I recently reviewed David Dusenbury’s The Innocence of Pontius Pilate in my First Things column. It’s an enthralling book, a work of scholarly detection that maps out hidden pathways of European intellectual and legal history, the first book (so far as Dusenbury knows) to investigate debates about Pilate’s innocence in Christian, Jewish, Islamic, and pagan literature. It’s packed with authors and arguments of which I was completely ignorant. I’ve read and written on Dante, for instance, but had no clue about the commentary tradition that Dusenbury summarizes in chapter 15.

You can look at my column for a summary of the book’s main thesis and argument, but Dusenbury untangles many fascinating knots that didn’t get into the review. I’ll sum up a few here.

1. In the first chapter, Dusenbury presents a brilliant analysis of the Prologue to Justinian’s Institutes, an epoch-making text that “initiated countless generations of lawyers – and still initiates some – to the shape of Roman law” (7). The Prologue, Dusenbury contends, contains “a curious presence; an epochal absence; and a superlative irony.”

The “curious presence” is the reference to “Africans” in a list of peoples of the empire, a reminder that “the history of European law and politics cannot be written without reference to Africa” (10). Dusenbury follows up this suggestion by highlighting Augustine’s role in the debates about Jesus’ Roman trial.

The “epochal absence” occurs in the list of Justinian’s imperial titles. Like emperors before him, Justinian is “Devout, Fortunate, Renowned, Victorious and Triumphant, Forever Augustus”; unlike pagan emperors, he is not “Pontifex Maximus” – supreme priest. By the fifth century, that imperial title had been claimed by the Bishop of Rome. The migration of “pontifex maximus” from emperor to Pope is “one of the sharpest signs of the difference between Christian Rome and pre-Christian Rome” and a signal of the division of “sacred” and “secular” that marks European legal traditions (11).  

The “supreme irony” is the Prologue’s opening invocation, “In the name of our Lord Jesus Christ.” We’re apt to skim over it, since it’s the kind of de rigueur rhetoric we expect from a Christian emperor. Dusenbury thinks it’s astonishing, and rightly so: “Justinian inscribes, at the head of his foyer-text to his monumental code of Roman law . . . as a sanctifying and legitimating figure, the name of a man who was crucified by a Roman judge as a Roman convict” (12). In the Christian empire, Roman law is re-founded on the basis of “the court-ordered execution of an innocent man who claims to be a witness to the truth” (12). Dusenbury unfortunately doesn’t return to this irony, but the invocation of Jesus is at least a standing rebuke to any pretense that Roman law, or any law, automatically secures justice.

2. Thomas Hobbes cites Jesus’ trial as justification for the absorption of religious authority into Leviathan. Jesus is innocent, Hobbes argues, because “the Kingdom he claimed was to be in another world,” so “how then could his words, or actions be seditious, or tend to the overthrow of their then Civil Government.” Hobbes is manically logical: If the kingdom is of another world, then the church, which exists in this world, cannot be the kingdom of Christ. In fact, to hold that the church is Christ’s kingdom is, Hobbes says, to betray Christ (205). It’s an impudent act of jiu jitsu: The heretic Thomas Hobbes condemns the majority Christian tradition as a heterodox defection from Jesus.

3. “Secularization” is a coinage of medieval canon law, but it became a “regime-defining term” (115) during the seventeenth century. Initially, the term retains its original legal meaning. Johann Baumgart defined it in his 1693 treatise On Secularization as the process of making “something that belongs to the church into something that belongs to this age.” Eric Mauritius’s 1666 book describes the flip side of secularization, “incorporation,” as the “gain made by the state or secular economy that expropriates the church’s holdings” (226-7).

Secularization in this sense can be voluntary: The church might cede property back to the saeculum, the world. Often, though, early modern secularization was an illegal confiscation of church property that annulled “the last will and intention” of thousands of Christians who gave their lands to be “perpetual holdings of the church” (Baumgart, quoted 226).

Legal pretexts had to be found to justify it. Entire monasteries were sometimes charged with the capital crimes of treason or idolatry. Once they were convicted, someone – usually a king – claimed their property (227). More often, the legal stratagems were more general. “None of this controversy over the power of political magistrates to secularize church holdings,” wrote Bernhard Pagendarm in 1707, “can be defined by Justinian’s civil law, or by canon law” – that is, by the two major European legal traditions (quoted 228). Secularization was defined and justified by “the law of nature” (quoted 228), which trumped actually existing legal institutions.

Though secularization has a fairly narrow meaning during this period, the seeds of the broader trend of secularization were already being planted. After all, if the state claims the right to seize and redistribute lands belonging to the church, it’s already classified the church as an institution under state jurisdiction. Henry VIII could dissolve monasteries only on the pretext that he was head of the church of England. Secularization in the broad sense depends on secularization in the narrow sense. Secular order rests on a massive theft of church property, not to mention church authority.