There is something peculiar about our knowledge of Byzantine manuscript scholia: in one sense we know these texts quite well, and yet in another we hardly know them at all. We know them well in that many significant scholiastic traditions have been published and studied. To get a sense of this, one only needs to dip into Eleanor Dickey's Ancient Greek Scholarship, an impressive catalogue of several centuries' worth of editions and studies on the scholia.Footnote 2 Yet Dickey, as one can guess from the title of her book, is a classicist, and the majority of the scholarship she has catalogued, even when it has been done by those well-versed in Byzantine studies, has a distinctly classicist flavour: it has been overwhelmingly concerned with the excavation of the classical past in Byzantine manuscripts, whether through extracting or reconstructing ancient scholarship, improving critical texts, or simply enriching our modern literary or historical appreciation of the classical tradition.Footnote 3 In this sense, scholarship on the scholia recalls the days when Byzantine studies was mostly a supplementary discipline of classical philology.
A critical question for Byzantinists — what do these traditions tell us about the Byzantines — has been broached surprisingly rarely. Almost inevitably, scholia on post-classical texts, or the ‘new’ (usually Byzantine) scholia on classical texts, are the least likely to be studied, and the least likely to have satisfactory editions. When they have been studied, their implications for Byzantine studies have often been treated in passing. Only quite recently have studies on specific scholiastic texts or traditions emerged with a more strictly Byzantine orientation.Footnote 4 But we are still far from a synoptic — much less comprehensive — picture of what Byzantine manuscript scholia can contribute to our understanding of Byzantine culture and society.
This is a situation worth rectifying. For cultural historians, scholia represent potentially unique windows onto how the Byzantines read, encountered and interacted with their texts. They can also shed light on social realities and help refine the history of the sources. One tradition of scholia, those connected to the texts of the canonical Collection in Fifty Titles (Coll50) and the Collection in Fourteen Titles (Coll14), happen to illustrate these potentials very well.Footnote 5
I. The Byzantine canonical scholia: overview and taxonomy
The tradition of Byzantine canonical scholia on the Coll50 and the Coll14 texts is modest, especially when compared to the massive apparatuses that can be found accompanying Homer, the dramatists, biblical texts, or the secular legal texts.Footnote 6 Of the published scholia, the longest are approximately 400–500 words, but the average is closer to 20.Footnote 7 The total number of scholia in the Coll50 and Coll14 texts depends on exactly what one counts. A little over a thousand texts have been published to date. Perhaps half of that number is still unpublished, although an exact determination awaits a new edition.Footnote 8 This figure does not include scholia on later canonical texts based on the Coll50 or Coll14, such as the twelfth-century commentaries, or the Epitome of Constantine Harmenopoulos.Footnote 9
The distribution of the scholia among the canonical sources is uneven. Manuscripts vary, but the early local councils of Ancyra, Neocaesarea, Laodicea, and especially Gangra, as well as the later Photian councils, Protodeutera a. 861 and Hagia Sophia a. 879, tended to attract few, and relatively short and infrequent, annotations. This is also true of patristic sources such as Timothy, Theophilus, Athanasius, or Gennadius. By contrast, the Apostles, Trullo, Carthage, and especially Basil are frequently accompanied by exceptionally rich apparatuses. Most other sources fall somewhere in between. This variation may reflect different patterns of reception (perhaps lower for the local councils), the comparative prestige of certain sources (esp. Apostles, Basil), or the relative need for interpretative aids (i.e., more for Carthage, a western source translated from Latin, and often difficult to read). It may also simply reflect the vagaries of transmission.
Across the Coll50 and Coll14 traditions, four basic types of scholia may be identified:
1) Rubrical or summary scholia. These are simple topical summaries of content, either of a whole canon, or of parts of a longer canon, sometimes found along the margins of longer texts as a kind of running guide. They often start with περί or ὅτι. Typical examples would include ‘Regarding hermits’ (Sbor. 401, on Trullo 42) or ‘That the property of the bishop must be kept separate’ (Syn. 51, on Apostolic 40). Constantinople 6, Basil 1 or Gregory of Nyssa's canonical letter often provide good examples of running rubrics. As a whole, they are quite common.
An important subset may be termed ‘schematic rubrics'. These diagram-like rubrics graphically illustrate distinctions or different aspects of an issue treated in the text. For example, the scholion ‘There are three parts of the soul: the rational, the desirous, and the appetitive’ (Sborn. 674, to Gregory of Nyssa's introduction) is generally found in the manuscripts with the first clause on one line and three lines extending below it to each of the following three parts.Footnote 10 Such rubrics are common when any type of distinction is made. Their purpose is no doubt pedagogical, and perhaps mnemonic. They are known in other scholiastic traditions, for example, those on Plato.Footnote 11
Another subset of rubrical scholia are the penitential scholia. These highlight the type and length of a rule's sanction: ‘Here adultery is penalized by seven years’ (Syn. 110, on Ancyra 20); ‘Let the fornicator mourn for two years, for two let him hear; for two let him prostrate; for one let him stand’ (Sbor. 631, on Basil 58). These point to one eminently practical use of canon law manuscripts: as handbooks for apportioning penances.
The rubrical scholia, as a whole, appear to be quite dull, and they are among those most likely to be omitted by editors. But they raise interesting questions about what a canon's central issue was perceived to be, and why certain aspects were deemed more worthy of emphasis than others. A quick example is afforded by Trullo 95, which deals with the various modes of reception of heretics into the Byzantine church. It does not inspire a large quantity of marginalia, but when a few scholia emerge in an eleventh-twelfth century manuscript (Vat. gr. 1980), one particular issue is highlighted: rebaptism (‘Why some heretics are baptized’ – Sbor. 447). This naturally raises the question: was this a particularly topical issue at that time? (Latin rebaptism?)
2) Reference scholia. These scholia give cross-references to other canons or civil legal texts. For example, ‘Seek the 2nd canon of the first synod; canons 19, 73, 76, 95 of Carthage; canon 8 of the synod in Trullo; canon 2 of the [second] synod in Nicaea; constitutions 2 and 17 of the Novels.’ (Syn. 315) Similar scholia are well known from the civil legal texts. They almost always appear in highly abbreviated form.
Like the rubrical scholia, these scholia are both common in the manuscripts and prone to omission in editions. Until a complete edition is produced it will be difficult to assess their significance. They may, however, turn out to be more interesting than they first appear. Which canons are cited? Which not? Why? It may be that we can learn more about how a canon was understood by how it was contextualized by other rulings. The omission of certain sources could also assist in determining the date of composition of a scholion. It may even be possible to relate reference scholia to the systematic portions of the collections, which are essentially organized collections of cross-references.Footnote 12
3) Exegetical scholia. These provide substantive clarification, explanation, or further interpretation of a text. These are the best published of all the scholia, and include all the longest texts. They are quite varied, but a few distinct sub-types may be identified, many recognizable from the broader tradition of Greco-Roman exegetical practice.Footnote 13 There are thus ‘historical’ comments (ἱστορικά), which provide further information on geographical or historical realia. For example, Sbor. 27, to Apostles 37 (on the date ‘twelfth of Hyperberetaios') notes: ‘This the ninth of October according to the Romans.'Footnote 14 There are scholia that identify biblical, patristic or canonical citations: ‘Of the letter to the Hebrews’ (Sbor. 351).Footnote 15 There are also grammatical (τεχνικά) and lexical (γλωσσηματικά) notations, clarifying the meaning of a construction or providing a gloss on an unusual or archaic word. For example, Sbor. 455, to Second Nicaea 1 (to ‘unshaken and unmoved’ [ἀκράδαντα καὶ ἀσάλευτα]): ‘We must hear these as adverbial, as ‘unshakenly and unmovably [ἀκραδάντως καὶ ἀσαλεύτως]'.Footnote 16 There are even a very few text-critical comments (διορθωτικά), discussing variant readings or other textual issues.Footnote 17
Not surprisingly, exegetical scholia on the canons often evince characteristically juristic preoccupations, such as concern about definitions, distinctions, gaps in the legislation, ambiguities, or contradictions. For example, scholia explain the difference between ‘rustic’ (ἀγροικικαί) and ‘country’ (ἐγχωρίοι) dioceses (Sbor. 189), or between letters pacific (εἰρηνικαί) and letters commendatory (συστατικαί) (Sbor. 20a). In Trullo 24, which forbids the attendance of clergy at wedding games, a scholiast quickly comments that clergy are, of course, permitted to stay at a solemn wedding (Sbor. 374). Apostolic 65 condemns those who kill someone from just one strike; a scholiast asks what happens to those who strike someone multiple times but do not kill them (Sbor. 41)? Yet another scholiast, commenting on Chalcedon 15, worries about the age at which a deaconess may be ordained: 40 years, as Chalcedon 15; or 50, as the civil law; or 60, as scripture? (Syn. 195) Yet another is eager to point out the discrepancy in the meaning of ‘neophyte’ between Nicaea 2 and Serdica 10 (Sbor. 73). Many similar examples could be offered.
Interestingly, the more technical types of juristic scholia found in the civil tradition (generally traced to the teaching of the antecessores in sixth-century Berytus and now found primarily in the ‘old scholia’ of the BasilicaFootnote 18) are almost entirely absent. Thus, there are no instances of case-examples with the stock figures ‘Peter’ and ‘Paul’. There are no short narrations of a law's original circumstances, or explicit comparison of jurists' opinions. There is no language of θεματίζω/θεματισμός, παραγραφαί, παράτιτλα, παράπομπαι or the like. Generally, inasmuch as the technical and conceptual architecture of the canon law is less developed than the civil, so also the technical and conceptual complexity of the canonical scholia is lower than their civil counterparts; they are, as a rule, shorter and simpler. This contrast fits with a pattern that obtains generally in Byzantine legal discourse: a clear affinity exists between the church-legal and civil-legal texts, but the former never adopt the more technical trappings of the latter nor attain to the same level of doctrinal sophistication.Footnote 19 Byzantine canonical discourse never seems to form itself as a direct image of the more professionalized, civil discourse to the same degree that will be observed, for example, in the high medieval west.Footnote 20
4) Emphasis or highlighting scholia. There is a final, fascinating type of scholia, which is much neglected.Footnote 21 These are the small indications in the margins that draw attention to adjacent passages. Two varieties are especially common: σημείωσαι and ὡραῖον notations. The former mean nota bene; the latter connote something between ‘beautiful/fine’ and ‘useful'.Footnote 22 Sometimes these occur together, and occasionally they are rendered more emphatic by the addition of λίαν or ἄγαν (‘very').Footnote 23 They tend to run in identifiable traditions in the manuscripts, and are more evident in some sources than others. They are particularly (at times bizarrely) rich in Basil. Some are quite venerable, found in the oldest extant canonical manuscript.Footnote 24 Occasionally one also finds χρηστός (‘useful') or ὅρα (‘see’, ‘look’).Footnote 25 The interpretive potential of these small notes is unexplored. What exactly do Byzantine readers/scribes find worthy of emphasis in the canons? What type of sentiments? We will examine a few examples shortly.
II. Source History. Arethas of Caeasarea: the forgotten canonical ‘commentator'?
The potential of the scholia for illuminating several aspects of the standard source narrative have been largely unrealized over the last century. Several important observations about these texts have been made, but these have been mostly overlooked or under-developed in recent scholarship.
One of the great mysteries of the Byzantine canonical tradition is the explosion of formal jurisprudential work in the twelfth century. This development begins as a curious proliferation of question-and-answer type treatises — ἐρωταπόκρισις materialFootnote 26 — at the very close of the eleventh century, and comes to its fullest flowering in the ‘big three’ corpus commentaries of the twelfth century: that of Alexios Aristenos, working c. 1130; that of John Zonaras, writing perhaps in the 1150s;Footnote 27 and finally that of Theodore Balsamon, working and re-working his commentary c. 1177–93. Today, thanks to the work of Victor Tiftixoglu, we also know of a fourth, anonymous commentator who was probably active while Balsamon was still alive and who seems to have substantially re-worked (and challenged) portions of Balsamon's commentary. This work remains unedited in Sinai 1117. It does not seem to have enjoyed a wide circulation.Footnote 28
Before this point the jurisprudential silence is almost deafening. According to the standard source histories, one has to reach all the way into the sixth and early seventh century to find what might — generously — be considered a significant moment in the jurisprudential shaping of the canonical material. This is the period that saw the creation of the thematic or systematic re-workings of the standard source collections.Footnote 29 From that time until the eleventh/twelfth century, the jurisprudential landscape is otherwise remarkably barren. Canonical legislation continued, and the standard collections were gradually updated. Some interesting hybrid collections, like those of Nikon of the Black Mountain, appeared.Footnote 30 But only a few texts produced in this period could be counted as properly jurisprudential/exegetical: a few question-and-answer texts associated with Photios, some works on the transfer of bishops by Arethas of Caesarea, and a handful of treatises on marriage and episcopal elections.Footnote 31
This gap, however, has opened in the narrative because the scholia have been mostly ignored. Scholars have generally avoided these texts — and for some good reasons. Quite aside from technical textual issues,Footnote 32 authorship is often difficult or impossible to determine: scholia on the Coll50 and Coll14 are anonymous, and prone to re-editing. More importantly, dating is notoriously problematic. If we are lucky enough to have a manuscript that is securely dated — far from a given in the Greek tradition — the scholia could nevertheless have been added long after the original production. Without careful attention to hands and inks — the latter requiring physical examination of the manuscript — it is often difficult to be completely sure of the synchronicity of a text and its marginalia. Prudence has advised caution.
But caution about dating has been excessive. There are approximately 12 manuscripts dated to the ninth and tenth centuries which contain scholia. We can add a few more from (probably) the earlier eleventh century.Footnote 33 As a rule, the hands for the scholia seem at least broadly appropriate to the manuscripts' era. Even if in some cases it should turn out that a manuscript or a set of scholia are archaicizing and the manuscript and/or scholia misdated, it is reasonable to assume that at least most hail from before the twelfth century — enough for our purposes.
However, even if we wish to exercise a great deal of caution, it is possible to dismiss virtually all of these manuscripts from our consideration and still make substantive assertions about pre-twelfth century scholia. As it happens, there is one tenth-century manuscript of whose date we are virtually certain, and which contains many of the most important early scholia: Rome Vallicelliana F.10.
This manuscript is one of the famous manuscripts commissioned by Arethas of Caesarea (c. 850-after 932; bishop from 902) and it contains his own autograph scholia.Footnote 34 Arethas' hand in this manuscript has long been known, or at least suspected. In 1868 Cardinal Jean-Baptist Pitra raised Arethas' name as a possibility for the manuscript's distinctive scholia.Footnote 35 In 1914, the great Russian canonist Vladimir Beneshevich and the Arethan scholar Socrates Kougeas together re-discovered and re-asserted this possibility much more forcefully.Footnote 36 Their work convinced Patricia Karlin-Hayter and Paul Lemerle,Footnote 37 and in 1972 Anna Meschini, in a short monograph, reviewed the manuscript closely and confirmed that in her opinion the scholia were in the main from Arethas' own hand.Footnote 38 Lidia Perria, the most recent paleographer to survey the Arethan manuscripts, has taken this view for granted.Footnote 39 There is little question, then, that we have a significant set of scholia – about 300 – whose terminus ante quem is sometime in the early tenth century.
Caution is still advised. The fact that the scholia were written by Arethas' hand does not mean that he composed them. (Bernard Stolte is right in saying that we can never assign an anonymous canonical scholion with absolute confidence to any one author.Footnote 40) But there are many factors that strongly point to Arethas' authorship.
First, the scholia seem to constitute a defined set in the tradition, with few of them enjoying independent streams of transmission.Footnote 41 This suggests a coherence of compositional act, which points to a single author. Were this set of scholia a compilation of older traditions, we might expect more of them to enjoy independent streams of transmission.
An analysis of style further reinforces this sense of coherence. Most of the scholia are very distinctive in tone and syntax. In particular, they frequently exhibit a recherché obscurity combined with a bold, almost irascible, character. This strongly distinguishes them from the other scholia, and points directly towards Arethas, who is well known for precisely these characteristics.Footnote 42 Kougeas was completely convinced that the overall tonality, diction and character of the scholia were a fit for Arethas.Footnote 43
It is the content of the scholia, however, that points most forcefully to Arethas. One scholion, considered particularly telling, refers to Basil the Great as the light of ‘our’ Caesarea: ὁ τῆς καθ᾽ ἡμᾶς Καισαρείας φωστήρ (which also demonstrates that Arethas was bishop of Caesarea when this scholion was written).Footnote 44 But equally important is the fact that the topic of tetragamy and multiple marriages is a special preoccupation of the author.Footnote 45 Here it is interesting to note that, although obscure in meaning, the scholia are generally negatively disposed towards tetragamy.Footnote 46 This may suggest that these scholia were written before Arethas' notorious pivot from the anti- to the pro-tetragamy camp. If this pivot occurred in 907, and the controversy did not break out until 905/6, we might reasonably venture that these scholia were written in the intervening year — and thus again assert a terminus ante quem for the manuscript. If we assume that Arethas would most likely have acquired a canonical manuscript at or around the time of his ordination to the episcopate c. 902/3, we could even venture a likely window for the manuscript's acquisition, and perhaps creation, between c. 902–906.Footnote 47 However, the scholia may have been written later, retrospectively, and Arethas' position throughout the controversy is in many ways opaque and confusing; further, Perria has noted that the scholia seem to have been added in phases.Footnote 48 The situation may be more complex.
In any case, aside from the tetragamy, there are numerous other preoccupations of the scholia that seem coherent with Arethas' life and concerns. For example, he expresses disdain of those who ‘now’ resign without any legitimate reason – presumably a jab at Patriarch Nicolas I Mystikos.Footnote 49 We also know that Arethas was a self-consciously learned author who had conflicts with fellow bishops; as it turns out, the scholiast is unusually sensitive about episcopal ignorance, misbehaviour, and corruption.Footnote 50 There are also a surprising number of scholia that are concerned with imperial wrong-doing, including one pointed question referring to a provision in Carthage 30 for litigants who face violence: ‘And if the one who is using violence in an accusation is an emperor, what do you ordain, holy fathers?'Footnote 51 Presumably this reflects Leo VI's two attempts to try Arethas for ‘impiety'. No doubt related are sharply worded concerns about false accusations against bishops.Footnote 52 Finally, to speak broadly, Arethas was among the most learned men of his day, and there is no question that the Arethan scholia are as a whole distinguished by unusual length and creativity.Footnote 53
If Arethas is indeed the author of at least most of these scholia — which seems almost certain — our narrative of the development of Byzantine church law changes significantly. A quasi-commentator has suddenly emerged out of the margins of a tenth-century manuscript. For a legal tradition that contains perhaps 4–5 figures who might be considered ‘commentators’, the significance of even one additional voice is immense. The fact that this voice comes from the Macedonian age, two centuries before the next earliest commentator, makes this identification particularly important. It will take historians and canonists some time to digest fully the implications for our understanding of the development and scope of Byzantine church law.
One immediate question, however, is the relationship of this early scholiast and the later commentary tradition. Perhaps the commentators do not emerge quite as ex nihilo as they seem? Over a century ago Mikhail Kraznozhen, in what is still the only monograph on the twelfth- century commentators, did consider the scholia as a possible source for the corpus commentaries. His chapter on the scholia remains the single most significant treatment of these texts to date.Footnote 54 Unfortunately, Kraznozhen was writing before it was realized that the Vallicelliana scholia were by Arethas' hand, and his analysis is problematic in a number of ways. He recognized (on the basis of Hergenröther's earlier suggestions) that at least some of the scholia must be pre-eleventh century,Footnote 55 and that there is overlap between the scholia and the commentators. However, he did not consider that some of the scholia might post-date the commentators, and thus be drawing on the twelfth-century commentaries. He was also very generous in identifying dependencies, citing vague similarities as evidence of knowledge of the scholia; many of these might better be accounted for as independent or very routine observations.Footnote 56 Most problematically, he seems in places to have confused two different Vallicelliana manuscripts, with the result that he sometimes cites Balsamon and Zonaras as quoting Vallic. F.10, when in fact they are being cited in Vallic. F.18, a 16th c. manuscript of Manual Malaxos.Footnote 57 His conclusions therefore must be treated with caution.
Fresh analysis, however, reveals that the scholia in Vallic. F.10 were without any doubt known by at least one commentator: Aristenos. In numerous places Aristenos cites the scholia verbatim, if never with attribution.Footnote 58 By contrast, Zonaras and Balsamon cite Arethan scholia only when Aristenos has first quoted them, and in ways that do not demonstrate independent access to the texts.Footnote 59 Arethas' scholia therefore clearly penetrated the later tradition through Aristenos. This influence may in some cases have been significant. To give one example: Arethas may be the source of a controversial reading of one part of Chalcedon 28, voiced by Aristenos, but rejected by Zonaras and Balsamon.Footnote 60 The question involves the application of the word ‘only’ in one phrase, and has implications for the extent of Constantinopolitan jurisdiction.Footnote 61
III. Edgy commentary: the hermeneutic particularities of the scholia
Whatever their source-historical import, it is the hermeneutic characteristics of the scholia that may be of greatest interest to the broader audience of cultural and legal historians. Marginal notations occupy an almost unique place in the Byzantine textual patrimony. As a quasi-genre of commentary, they would seem to occupy a tantalizingly liminal space between a Byzantine reader's immediate reactions to, and thoughts about, a text, and a more formalized, composed exegesis. Certainly in physical shape, physical location on the page, style, and grammar they strike a distinctly ‘sub-literary’ figure: they seem unguarded, off-the-cuff, informal — ‘marginal'. As such, we could expect that they might offer a view of unparalleled intimacy and directness onto something that can be otherwise elusive: the very operation of Byzantine reading and interpretative practices. At the very least, they might offer a different perspective on these practices.
The canonical scholia happen to be a particularly good test case for exploring such hermeneutic possibilities, since they can be easily compared to much more finished, formal commentary traditions: the commentaries of the twelfth century. When this comparison is made, the scholia do emerge as surprisingly distinctive.
By far their most striking characteristic, compared to the commentaries, is their unusually colourful and bold character; they are much more prone to polemical, ironic, caustic and even subversive commentary. Written along the physical edges of the manuscripts, they seem to skirt along the very edges of the acceptable and conventional. To give a small example: Apostolic canon 55 forbids ‘insulting’ (ὑβρίζω) a bishop. The twelfth-century commentators give some rationale for the canon, but do little more than paraphrase the rule.Footnote 62 But a scholiast (probably Arethas) ventures that this rule refers only to ‘insolent and arrogant’ insults; apparently it doesn't apply when the bishop does something worthy of insult!Footnote 63 The acerbic, and in fact subversive, implication of this comment is immediately evident: there are times when insulting a bishop might be acceptable.
Another, more substantive instance is preserved in at least four manuscripts (twelfth-thirteenth century).Footnote 64 Commenting on Chalcedon 28, which treats the primatial privileges of Constantinople, a scholiast asserts that, since Rome no longer holds the civil primacy, it also no longer holds the ecclesiastical primacy. Thus, Constantinople should be considered not simply equal to Rome, but superior.Footnote 65 This bold notion, although not unknown in broader Byzantine literature, is attested (to this author's knowledge) in only one other place in the canonical tradition.Footnote 66 The commentators are certainly more circumspect.Footnote 67
On a few other occasions, scholia get even more audacious: they directly criticize a canon of the ‘core’ tradition.Footnote 68 Thus, Nicaea 13 declares that a penitent who had been granted communion on the verge of death, but then recovers, should return to penance. But a scholion in a tenth-century MS (Vat. gr. 1080) disagrees, and says that this is ‘most unreasonable’, ‘absurd’ (ἀλογώτατον), as it would imply that we expect God to adhere to a judgement when we do not.Footnote 69 Arethas does something very similar with a canonical excerpt from Basil's treatise on the Holy Spirit (from chapter 29, ‘canon’ 92). Here Basil suggests that the doxology ‘with the Holy Spirit’ is not to be found in the Scripture. Arethas retorts: ‘I'm amazed how the present saint says these things, since the holy scriptures are full of the all-holy theology of the Spirit…[Arethas adduces an example from Acts 5]…I'm amazed that he says this.'Footnote 70 Arethas' frustration and astonishment is quite palpable. It is difficult to think of a place in the commentators where such important sources are treated so brusquely.
A related, and widespread, phenomenon are the many occasions when the scholia shift from offering substantive exegesis to editorializing — i.e., to providing commentary in the sense of ‘colour commentary'. In these cases, the canons typically evoke an expression of indignation, perplexity, critique, or admiration from the scholiast. In effect, the scholiast does not so much explicate the canon as express a moral or qualitative judgement on the provision at hand or the circumstances being addressed. Such sentiments are not conspicuous in the commentaries.
These editorializing comments can sometimes be very brief. For example, some canons are noted as simply ‘severe’, ‘harsh’ (αὐστηρός),Footnote 71 while certain misbehaviours are characterised as ‘fearful’, ‘frightening’ (φοβερός).Footnote 72 Some rules (generally of western origin) are ‘strange’, ‘foreign’ (ξένος).Footnote 73 In one case a regulation is noted as ‘philanthropic'.Footnote 74 Other examples are more involved, and can contain interesting social-historical nuggets. Among them is a scholion to Trullo 70, which forbids women from speaking during the liturgy. Here Arethas notes, quite contrary to the twelfth-century commentators, that ‘this does not bar simple speaking (for this is not permitted for men either [!]) but forbids teaching. For it seems that at that time some women were able to do this, which now not even bishops are able to accomplish.'Footnote 75 Here Arethas offers on the one hand a substantive exegesis, but on the other hand sharp editorial on contemporary episcopal abilities. Another striking example is Arethas' comments on Second Nicaea 6. Here the canon legislates on yearly provincial synods and notes that metropolitans are not to exact anything from the gathered bishops. Arethas remarks: ‘I'm amazed at you, holy ones! And for what other reason is the gathering now? Is it not to levy tribute? Entirely.'Footnote 76
This last example exhibits another interesting feature of some scholia: Arethas is asking a question, and directly addressing the authors of the canons. This raises the issue of the literary form of the texts. The scholia are not simply indicative statements. There is a querying and conversation going on.Footnote 77 In this, the scholia have an almost oral quality. Even a few examples will illustrate this point. Apostolic 59 ordains that bishops must take care of the clergy's materials needs. Arethas asks: ‘And if he not only does not provide, but even deprives him of the means to live, what would he suffer?'Footnote 78 Trullo 19 establishes regulations on teaching the laity; Arethas notes: ‘The law is most excellent, but what should we teach, not even knowing the names of the sacred books?'Footnote 79 Carthage 70 rules that the higher clergy should abstain from their wives. If they do not, the canon says, ‘let them be removed from their order'. Arethas sensibly, if probably sardonically, asks: ‘And who will be able to convict them?'Footnote 80 Numerous other examples can be adduced, and not all from Arethas.Footnote 81
It is sometimes hard to know how to take these questions. Some are clearly rhetorical, even ironic or impetuous – which is fascinating given that the canonical tradition is otherwise so permeated by an aura of sacrality and reverence. At times, however, the questions seem genuine. Carthage 101 refers to ‘strife’ between Rome and Alexandria; one scholiast asks: ‘What was the strife?'Footnote 82 Even Arethas, on Serdica 13, which forbids clergy from accepting excommunicated clergy, seems to truly wonder: ‘If this is about the clergy, what about the laity?'Footnote 83 Ancyra 10 permits deacons to be married in certain circumstances. A scholiast asks: ‘Does this contradict the apostolic canons or not?'Footnote 84
Whether rhetorical or real, all these queries clearly evince a kind of ‘thinking out loud'. But for whom exactly are these questions meant? Who is the audience? Are the scholiasts conceiving of their work as a kind of ongoing engagement with each other and other readers of these texts? What is the intention and function of these remarks? Are we witnessing the early stages of other compositions?Footnote 85 Arethas' texts are particularly interesting for both their sharpness and their unique way of directly addressing the authors of the canons, a characteristic of his other scholia that has been noted.Footnote 86 However, in all cases we see a distinctly dialogical dimension emerging in the Byzantine reception of their legal texts, and one that is different from that found in the commentators.Footnote 87
On this literary note, we may turn finally to the ‘emphasis’ or highlighting scholia. Some of these, particularly the σημείωσαι notations, function as we might expect: they serve to highlight rules that the scholiast thinks are of particular interest or relevance. Sometimes these choices are intriguing. One tenth-century manuscript, for example, singles out two particular Apostolic canons as worthy of special σημείωσαι notation: Apostolic 59, commanding bishops and priests to care for the material needs of lower clergy, and Apostolic 77, permitting physically disabled people to ascend to the episcopate.Footnote 88 Another roughly contemporary manuscript, probably related to the former, ignores both of these but now highlights Apostolic 61, on sexual behaviour of potential clergy, and Apostolic 84, which forbids insulting the emperor.Footnote 89 Why the difference? Why were some canons of interest to one scholiast, and not to another? Perhaps an even more interesting example may be found in this same (latter) tenth-century manuscript, and appears to be unique among the earliest witnesses. Here Gangra, usually devoid of any notation, finds all of its canons relating to the denigration of marriage by ascetics carefully marked ‘ὅρα'. Did monastic extremism represent a particularly pressing issue for this scholiast?
Such questions are unlikely ever to find full resolution, but the potential of these markings to add a whole new layer of nuance to our understanding of the Byzantine reception of these texts — and perhaps occasionally illuminate the authors/audiences of these notes — is unmistakable.
The ὡραῖον marks may be even more fascinating. Some of these also highlight specific rules, but others have a very different function: they draw attention to turns of phrase or expressions that are worthy of note (and probably memory). An excellent example may be found in an annotation to the first canon of Serdica, which forbids the transfer of bishops from one see to another. The canon contains a sentence that is perhaps the only instance of sarcasm in the canonical corpus: ‘[bishops are forbidden to transfer from city to city] for no bishop has ever been found who has striven to be transferred from a greater city to a lesser'. This line is very frequently noted as ὡραῖον in the manuscripts! Such pithiness in the articulation of a rule's rationale seems to have often triggered an ὡραῖον notation. Trullo 83 forbids giving dead bodies the Eucharist, ‘for it is written, take, eat; but dead bodies are able neither to take nor to eat’ – this gets an ὡραῖον. Likewise noted as ὡραῖον is the phrase in Gennadios (forbidding simony) that explains: ‘For those who ordain are servants of the Spirit, not sellers of the Spirit.’ Numerous other examples await cataloguing. In all cases, the notations reveal a literary and aesthetic appreciation of the texts that is otherwise almost entirely invisible in the canonical tradition and is perhaps surprising in a legal context.
IV. Assessment
Byzantine manuscript scholia, penned by Byzantines, for Byzantines, may represent one of the final textual frontiers for Byzantine cultural history. Their special power lies in their very liminality: they seem to occupy a space between the formal and informal, public and private, written and oral. This allows them to add a truly different dimension to the study of a textual tradition: that is, they add a new level of nuance and granularity to our understanding of how the Byzantines received and ‘digested’ a textual tradition. Further, they do this by speaking in a register that is otherwise difficult to access. This raises the question of how many types of ‘voices’ a tradition contains — commentaries, letters, histories, treatises, scholia, documents, images, etc. — and how each one of them can be used to peer into different aspects of a cultural phenomenon.
Within the confines of the history of Byzantine law, the canonical scholia have a number of important implications. Some of the most dramatic are the simplest. Within the published scholia we can find a proto-commentator hiding in plain sight; and this commentator, as well as the numerous other scholiasts, adds a host of new substantive interpretations and opinions to the store-house of Byzantine legal doctrine. Scholarship will no doubt be occupied for some time in assessing and assimilating the significance of these ideas.
But the scholia also raise some subtler questions about Byzantine legal culture and practice. The broad overlap of the scholia with the forms of general literary exegesis points to a legal culture that functions in a more literary, rhetorical mode than modern legal sensibilities might otherwise expect.Footnote 90 Why would it be important, from a forensic perspective, to know where in the bible a certain quote comes from, or to draw attention to certain aesthetically or morally significant passages? This suggests a forensic practice that is more (explicitly) invested in extra-legal narratives than is typical in more familiar, formalist systems, and one that demanded a fairly broad cultural formation of its practitioners.
The dialogical, polemical and editorialising edge of some of the scholia also points to a more varied and lively (and broader?) canonical discourse than we might otherwise suspect. Here the instances of critique or subversion of the tradition are particularly interesting. How directly controvertible and malleable was the tradition? What exactly were the limits of interpretation?
