could be little doubt that the single person most instrumental in achieving this union was the emperor himself: if the five patriarchates represented the five senses of the Body of Christ on earth, then the head in which they all adhered on earth was the emperor. It was through him, therefore, that the ideal of “One Faith, One Church, One Empire” was achieved.

     This unity was not achieved without some pressure, especially on the Roman patriarchate. Thus when the Orthodox Pope Agapetus arrived in Constantinople, Justinian said to him: “I shall either force you to agree with us, or else I shall send you into exile.” Whereupon the Pope replied: “I wished to come to the most Christian of all emperors, Justinian, and I have found now a Diocletian; however, I fear not your threats.”[4] Nevertheless, as Alexander Dvorkin writes: “Even if abuses of power by this or that emperor were accepted by some weak-willed patriarch, sooner or later they were nevertheless rejected by the people of God and the church authorities.”[5]

     It was through the emperor that empire-wide (ecumenical) councils were convened. As Fr. John Meyendorff writes: “without denying the dangers and the abuses of imperial power, which occurred in particular instances, the system as such, which been created by Theodosius I and Justinian, did not deprive the Church of its ability to define dogma through conciliarity. But conciliarity presupposed the existence of a mechanism making consensus possible and effective. Local churches needed to be grouped into provinces and patriarchates, and patriarchates were to act together to reach an agreement valid for all. The empire provided the universal Church with such a mechanism…”[6]

     Thus, as in Constantine’s time, the emperor acted as the focus of unity of quarrelling Christians. The importance of this function was recognized by all – even by the heretics. In consequence, as L.A. Tikhomirov points out, even when an emperor tried to impose heresy on the Church, “this was a struggle that did not besmirch the Church and State power as institutions. In this struggle he acted as a member of the Church, in the name of Church truth, albeit mistakenly understood. This battle was not about the relationship between the Church and the State and did not lead to its interruption, nor to the seeking of any other kind of principles of mutual relationship. As regards the direct conflicts between Church and State power, they arose only for particular reasons, only between given persons, and also did not relate to the principle of the mutual relationship itself.”[7]

     The emperor’s role as focus of unity in the Church was also displayed in the initiatives he took to convert the barbarians and create bishoprics for them. Thus  through Novella 11 (535) Justinian created a new autocephalous Church named Justiniana Prima to conduct missions among the Slavs who had recently invaded the Balkan Peninsula. This new Church subordinated the bishops of Sophia and Riparian Dacia, Preslav, Dardania, and upper Moesia under the new Archbishop in a territory that roughly comprised today’s former Yugoslavia, Albania and Western Bulgaria.

     In Novella 131 (545), however, Justiniana Prima’s territories were put back under the jurisdiction of the Roman Church after the Pope protested that this new autocephaly was an infringement on his rights. Justiniana Prima was closed in the seventh century. Nevertheless, its Metropolitans (of Philippi, Thessalonica

and Larisa) maintained their independence from Constantinople by forming new bishoprics for the Slavic Diaspora.[8]

*

     The other, no less enduring expression of the unity created by Justinian was his codification of Roman law, the Corpus iuris civilis (527-534), consisting of the Digest (or Pandects), the Institutes and the Code, containing imperial constitutions which were supplemented by Justinian’s own, new constitutions, called Novellae. The corpus therefore united the old and new in one coherent body.[9]

      “The dominant political message of the Corpus iuris,” writes Joseph Canning, “is a theocratic one. The emperor derives his power from God: in the constitution Deo auctore, at the beginning of the Digest Justinian describes himself as ‘at God’s command governing our empire, which has been entrusted to us by heavenly majesty’. The divine source of imperial authority is constantly reiterated in the Code and Novels. ‘At divine command we took up the imperial insignia.’ The emperor’s laws are sacred (sacrae or sanctissimae), thus reflecting the Christianising of his pagan role as pontifex maximus. They are, furthermore, of everlasting effect: Justinian decreed that his codification was to be valid ‘forever’ (in omne aevum). It is, therefore, his will alone which constitutes law; ‘what has pleased the princeps has the force of law’ (quod principi placuit legis habet vigorem). He is thus no less than the living law’ (lex animata), an application of the Hellenistic concept of the ruler as nomos empsychos: ‘Let the imperial rank be exempted from all our provisions [in this constitution], because God has subjected the laws themselves to the emperor, by sending him as a living law to men’. He is in short not bound by the law, but ‘freed from the laws’ (legibus solutus). This famous phrase indicates that the emperor is above human law: he is not subjected to the laws which derive from his own universal authority. This formulation laid the foundations for the elaboration of the concept of absolute power in the late Middle Ages.

     “On the other hand there are also in the Corpus iuris statements which indicate the possession of authority by the Roman people. The historical outline of Roman law in D.1.2.2 includes a brief sketch of the republican period, and republican sources of law are treated in D.1.1.17 and Inst. 1.2, 3-5. The most fundamental question, however, concerns the origin of the imperial power itself: reference is made to the so-called lex regia or ‘royal law’, whereby the Roman people transferred its power and authority to the emperor. The meaning of these references to the lex regia has been hotly debated by historians. One school of thought has seen it as an ex post facto legal construction to justify the transition from the republic to the empire. Such a law never in fact existed, but was postulated by later classical jurists to explain the transfer of sovereignty from the Roman people to the first princeps, Augustus, a device, in short, to legitimize the imperial power. The other view identifies the lex regia with the legis de imperio by which the popular assembly gave power to each emperor at the beginning of his reign… The most likely interpretation is that the lex regia was indeed a later and classical juristic construction adopted by Justinian himself as having been genuinely enacted as a law…

     “Whatever the truth about the lex regia, its significance for political thought was that it expressed the idea that that the emperor’s power derived from the people, and thus provided a model for the popular source of governmental power to be elaborated later in the Middle Ages and the early modern period. The lex regia raised a fundamental problem concerning the origins of authority, because its inclusion in the Corpus iuris meant that both divine and popular sources of rulership coexisted. These two sources could be seen as mutually exclusive, and the Corpus iuris itself does nothing to solve the problem. At the time of Justinian the conception of the divine origin of imperial power overwhelmed any idea that the people were in any meaningful sense the source of authority; the only echo of such an ultimately republican idea was to be found in the acclamation of a new emperor by the senate, army and people. Such acclamation either sufficed as a form of election after the death of an emperor or, as was more normal in Byzantine history, or confirmed the already co-opted choice of the previous incumbent. Either way, popular acclamation only served to declare the divine choice of an emperor whose power came from God directly…”[10]

*

     Of special importance among Justinian’s laws was the famous Sixth Novella (535), containing the following formulation of the principle of the symphony of powers: «The greatest gifts given by God to men by His supreme kindness are the priesthood and the empire, of which the first serves the things of God and the second rules the things of men and assumes the burden of care for them. Both proceed from one source and adorn the life of man. Nothing therefore will be so greatly desired by the emperors than the honour of the priests, since they always pray to God about both these very things. For if the first is without reproach and adorned with faithfulness to God, and the other adorns the state entrusted to it rightly and competently, a good symphony will exist, which will offer everything that is useful for the human race. We therefore have the greatest care concerning the true dogmas of God and concerning the honour of the priests…, because through this the greatest good things will be given by God – both those things that we already have will be made firm and those things which we do not have yet we shall acquire. Everything will go well if the principle of the matter is right and pleasing to God. We believe that this will come to pass if the holy canons are observed, which have been handed down to us by the apostles, those inspectors and ministers of God worthy of praise and veneration, and which have been preserved and explained.»

     It should be noted that both the priesthood and the empire are said to “proceed from the same source”, that is, God. This has the very important consequence that the normal and natural relationship between the two powers is one of harmony, not rivalry and division. If some of the early Fathers, in both East and West, tended to emphasize the separation and distinctness of the powers rather than their unity from and under God, this was a natural result of the friction between the Church and the pagan and heretical emperors in the early centuries. However, now that unity in Orthodoxy had been achieved the emphasis had to return to the common source and common end of the two institutions. The unity of the Christian world under the Christian emperor had as its foundation-stone this “symphony” between the emperor and the patriarch, this symphony being grounded in their common origin in God. As the coronation ceremony put it: “You were selected by divine decree for the security and exaltation of the universe; you were joined to the people by God’s will. Almighty God has blessed you and crowned you with His own hand.”[11] The unity of the two powers was emphasized in the Seventh Novella (2, 1), where it was admitted that the goods of the Church, though in principle inalienable, could be the object of transactions with the emperor, “for the difference between the priesthood (ierwsύnh) and the empire (basileia) is small, as it is between the sacred goods and the goods that are common to the community.”[12]

     Secondly, insofar as the symphony of powers existed, not only between two men, but between two institutions, the priesthood and the empire, it went beyond the relationship between emperor and patriarch. As Bishop Dionysius (Alferov) writes: “Symphonicity in Church administration only began at the level of the Emperor and Patriarch, and continued at the level of the bishop and eparch (who also received the blessing of the Church for his service) and was completed at the level of the parish priest and its founder. With such a deep ‘enchurchment’ from all sides of the life of the Orthodox Empire, and the symphonicity of all levels of the Church-State pyramid, the violations of symphony at the highest level were, while annoying, not especially dangerous. The most important thing still remained the service of ‘him who restrains’, which was carried out by the Orthodox Emperor in symphony with the whole Church, and not only personally with the Patriarch. The decisive factor was the personal self-consciousness of the Emperor and the activity based on that. Thus Justinian conceived of himself completely as a Christian sovereign, and strove throughout the whole of his life to make the whole world Christian. His symphony with the Patriarch was desirable as a useful means towards that end, but it was not an end-in-itself. During Justinian’s time five Patriarchates entered into the Empire, including the Roman, and the Emperor did not establish ‘symphonic’ relations with all of them personally (as, for example, with Pope Vigilius, who did not want to accept the decisions of the 5th Ecumenical Council). But symphony with the whole Church did exist, and a proof of this is provided by the 5th Ecumenical Council, which was convened through the efforts of Justinian and accepted the dogmatic definitions against the heresies that he presented; and by the multitude of saints who shone forth during his reign and who related completely ‘symphonically’ to him (for example, St. Sabbas the Sanctified); and by the general flourishing of Christian culture.”[13]

     Thirdly, Justinian had in mind not any kind of harmony, but only a true “symphony” or meeting of minds that comes from God. As I.N. Andrushkevich points out, the word «symphony” [consonantia] here denotes much more than simple agreement or concord. Church and State can agree in an evil way, for evil ends. True symphony is possible only where both the Church “is without reproach and adorned with faithfulness to God” and the State is ruled “rightly and competently” – that is, in accordance with the commandments of God.[14] Where these conditions are not met, what we have, as A.V. Kartashev, the minister of religion under the Russian Provisional Government, pointed out, “is no longer symphony, but cacophony”.[15] Or, preserving the Latin root of the words, we should call it he dissonance of powers…

     Justinian himself, in his preface to the Novella, pointed out that, although he was an Autocrat, he could not exercise dominion over the priesthood; he was obliged to allow the priests to follow their own law, the Gospel and the Holy Canons. Thus did he qualify the absolutist principle of Roman power, namely, that whatever is pleasing to the emperor has the force of law with the words: unless it contradicts the holy canons. Again, in his Novella 131 he decreed: “The Church canons have the same force in the State as the State laws: what is permitted or forbidden by the former is permitted or forbidden by the latter. Therefore crimes against the former cannot be tolerated in the State according to State legislation.”These Canons include those that forbid resort to the secular power in Church matters: Canon 12 of the Fourth Ecumenical Council; Canons 11 and 12 of Antioch; and (later) Canon 3 of the Seventh Ecumenical Council. Nevertheless, it needs to be pointed out that, as we have seen, Justinian did not always observe this restriction on his own power…

     “As regards the judicial branch,” writes Fr. Alexis Nikolin, “coordinated action presupposed not simply mutual complementation of the spheres of administration of the ecclesiastical and secular courts, but, which is especially important, the introduction into the activity of the latter of the moral-educational content inherent in Christianity.

     “In a single service to the work of God both the Church and the State constitute as it were one whole, one organism – ‘unconfused’, but also ‘undivided’. In this lay the fundamental difference between Orthodox ‘symphony’ and Latin ‘papocaesarism’ and Protestant ‘caesaropapism’.”[16]

     Of course, the principle that the Church canons should automatically be considered as State laws was not always carried out in practice, even in Justinian’s reign; and in some spheres, as Nikolin points out, “The Christian Emperor received the ability to reveal the content of the canon in his own way (in the interests of the State). Justinian’s rule provides several confirmations of this. The rules for the election, conduct and inter-relations of bishops, clergy and monks, for the punishment of clergy, and for Church property were subjected to his reglamentation. Bishops received broad powers in State affairs (more exactly, numerous State duties were imputed to them)”.[17] For example, in episcopal elections there was a contradiction between Justinian’s laws, which included the leading laymen of the locality in the electoral body – an enactment that gave an avenue for imperial influence on the elections through these laymen – and the custom of the Church, according to which only bishops took part in the election.[18]

     In practice, the Church’s laws prevailed here, but Justinian’s laws remained in force.[19] The recruitment of bishops to undertake secular duties was contrary to Apostolic Canon 81 insofar as it led to a secularization of the episcopal calling. In general, however, this did not take place, and the enormous benefits of the symphony of powers continued to be felt throughout Byzantine history.

     As Nikolin writes, “Justinian’s rule was a rule in which the mutual relations of Church and State were inbuilt, and which later lasted in Byzantium right up to the days of her fall, and which were borrowed in the 10th century by Rus’. In the first place this related to the principle: ‘Ecclesiastical canons are State laws’. Moreover, the Christian direction of Justinian’s reforms told on the content of the majority of juridical norms. This was most vividly revealed in the resolutions of questions concerning the regulation of individual spheres of Church life. Church communities were now provided with the rights of a juridical person. In property questions they were given various privileges…

     “A particular feature of Justinian’s reforms was that as a result of them State power was transformed into a defender of the faith. This was most clearly revealed in the establishment of restrictions on the juridical rights of citizens of the empire linked with their confession of faith:

–       Pagans and Jews were deprived of the right to occupy posts in state or societal service, and were not able to possess Christian slaves.

–       Apostates, that is, people going over from Christianity to paganism or Judaism were deprived of the right to compose wills and inherit, and likewise were not able to be witnesses at trials;

–       Heretics were not able to occupy posts in state or societal service; they were deprived of the right of inheritance; they could make bequests… only to Orthodox. There were even stricter measures adopted in relation to certain sects.”[20]

      Bishop Dionysius (Alferov) writes: “After the holy Emperor Justinian any Christian monarch must confess, and reverently and unhypocritically believe that ‘Christian piety is the foundation of the strength of the empire’. For greater clarity let us indicate an example. The Emperor Justinian himself, while paying great attention to theology, Divine services and the building of churches, completely neglected the army and the navy, which under him came to a state of decline. But for his unfeigned piety and faith the Lord protected the empire from invasions and subjected to Justinian a part of the barbarians. After him the iconoclast emperors Leo the Isaurian and Constantine Copronymus were outstanding military commanders who reorganized the army and repelled opponents (the Arabs and Bulgars) far from the empire. But the heresy they introduced and their general impiety shook the foundations of Byzantium from within and brought it to the verge of extinction. Therefore amongst the qualities of an exemplary ruler his faith and piety occupy the first place. For the sake of these the Lord protects his kingdom from many woes. His practical capabilities in raising national life are already secondary.[21]

     The symbolic crown of Justinian’s attempts to unify the world in Christ was his building of Hagia Sophia, the greatest church in Christendom and without a peer to this day, uniting the vast space under the extraordinary dome in a marvelous way: “Solomon, I have surpassed thee”, he said on beholding the completed building. He was right – and it was the sheer beauty of this building that converted the envoys of St. Vladimir, the baptizer of Russia, to Orthodoxy over five centuries later…

December 6/19, 2019.

[1] Ilyin, “O Monarkhii i Respublike” (On Monarchy and Republianism), Sobranie Sochinenij (Collected Works), Moscow, 1994, p. 430.

[2] Thornton, Pious Kings and Right-Believing Queens, Belmont, Mass.: Institute, for Byzantine and Modern Greek Studies, 2013, pp. 251-252.

[3] St. Dmitri of Rostov, The Great Collection of the Lives of the Saints, House Springs, Mo.: Chrysostom Press, 2000, vol. IV: December, p. 121.

[4] Pope Agapetus, in A.A. Vasiliev, A History of the Byzantine Empire, Milwaukee: University of Wisconsin Press, 1958, p. 151.

[5] Dvorkin, Ocherki po Istorii Vselenskoj Pravoslavnoj Tserkvi,p. 178.

[6] Meyendorff, Rome, Constantinople, Moscow, Crestwood, N.Y.: St. Vladimir’s Seminary Press, 1996, p. 291.

[7]L.A. Tikhomirov, Monarkhicheskaia Gosudarstvennost’ (Monarchical Statehood), St. Petersburg, 1992, p. 162.

[8] Alexander G. Dragas, “The Constantinople and Moscow Divide”, Theologia, December, 2017.

[9]http://faculty.cua.edu/pennington/Law508/Roman%20Law/JustinianCodexEnglish.htm.

[10] Canning, A History of Medieval Political Thought 300-1450, London: Routledge, 1996, pp. 7-8, 9.

[11] De Ceremoniis Aulae Byzantinae, 1:39.

[12] Gilbert Dagron, Empereur et Prêtre (Emperor and Priest), Paris: Éditions Gallimard, 1996, p. 313.

[13] Alferov, “Ob uderzhanii i symphonii” (“On Restraining and Symphony”), http://www/monarhist-spb.narod.ru/D-ST/Dionisy-1./htm, pp. 9-10.

[14] Andrushkevich, “Doktrina sv. Imperatora Iustiniana Velikago” (“The Teaching of the holy Emperor Justinian the Great”), Pravoslavnaia Rus’ (Orthodox Russia), N 4 (1529), February 15/28, 1995, pp. 4-12.

[15] Kartashev, Vossozdanie Svyatoj Rusi (The Recreation of Holy Russia), Moscow, 1991, p. 83.

[16] Nikolin, Tserkov’ i Gosudarstvo (Church and State), Moscow, 1997, p. 17.

[17] Nikolin, op. cit., p. 32.

[18] According to later Byzantine practice, and the practice in many Orthodox kingdoms, there was one layman who could take part in the election of bishops – the emperor or king.

[19]See Bishop Pierre L’Huillier, “Episcopal Elections in the Byzantine East: a few comments”, Eastern Churches Review, vol. II, N 1, Spring, 1968, pp. 4-7, and The Church of the Ancient Councils, Crestwood, NY; St. Vladimir’s Seminary Press, 1996, pp. 36-38, 40, 41.

[20] Nikolin, op. cit., pp. 32-33, 34.

[21] Alferov, “Monarkhia i Khristianskoe Soznanie” (“The Monarchy and Christian Consciousness”), http://catacomb.org.ua/rubr10/R10_11.htm, p. 7.