L A PLURALIDAD DE DISCIPLINAS COMO TEMA TEOLÓGICO

Our clearest evidence of the ban is documentary; several instances survive of soldiers in the Roman army, stationed in Egypt, acknowledging paternity of the children borne to them during military service. These soldiers would not have needed to make these declarations if they were capable of entering into iustum matrimonium; children born of those unions would be presumptively

71 _{Most scholars, though by no means all, agree that the action Herodian refers to was, in fact, a} grant of marriage rights. For example, Campbell 1978 argues that “The word πρῶτος implies that Septimius made a decisive change, and so the phrase γυναιξί συνοικεῖν should refer to a grant of the right of legal marriage.” Ibid. 160. Campbell is joined by, among others, Jung 1982: 338, MacMullen 1963: 126, Phang 2001: 112, and Smith 1972: 63-82. By contrast, Peter Garnsey argues strongly against taking this passage to refer to a formal grant of marriage rights; Garnsey 1970a: 50 (“Not all ambiguities in the texts can be resolved, and so a final judgment cannot be reached. But it seems legitimate to argue that there is no firm evidence in the legal sources to support the notion of a grant of the ius conubii to soldiers by Septimius Severus.”).

72 _{i.e., legally recognized or legally consequential marriage; soldiers could and did participate in} romantic heterosexual relationships, which often took a marital form. For the significance of iustum matrimonium and its absence for soldiers, see Treggiari 1991: 46-47, 64. For discussion of soldiers’ informal marriages as evidenced in diplomata, see Phang 2001: 59.

legitimate.73 _{In one such declaration, preserved in fragments on two tablets,} 74 _{the father concedes} that he was unable to marry the child’s mother propter districtionem militiae;75 in context, this can only refer to a restriction on marriage (and thus on the siring of legitimate children).

Clearer evidence of the ban comes from what is known as the Cattaoui Papyrus.76 The Cattaoui Papyrus is a collection of summarized cases that were heard in the mid-first century C.E. by various prefects of Egypt; it describes seven cases, at least six of which concern the validity of military marriage.77 Notably, none of these cases simply inquired into the validity of any particular marriage; in fact, the six legible case summaries addressed very different legal questions. The six legible cases summarized in the Papyrus concern, in order: an action on depositum,78 an action on money-loan or mutuum,79 a request for an ἐπικρίσις of children,80 a request for exemption from the vicesima hereditatum or inheritance tax, and an attempt to register a child as a citizen of Alexandria.81 The one thread tying together these disparate legal issues—and that likely caused

73 _{See Treggiari 1991: 49-50.}

74 _{BGU VII.1690 = Schulz 1942: no. 14 = FIRA III.5 = Montevecchi 1948: no. 6 = CPL 160, for} which see Sanders 1928: 329; P.Mich. VII.436 = Schulz 1942: no. 15 = Montevecchi 1948: no. 7 = CPL 161, first published in Sanders 1937: 233.

75 _{This is bricolage, but well-supported: P. Mich. VII.436 provides …er distrinctionem militiae,} while BGU VII.1690 gives propter districtionem mil[]. See Phang 2001: 42.

76 _{While the papyrus is itself lost, it was first published at Botti 1894: 529. The edition here used} was first published (along with a portion of BGU 114, with which it is contiguous) in Grenfell et al. 1906: 55-105, and has been republished frequently; this analysis uses the reproduction of the papyrus contained in Phang 2001: 395-401.

77 _{The first case is too damaged to interpret with certainty; Grenfell et al. 1906: 68. For a discussion} of the value of these sorts of collections of judgments for later practitioners, see Connolly 2010: 41, Katzoff 1972, Robinson 2001: 61-62.

78 _{a type of loan in which the lender maintained ownership of the object itself, which had to be} returned to her in roughly the same form: Dig. 13.6.1.1 (Ulpian, ad Edictum).

79 _{A loan in which ownership transferred to the borrower, who then took on an obligation to return} some equivalent amount of goods: Dig. 12.1.2pr. (Paul, ad Edictum).

80 _{An ἐπικρίσις was a procedure by which individuals presented proof of their membership in a} particular citizen class. See Nelson 1979: 3-9.

each of these disparate cases to be collected into one papyrus—is that, in each case, the result of the petition hinged upon whether a marriage that the petitioner entered into while serving in the army had legal force.

As it turns out they did not; in each case, the prefect refused to recognize the marriage in question. In Case 2, the Prefect held that the goods deposited were intended to take the place of a dowry, and refused to grant an action specifically on the grounds that soldier marriage was forbidden.82 The disposition of Case 3 is fragmentary, but advocates in that case claimed that the money given was a concealed dowry and that the ban on soldiers marrying forbade an action to collect.83 In resolving Cases 4 through 6, which concerned the legitimacy of children, the prefect simply stated that a man could not be the legal father of children born during his service.84 Finally, in Case 7 the Ἲδιος λόγος Julianus simply stated that τὸ ἀναγνωσθὲν δάνειον ἐκβάλλω εκ παρανόµου γάµου γενόµενον, with no information calling the marriage into question other than the fact of the husband’s military service.85 These cases all come from the first half of the first century C.E.; no documentary sources refer to a ban on soldiers marrying after the reign of Septimius Severus.86

82 _{BGU 144 I 11-12: Οὐ γὰρ ἔξεστιν στρατιώτην γαµεῖν. This verdict ends with the laconic} statement κριτὴν δίδωµ[ι], δόξω πεπεῖσθαι νόµιµον εἶναι τὸν γάµον. Ibid. 12-13. Some of the earliest readers of the papyrus interpreted this as a simple indicative statement, showing the Prefect as making an exception to the established rule described above: “I will give a judge, and I agree the marriage is valid.” Meyer 1897: 54. However, the context indicates—as Phang has argued—a conditional sentence, and specifically a contrafactual one: “If I were to give a judge, I would be agreeing that this marriage was real.” See Phang 2001: 30.

83 _{BGU 114 I 25.}

84 _{P. Catt. III 13-14, 20-22, IV 24-26.} 85 _{P. Catt. V 22-23.}

86 _{One literary source, however, does appear to claim that soldiers were unable to marry even after} this period: Tertullian, a Christian author who cannot be firmly dated but who likely wrote in the first decade of the third century, claims in passing that perierunt caelibum familiae, res spadonum, fortunae militum aut peregrinantium sine uxoribus. Tert. de exhort. cast. 12.1; see also Garnsey 1970a: 48-49 n. 10. However, this is a thin reed. Tertullian’s text is an apologetic, not a treatise on

The legal sources further support this contention. While explicit discussion of soldiers’ matriomonial rights seems to have been beneath lawyers’—or compilers’—notice, several cases in the Corpus Iuris Civilis touch on military marriage. These cases are much like those excerpted in the Cattaoui Papyrus; instead of simple advisory judgements regarding the validity of a marriage in the abstract sense, they present concrete, consequential questions—is this will valid? Does this dowry give rise to legal obligations when this marriage dissolves?—based on the legal validity of the marriages into which these soldiers entered. Unlike the cases in the Cattaoui Papyrus, however, the post-Severan legal sources treat the marriages they discuss as uncontroversially valid.

There are several examples within the Corpus; to avoid duplication, I here mention three juristic opinions and two rescripts. First, Dig. 29.1.15.5, from Ulpian’s commentary on the Praetorian Edict, refers to a soldier’s ability to write a military will on behalf of a son-in-power: “[The soldier] can make a will for his son, just as much as for himself, under military law: and for the son alone, even if he has not made one for himself, since the will will be valid so long as the father has passed away either in military service or within the timespan of his service.”87 Similarly, Dig. 24.1.32.8 excerpts Ulpian’s commentary ad Sabinum, concerning a specific circumstance in which a soldier may make a valid gift to his wife:

If a soldier makes a gift to his wife out of the goods in his peculium castrense and is then condemned, the gift shall stand, since he is allowed to make a testament of those things as long as it is the case that he made the testament as he was being

military administration; there is no reason to think his claim was intended as precise or necessarily accurate, rather than as one part of a broader argument about the acceptance of Christianity within the empire.

87 _{Item tam sibi quam filio iure militari testamentum facere potest: et soli filio, tametsi sibi non} fecerit: quod testamentum valebit, si forte pater vel in militia vel intra annum militiae decessit. As discussed above, the children of soldiers would only be within their father’s power if they were the product of a legitimate marriage. See Jung 1982: 326. Ulpian appears to have produced most of his legal writing after 210; see Honoré 1994: 608.

condemned: for one who is permitted to make a will can also give gifts on account of impending death.88

While the term uxor does not always refer to a soldier’s partner in iustum matrimonium,89 in this context it must; Ulpian is identifying a specific exception to the customary rule against husbands and wives exchanging gifts outside of dowry.90 The clearest example of soldier marriages being recognized as legally binding, however, comes from Papinian’s Responsa, excerpted at Dig. 23.2.35: “A soldier who is in his father’s power does not enter into a matrimonium without his father’s consent.”91 While Peter Garnsey claims that matrimonium is here used “nontechnically,”92 and to refer to cohabiting unions between non-Romans without conubium, both Brian Campbell and Sara Phang are correct in noting that the substance of the rule here strongly suggests that matrimonium is meant in a legal sense. After all, the term filius familias is technical, and it would be absurd for Papinian to argue that soldiers were incapable of cohabiting without their father’s consent. This subordination of sons’ legal personhood into that of their fathers is a specific feature of the Roman law of persons, not of broader Mediterranean custom, and Gaius actually singles it out as such in his Institutes.93 Therefore, by the time of the Severan jurists preserved in the Digest,

88 _{Si miles uxori donaverit de castrensibus bonis et fuerit damnatus, quia permissum est ei de his} testari (si modo impetravit ut testetur cum damnaretur), donatio valebit: nam et mortis causa donare poterit, cui testari permissum est.

89 _{For example, after approximately 140 C.E. the formula on military diplomata, or certificates} given to veterans at the conclusion of their military service, granted conubium cum uxoribus quas tunc habuissent, or “marriage rights with the wives whom [the soldiers receiving the diplomata had at that time].” See Phang 2001: 76.

90 _{See Dig. 24.1.1 (Ulpian, ad Sabinum): Moribus apud nos receptum est, ne inter virum et uxorem} donationes valerent.

91 _{Filius familias miles matrimonium sine patris voluntate non contrahit.} 92 _{Garnsey 1970a: 108.}

93 _{Gai. Inst. 1.55: Fere enim nulli alii sunt homines qui talem in filios suos habent potestatem} qualem nos habemus.

soldiers appeared not only to have marriage rights, but to have those marriage rights universally understood and noncontroversial.