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Justinian I: Novel 77 [538] and Novel 141 [544 CE]


Roman Law

There had been earlier Roman legislation against homosexual acts. There was a shadowy Lex Scantinia supposedly passed in the early Republic against homosexual activity, but it seems to have had little effect. Certainly in the late Republic/early Empire the law was not applied, and social attitudes did not condemn homosexual sex (although "passive" sexual roles for men were despised). A tax was indeed levied on homosexual prostitutes. In the later Imperial period legal commentators enlarged the Lex Julia de adulteris (originally of c.17BCE) to include first offenses against boys and then, possibly, all male homosexual practices

In the Institutes of the Corpus Juris Civilis [which went into effect Dec 30, 533] summed up the legal opinons:

Institutes IV. xviii .4: In criminal cases public prosecutions take place under various statutes, including the Lex Julia de adulteris, "…which punishes with death (gladio), not only those who violate the marriages of others, but also those who dare to commit acts of vile lust with [other] men (qui cim masculis nefandum libidinem exercere audent)."

Note that this not only extends the law to homosexual acts, but also extends the death penalty to adultery, which was not part of the original law.

[Bailey 64-70].


Christian Emperors

The Christian emperors continued to collect taxes on male prostitutes until the time of Anastasius (ruled in Constantinople - 491-581). But there are occasional laws which seem to have been directed against homosexuality.

Against Same-Sex Marriage?

On Dec 16 342 Constantius and Constans passed a law (actually issued a a legal decision) which was included in the later Theodosian Code:

Cod.Theod. IX. Viii. 3: (=Cod. Justin IX.ix.31): When a man marries in the manner of a woman, a woman about to renounce men {quum vir nubit in feminam viris porrecturam), what does he wish, when sex has lost all its significance; when the crime is one which it is not profitable to know; when Venus is changed to another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment. [Bailey 70]

The meaning of this law has been hotly debated. Some have argued it indicates a previous legal status of same-sex marriage [John Boswell], others that "marries" simply means "give himself sexually"; and others that it relates to a a particular legal case.

The Law of 390

A clearer law was issued by Valentinian II, Theodoisus and Arcadius on Aug 6, 390. It also survives in the Theodosian Code:

Cod.Theod. IX. Vii. 6: All persons who have the shameful custom of condemning a man's body, acting the part of a woman's to the sufferance of alien sex (for they appear not to be different from women), shall expiate a crime of this kind in avenging flames in the sight of the people.

The wording is obscure - is it directed at passive partners or "sodomists" for instance? - but the attitude is clear. Again, it is less clear that this was ever applied, and, as noted, the tax on boy prostitutes continued to be collected. Still, this is beginning of the penalty or burning which was supposed to have been applied in areas in which Roman law ran. .

[Bailey 70-73]

Justinian [r. 527-565]

With Justinian, the situation seems to change. First we have historical accounts in Procopius and Malalas indicating that there was active persecution of some homosexuals. Secondly, Justinian's legislative activity was persistent. First there was the strictness of the Corpus Juris Civilis of 533. More significantly, Justinian issued two "Novels" directed against homosexual activity. Because of Justinian's fame as a legislator these have been widely read and were influential. But they are also qualitatively different from the earlier laws: they are as much about mix moralism with sterness and as extreme punishment. Although legal provisions against homosexual activity [Bailey 80, thinks primarily concerned with the corruption of boys and male prostitution] were maintained in later Byzantine legal codes, there is much less evidence that these laws were applied in practice, especially in the later years of the Byzantine empire.. [See the bibliography attached, especially Laiou..]

NOVEL 77 [358 CE] [relevant extracts]

…since certain men, seized by diabolical incitement practice among themselves the most disgraceful lusts, and act contrary to nature: we enjoin them to take to heart the fear of God and the judgment to come, and to abstain from suchlike diabolical and unlawful lusts, so that they may not be visited by the just wrath of God on account of these impious acts, with the result that cities perish with all their inhabitants. For we are taught by the Holy Scriptures that because of like impious conduct cities have indeed perish, together with all the men in them.

#1: [there follows a section condemning various blasphemies -- swearing by God's Hairs', or "by God's head"]…For because of such crimes [not clear if this means just blasphemies or homosexual practices as well] there are famines, earthquakes, and pestilences; wherefore we admonish men to abstain from the aforesaid unlawful acts, that they may not loose their souls. But if, after this our admonition any are found persisting in such offenses, first they render themselves unworthy of the mercy of God, and then they are subjugated to the punishment enjoined by law.

#2: For we order that most illustrious prefect of the Capital to arrest those who persist in the aforesaid lawless and impious acts [this must refer to homosexual and blasphemous acts] after they have been warned by us, and to inflict on them the extreme punishments, so that the city and the state may not come to harm by reason of such wicked deed. And if, after this our warning, and be found who have concealed their crime, they likewise shall be condemned by the Lord God. And if the most illustrious prefect find any who have committed any such offense. And shall omit to punish them according to out laws, first he will be liable to the judgment of God, and he will also incur our indignation.

[trans. in Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition, (London: Longmans, Green, 1955), 73-74]

NOVEL 141 [344 CE] [complete]

Preamble: Though we stand always in need of the kindness and goodness of God, yet is this specially the case at this time, when in various ways we have provoked him to anger on account of the multitude of our sins. And although he has warned us, and has shown us clearly what we deserve because of our offenses, yet he has acted mercifully towards us, and, awaiting our penitence has reserved his wrath for other times -- for he "has no pleasure in the death of wicked; but that the wicked turn from his way an live". Wherefore it is not right that we should all despise God's abundant goodness, forbearance, and long-suffering kindness and, hardening our hearts and turning away from penitence, should heap upon ourselves wrath in the day of wrath. Rather, we ought to abstain from all base concerns and acts -- and especially does this apply to such as have gone to decay through that abominable and impious conduct deservedly hated by God. We speak of the defilement of males (de stupro masculorum) which some men sacrilegiously and impiously dare to attempt, perpetrating vile acts with other men.

#1: For, instructed by the Holy Scriptures, we know that God brought a just judgment upon those who lived in Sodom, on account of this very madness of intercourse, so that to this very day that lands burns with inextinguishable fire. By this God teaches us, in order that by means of legislation we may avert such an untoward fate. Again, we know what the blessed Apostle says about such things, and what laws our state enacts. Wherefore it behoves all who desire to fear God to abstain from conduct so base and criminal that we do not find it committed even by brute beasts. Let those who have not taken part in such doings continue to refrain in the future. But as for those who have been consumed by this kind of disease, let them not only cease to sin in the future, but let them alos duly do penance, and fall down before God and renounce their plague [in confession] to the blessed Patriarch; let them understand the reason for this charge, and, as it is written, bring forth the fruits of repentance. So may God the merciful, in abundance of pity, deem us worthy of his blessing, that we may all give thanks to him for the salvation of the penitents, who we have now bidden [to submit themselves] in order that the magistrates too may follow up our action, [thus] reconciling to themselves God who is justly angry with us. And we also, wisely and prudently having in reverence the sacred season, entreat God the merciful that those who have been contaminated by the filth of this impious conduct may strive for penitence. Next, we proclaim to all who are conscious that they have committed any such sin, that unless they desist and, renouncing it [in confession] before the blessed Patriarch, take care for their salvation, placating God during the holy season for such impious acts, they will bring upon themselves severer penalties, even though on other counts they are held guilty of no fault. For there will be no relaxation of enquiry and correction so far as this matter is concerned, nor will they be dealt with carelessly who do not submit themselves during the time of the holy season, or who persist in such impious conduct. Lest if we are negligent we arouse God's anger against us. If, with eyes as it were blinded, we overlook such impious and forbidden conduct, we may provoke the good God to anger and bring ruin upon all - a fate which would be deserved.

[trans. in Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition, (London: Longmans, Green, 1955), 74-75]

It may be noted that, although Justinian was clearly concerned with homosexuality, these Novels do not, as Bailey points out create any new crime or impose any new penalties {for the crimes and punishments were already in the Corpus Juris Civilis . In fact the are more exhortations than laws, and refer to local circumstances and seasons.

Bailey notes that the so-called "crusade" of the Christian emperors against homosexuals was nothing of the sort. Late Roman pagan lawyers already applied the Lex Julia to homosexual acts; the number of decrees issued by the Christian emperors amounts to four in a two-hundred year period, and of these, the two by Justinian are as much concerned with penance as penalty [Bailey 79-81]. The implications of this point of view in understanding homosexuality in Byzantine society have not really been explored.


By Paul Halsall, April 1997


Bibliography

Bailey, Derrick S., Homosexuality and the Western Christian Tradition, (London: Longmans, Green, 1955;repr. Hamden, Ct.: Archon/Shoestring Press, 1975)

Beck, Hans-Georg, Byzantinisches Erotikon: Orthodoxie-Literatur- Gesellschaft, (Munich: 1983)

Boswell, John, Christianity, Social Tolerance and Homosexuality, (Chicago: Univ. of Chicago Press, 1980) , esp. 137-66

Boswell, John, Same-Sex Unions in Pre-Modern Europe, (New York: Villard, 1994)

Brooten, Bernardette J, Love Between Women: Early Christian Respones to Female Homoeroticism, (Chicago: University of Chicago Press, 1996)

Bullough, Vern L., Sexual Variance in Society and History, (Chicago: Univ. of Chicago Press, 1976)
see Chapter 12: Byzantium and Eastern Orthodox Christianity.

Dalla, Danilo. "Ubi Venus mutatur": omosessualità e diritto nel mondo romano. (Milan. 1987)

Dauphin Claudine, Brothels, Baths and Babes Prostitution in the Byzantine Holy Land, Classics Ireland 3, 1996 [At UCD]

Galatariotou, Catia, "Holy Women and Witches: Aspects of Byzantine Conceptions of Gender", Byzantine and Modern Greek Studies 9 (1984/85), 55-94

Galatariotou, Catia, "Byzantine Ktetorika Typika: A Comparative Study", Revue des études byzantins 45 (1987), 77- 138

Galatariotou, Catia, "Eros and Thanatos ", Byzantine and Modern Greek Studies 13 (1989), 95-137
esp. pp. 105, 117-124

Jenkins, Romilly J.H., "Constantine VII's Portrait of Michael III", in Bulletin de las Classes Des Lettres et des Sciences morales et politiques, Académie Royale de Belgique, 5e série, XXXIV, (1948), 71-77

Koukales, P, The Private Life of the Byzantines
Byzantinon bios kai politismos 8 vols., (Athens: Institut Francais, 1947-57)(in modern Greek) Vol IV, 505-39 on homosexuality: NB sometimes referred to as Vie et Civilisation byzantines - check for French translation.

Laiou, Angeliki, Marriage, Amour et parenté à Byzance aux XIe-XIIIe siècles, (Paris: De Boccard, 1992)
pp. 74 ff. Contains one of the most important modern analyses of Byzantine homosexuality.

Levin, Eve, Sex and Society in the World of the Orthodox Slaves, 900-1700, (Ithaca and London: Cornell University Press, 1989)

Mullet, Margaret, "Byzantium: A Friendly Society?", Past and Present 118 (1988), pp. 3-23
p. 11 on homosexuality.

Pitsakes, Konstantinos, "He thes ton homophylophilon ste Byzantine Koinia" in Chrysa A. Maltezou, ed., Praktika Hemeridas: Hoi Peridoriako sto Byzantio, (Athens: 1993), 171-269
A major article in modern Greek.

Ringrose, Kathryn, "Living in the Shadows: Eunuchs and Gender in Byzantium", in Gilbert Herdt, ed., Third Sex, Third Gender, (New York: Zone, 1994), 85-110

Troianos, Spyros, "Kirchliche und weltliches Rechtsquellen zur Homosexualität in Byzanz", Jahrbuch des Öst. Byzantinistik 39 (1989), 29-48
"Ecclesiastical and secular legal sources on Homosexuality in Byzantium". A vital summary.

Zymaris, Nicholas, "The Rite of `Spiritual Brotherhood', Homosexuality, and the Orthodox Church", Axios (May 1984), 6-8