Christian Attitudes toward Non-Christian Judiciary
The judicial services performed by recluses and monks in the fifth century have been interpreted as a later development of an earlier role played by Christian leaders: “In the previous age of martyrdom, the role had rested on the confessors. Martyrs awaiting trials had been approached for judgments on theological authenticity, for blessings, remission of sins, and no doubt for settlement of disputes.”184 Yet as the church began to acquire an institutionalized form, assuming a role hitherto performed by secular administrators, the bishop was expected to fulfill the role of saint. It is the bishop’s holy reputation that was to endow him the responsibility of providing for the poor, a task that transcended its literal meaning and took on a moral dimension: “In the Near Eastern model of society, the ‘poor’ was a judicial, not an economic category…. To give ‘justice’ to the ‘poor’ was a sign of royal energy—whether this was the energy of a king or God.”185
In reference to a bishop or a recluse, the principle that emerges from Christian sources is that all human problems should be addressed according to Christian ideals. With particular regard to judicial authority, these ideals can be summed up in three rules: contending parties should try to reconcile, thus avoiding having their matter brought before a judicial decision; secular rulers are not to pass judgment over Christians; and if judgment is inevitable, it is to be given by a “saint”—by a bishop or, as presented in the Liber Graduum, by a group of chosen perfect.
The principal approach, exhorting the believers to resolve their disputes quietly, appears in the Book of Matthew: “If another member of the church sins against you, go and point out the fault when the two of you are alone. If the member listens to you, you have regained that one. But if you are not listened to, take one or two others along with you, so that every word may be confirmed by the evidence of two or three witnesses. If the member refuses to listen to them, tell it to the church; and if the offender refuses to listen even to the church, let such a one be to you as a Gentile and a tax collector” (Matt. 18:15-17).
Thus disputes between believers are to be settled privately and are to be brought before the arbitration of the church only as a final resort. The New Testament’s concern with believers litigating before non-Christians is found in the Pauline command:
When any of you has a grievance against another, do you dare to take it to court before the unrighteous, instead of taking it before the saints? Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels, to say nothing of ordinary matters? If you have ordinary cases, then, do you appoint as judges those who have no standing in the church? I say this to your shame. Can it be that there is no one among you wise enough to decide between one believer and another, but a believer goes to court against a believer and before unbelievers at that? (1 Cor. 6:1-6)
The Pauline passage is the most explicit reference in the New Testament to the judicial authority of Christian leaders, ambiguously referred to as “saints.” It rejects the authority of the “unjust” and “unbelievers.” If the latter are contrasted with the “saints,” who were designated by their Christian community, whether clergy or monks, we may surmise that the expressions “unjust” and “unbelievers” refer to either secular or non-Christian figures.
By the end of the fourth century, “judges were no longer ungodly.”186 Whereas the New Testament addressed litigation outside the Christian community during the early phases of Christianity, The Apostolic Constitutions was composed in the post-Constantine era. By now, appearing before an ecclesiastical judge was a legitimate and legal judicial option. Written in Syria around the end of the fourth century, The Apostolic Constitutions is considered to be a comprehensive church order. It comprises earlier church orders such as the Didascalia, Didache, and the Apostolic Tradition.187 As such, it serves as a useful source for considering the early ecclesiastical position regarding Christian recourse to nonecclesiastical tribunals: “If by any management or temptation a contest arises with anyone, let him endeavor that it be composed, though thereby he be obliged to lose somewhat; and let it not come before a heathen tribunal. Nay, indeed, you are not to permit that the rulers of this world should pass sentence against your people; for by them, the devil contrives mischief to the servants of God and occasions a reproach to be cast upon us, as though we had not one wise man that is able to judge between his brethren (1 Cor. 6:1, etc.) or to decide their controversies.”188
Whereas the aforementioned Pauline passage uses expressions such as “unjust” and “unbelievers” to denote illegitimate judges, the passage in The Apostolic Constitutions refers to such judges as “heathen” and “rulers of this world.” Yet there is a greater ideal than turning to the “saint” instead of “rulers of this world”: “by suffering loss in the affairs of this life, thou wilt be sure not to suffer in the concerns of piety, and wilt live religiously, and according to the command of Christ.” The believers are called upon to endure loss and thus avoid contention as an act of piety and fulfillment: “In fact, to have lawsuits at all with one another is already a defeat for you. Why not rather be wronged? Why not rather be defrauded?”189
The concept is repeated once more in The Apostolic Constitutions, now in a harsher tone: “But if brethren have lawsuits one with another, which God forbid, you who are the rulers ought thence to learn that such as these do not do the work of brethren [in the Lord], but rather of public enemies; and one of the parties will be found to be mild, gentle, and the child of light; but the other unmerciful, insolent, and covetous. Let him, therefore, who is condemned be rebuked, let him be separated, let him undergo the punishment of his hatred to his brother.”190 The true believer, the “mild, gentle, and the child of light,” has no lawsuits. In contrast, a person who pursues lawsuits is considered a “public enemy … unmerciful, insolent, and covetous,” and therefore must be cast out of his community.
Examples of the application of these principles can be found in early Christian question-and-answer literature, legislation, and treatises on normative Christian behavior. A letter from the aforementioned collection of questions and answers of sixth-century Tawatha contains a question about the proper conduct in a case of legal contention, which is met with this answer: “Strive, to the best of your ability, to be reconciled quickly; for it is a sign of the perfect not to be troubled by temptations that come upon them. The weak person, however, if he postpones reconciliation, later arrives at it and ends up regretting the matter; then, instead of blaming himself, he turns to blaspheme against God and loses his soul. Thus the following words are fulfilled in that person: For what does it profit one to gain the whole world and forfeit one’s life?” (Matt. 16:26; Mark 8:36).
Once more, the idea of refraining from contention as the ideal solution to legal conflict is attested. The point is also found in a number of passages in the Liber Graduum. Yet in the latter, as the author of this work addresses groups of different levels of piety, he is aware that not all are capable of performing the entire set of commandments. Thus in chapter 11, he guides the perfect one, who is to set an example for other believers:
Do you want to become perfect? Pursue the great commandments. But pay attention, because if you prescribe these minor and major commandments to a person, he will not be able to observe them all at once, unless he leaves one in order to observe the other…. [O] ur Lord said, Do not judge (Matt. 7:1); and he [also] said, If the member refuses to listen to them, tell it to the church (Matt. 18:17). If both of them are [intended] for you, which one will you choose? … Therefore, these commandments, which do not judge anyone and love everyone, are spoken to the strong…. These minor [commandments] are spoken to the young and imperfect.191
The passage above suggests that although passing