A Rhetorician Practices Law: Michael Psellos (George T. Dennis)

Many of us tend to look upon the people we call Byzantines as very formal and rigid. We read of their

stately processions, their unbending orthodoxy, their unchanging liturgy, their zombie-like imitation of

classical models, and, in all spheres of life, their unswerving adherence to the authority of the ancients.

Yet, as recent research has made abundantly clear, the Byzantines could be very practical, flexible,

adaptable, and creative. This holds true even in that most conservative of disciplines, law. The Byzantines

inherited a vast corpus of law from antiquity; they copied it, codified it, summarized it; they revised old

laws and promulgated new ones. As all this accumulated over the centuries, the law stood there, a solid

block of prescriptions and procedures. Formidable and rigid though it might appear, the law was

interpreted and applied, as we now know, with a great deal of flexibility. It is unfortunate that while large

collections of laws are extant, very few sources concerning their application have been preserved. What I

propose here is to see how one jurist, if we may call him that, practiced law.

Jurist, of course, is not the correct word. Michael Psellos regarded himself first and foremost as a

philosopher, and gloried in the title, "Consul of the Philosophers." He regarded philosophy as crowning

and embracing all branches of knowledge, with two of which, rhetoric and jurisprudence, it has a special

relationship. Philosophy and rhetoric both need and depend on one another. Legal science also depends

on philosophy at every turn and has appropriated to itself its methods of investigation. Both relate the

particular to the universal. Legal science finds the universal idea of law in individual cases; it refers

individual cases to universal principles and finds a solution there. Psellos examines this relationship in his

funeral oration for John Xiphilinos, his own instructor in the law. According to Psellos, Xiphilinos was

primarily concerned with the science of law; he traced its roots back and found them in philosophy. He

ennobled juridical science by introducing rhetoric into it, subjected it to philosophy and made it the

ornament of both.

Psellos was primarily interested in philosophy and the more theoretical aspects of knowledge. Many

people, so he tells us, were putting pressure on him to practice medicine, while others wanted him to turn

to law. But he replied that his medical interests were limited to theory, and he did not want to get bogged

down in individual cases. It was the same with law. He was interested in the reasoning behind the law, but

he did not want to devote his time and energy to tedious demonstrations, dowries, degrees of kinship,

inheritance, legitimate and illegitimate children, and, not least, people who had been kicked by horses,

gored by cows, or bitten by dogs. Yet, like other teachers, then and now, he was called upon to provide

instruction in branches of knowledge other than those in which he was primarily interested. Philosophy

was what he would have liked to concentrate on. And he was disappointed that some of his most

promising students were more enthusiastic about practical subjects, such as rhetoric and law, and did not

want to accompany him on his ascent to the sublime heights of philosophy. Anastasios, for example, had

acquired outstanding skill in rhetoric and then went on to study law, which was "necessary for those in

public life." Romanos eschewed philosophy, "but loved the art of speech and developed wonderful

eloquence, which he believed was the best preparation for instruction in law." Another simply "tasted"

philosophy but attained great proficiency in rhetoric, "and then turned to the laws and the Italian

language" as the prerequisite for a public career.

Let us turn first to rhetoric. Psellos unabashedly tells us of his own proficiency as a rhetorician, a claim

readily admitted by others. Skylitzes noted that for the power of his eloquence Psellos was "beyond

comparison." Such sentiments were echoed by Anna Komnene and by the author of the Timarion. While

he might have relished the title of philosopher more, his profession was really that of a rhetorician. He

formulated official pronouncements and delivered formal orations on a great variety of occasions,

probably thousands of them, but very few have survived, a fact which the modem scholar views with

mixed emotions.

He studied law, the "wisdom of the Italians," as he often called it, under the direction of Xiphilinos, who,

in 1046-47, would be named to head the newly established school of law in Constantinople. He

considered himself something of a legal expert, but it is not clear how profoundly he had studied the

subject. Certainly, some, perhaps most, of his legal education was acquired from practice: he began at the

age of sixteen as assistant to a judge in Thrace and Macedonia and later to one in Anatolia, then became a

judge himself in the provinces. In his letters he refers to decisions he had made, but tells us very little

about them. He also taught law, largely, it would seem, because his students insisted on it, rather than

because of any particular interest of his own. He composed notes or aids for his students, aimed mostly at

clarifying Latin terminology. These included the Synopsis of Law in verse, which he prepared for the

emperor Michael VII.l1 Whether or not he read widely in the law, he certainly knew the collections and

the vocabulary, and he also spoke in court and prepared legal documents.

Thus we have Psellos, rhetorician and jurist, orator and lawyer. Can we judge his accomplishments in

these spheres? Herbert Hunger, in his history of Byzantine literature, declares his encomiastic speeches to

be among the weakest of his works. Peter Pieler, who wrote the chapters on law in the same volume,

evaluates the juridical worth of his writings as not being very high. Despite such harsh verdicts, however,

which I would not want to contest, it might be instructive to look at Psellos the rhetorician as he involved

himself with the law. In particular, I would like to look at the manner in which he dealt with several quite

different cases. We must, though, bear in mind that the documents we have are not modem transcripts of

court proceedings, and their legal validity and force are not at all clear. Our concern will be not with his

rhetorical tricks or even the content of the works, but with his methodology.

The first is his Accusation against the patriarch Michael Keroularios, composed in 1059 at the request of

Emperor Isaac Komnenos. It was never delivered, for the patriarch died before he was scheduled to

appear before the synod. (It would, incidentally, have taken about nine hours to recite.) One may note that

only four years later Psellos composed an epitaph full of effusive praise for the same patriarch. The

Accusation is more of a political pamphlet than a prosecutor's statement, more in the tradition of the

Byzantine psogos than a lawyer's speech in court. Still, it was intended to be presented before the synod,

although surely not in the form in which it has come down to us. Throughout the speech Psellos employs

his rhetorical skills to the fullest: apostrophes, exclamations, expressions of shock and outrage,

personifications, plays on words, prose rhythm, and the like. But this is not what concerns us here. How

does he argue the case? He begins by listing the charges against the prelate: impiety (heresy), tyranny,

murder, sacrilege, and unworthiness. These are serious charges. How does he attempt to prove them?

Psellos accuses Keroularios of impiety on the grounds that he protected, or at least was negligent in

condemning, two monks from Chios, Niketas and John, and a visionary named Dosithea. They roamed

about, so Psellos declares, spreading pagan practices and heretical doctrines. There is much talk of

Bacchic frenzies and Delphic oracles, of Mithra and Apollo, but not much about Scripture or the Fathers

of the Church or theology. Dosithea and the two monks-and implicitly the patriarch-are accused of

Hellenism, the cult of the ancient Greek divinities. They are then accused of involving themselves in the

occult, that is, the mysteries of the Chaldeans and the teachings of Proklos. Psellos delights in explaining

at some length those teachings, about which he had written so much and which he knew and admired so

well. At the same time, with masterful subtlety he disassociates himself from those doctrines and depicts

the patriarch as being taken in by them. More by exclamations of horror than by theological reasoning, he

also accuses the visionary and her accomplices of Nestorianism. The essence of his accusation is this:

since the patriarch did not take action against the visionaries and their heresies, he must have believed in

them himself. In all this Psellos provides no real proof. Since the patriarch's guilt is so obvious, his heresy

so monstrous, Psellos has not even bothered to cite the laws, civil or ecclesiastical, in any detail, but

contents himself with reminding the audience of those statutes that condemn heresy. Although he claims

to have avoided the use of rhetorical arts of persuasion, it is clear that that is exactly what he has made use

of.

Tyranny is defined as being contemptuous of the laws and making oneself emperor. Psellos charges that

this is precisely what the patriarch intended to do by forcing Michael VI to abdicate and then by stirring

up resistance to the entry of Isaac Komnenos into the city. But, apart from one citation from the canons of

the Apostles, Psellos' proof consists of a lengthy, rhetorical assertion that Keroularios' tyranny was

obvious and witnessed by all.

The destruction of the Church of St. Andrew and the violation of graves furnish grounds for the

accusation of sacrilege. With evident exaggeration Psellos describes his shock and outrage at the

patriarch's actions, but presents no proof.

Finally, Psellos examines the character of Keroularios and his checkered past, and finds him unworthy of

the priesthood. But, again, his speech consists simply of denunciations with much rhetoric and no proof.

He decries the patriarch's arrogance in dealing with both clergy and laity. He excoriates him for his

ignorance of theology and his interest in occult sciences, especially alchemy. Psellos readily admits his

own familiarity with the subject and, in fact, he had written in some detail to Keroularios about the

making of gold.

This long Accusation, then, while very strong on rhetoric, provides very little evidence of any legal

expertise. But it does show the lengths to which Psellos would go in order to please the emperor.

Sometime in the years between 1043 and 1050, Psellos composed the speech with which Lazarus,

metropolitan of Philippopolis (Plovdiv), defended himself in an ecclesiastical trial. Lazarus, for reasons

which are not clear, had been deposed by the synod, but the emperor commuted the sentence to exile. He

was recalled by Constantine Monomachos at the time of his coronation (12 June 1042). But a conflict

with some officials, apparently over finances, brought him before the synod again, and, to his surprise, he

found himself accused of slandering the emperor. While the bishops took his side, the emperor sent him

into exile again, but soon relented and allowed him to return. This time the bishops, including the

patriarch, turned against Lazarus and insisted that the first sentence of deposition was still in force. They

likened deposition to decapitation, an action so definitive that the emperor could not commute it, and thus

Lazarus could not be restored to his see. The defense, written by Psellos, set out to prove that Lazarus was

innocent of all charges, and specifically that the sentence of deposition had no effect. If he had been truly

deposed, that is, considered as beheaded, using his opponents' metaphor, then it would have made no

sense to send him, a dead man, without a head, off to exile. By banishing him, then, the emperor

considered him to be still alive and not deposed. Therefore, he was still the lawful metropolitan of

Plovdiv.

In his presentation Psellos refers to the canons in general and to a few canons in particular, but he places

much greater emphasis on the role of the emperor in making the final decision. His speech is dominated

by rhetoric, with Lazarus loudly bewailing the injustices he has suffered, and by dialectical reasoning. At

some length he very cleverly turns the metaphor of decapitation introduced by his adversaries back on

them, and by his argumentation makes his case.

In another oration he comes to the defense of the nomophylax, that is, John Xiphilinos, who had been

attacked by a retired judge named Ophrydas. Psellos claims, not without reason, that the real adversary is

not "that little old man:' Ophrydas, but that he has launched his attack on behalf of someone else, a more

powerful and prominent person, perhaps an unsuccessful candidate for the position of nomophylax. While

the speech and its background must have been very clear to contemporaries, it is much less so to us. In

any event, Psellos refutes the accusations brought against the nomophylax by adducing several examples

from classical antiquity: Plato, Aristides, Pericles, and others. He demonstrates that Xiphilinos, although

unnamed, is eminently qualified for the position, much more so than his critic. By attacking the

nomophylax, the critic must bear in mind that he is also attacking the emperor who had appointed him.

The attacker had made use of a syllogism to destroy the credibility of the nomophylax, and Psellos

responds to this with a long, drawn out syllogism of his own. In all this no law is cited or referred to. The

argumentation is entirely dialectical and rhetorical, and with an eye toward the emperor.

In August 1056, a decision was rendered by a tribunal appointed by the empress Theodora concerning the

vestarch Michael, clearly Psellos himself; at any rate, it was Psellos who drew up a memorandum,

supposedly emanating from the court, which gave an account of the case. The vestarch Michael had

betrothed his adopted daughter, still a child, to Elpidios, twice her age. Included in her dowry was a grant

of the title protospatharios, estimated to be worth twenty pounds of gold. Elpidios, however, led such a

scandalous life that the vestarch requested the empress to dissolve the betrothal. She did so and delegated

a special tribunal to decide on other details of the contract. The vestarch insisted that Elpidios reimburse

him for the expense of the protos pathariate, twenty pounds. The judges, in turn, ordered the vestarch to

pay the indemnity for breach of contract, which came to fifteen pounds, and then had him pay another

five pounds so that everything would come out even. The judgment in this case was simply a matter of

arbitration. The style of the document which is dominated by praise for Theodora, is flowery; the

exposition is clear' and well arranged, although much space is given to insignificant details. But the

juridical side of the process is glossed over, and it is clear that the decision could have been arrived at by

a person without any legal training.

In another case, dated to March 1049, it is not clear whether Psellos was the judge or simply the recorder

of the case. In virtue of a chrysobull issued by Basil II to his grandparents, the protospatharios John

Iventzes claimed ownership of a suburban property named Vivarion, which was actually occupied by the

manglabites Basil. Psellos, incidentally, notes that Iveritzes' speech was so rustic that it was totally

unacceptable in a tribunal and had to be put into correct Greek, atticized, before the case could be heard.

Basil the manglabites, in rebuttal, asserted that the land had been granted to his grandfather. The very

complicated history of ownership and some corresponding documents were discussed at length.

Witnesses were called to testify. Iveritzes took to shouting and causing a disturbance in the courtroom.

Finally, the judge ordered both men to swear oaths attesting to the authenticity of their documents and

their claims. The manglabites did so, but Iveritzes kept shifting from one leg to the other. The judge then

decided in favor of the manglabites. This case was primarily a matter of arbitration and presenting of

proof. Not much specialized legal knowledge was required to arrive at a decision, and there was very little

reference to the laws. .

The last case I would like to consider is of a much different sort, and is much more complicated, for it

involves laws which transcend those of the state, and indeed those of nature, and the case is decided, not

by a judge or even by the emperor, but by the Blessed Virgin, the Theotokos. The Church of Our Lady at

Blachernai possessed a much-venerated icon of Mary with the Christ child. It was located on the wall on

the right side of the church as one enters facing east. A silk veil covered with sacred images hung in front

of the icon. On Friday after sunset all the people had to leave the church and the doors were shut. Special

services were then performed and prayers recited. Then the doors were opened and everyone entered with

fear mingled with joy. Suddenly the veil before the Icon was lifted up, as though the wind were blowing

on it from below. On occasion it would hang in the air for a while. On some Fridays though, the veil did

not move. Anna Komnene relates one such occasion, in November 1107, when her father was leaving on

an expedition against the Normans. The "accustomed miracle" did not take place; Alexios waited a few

days and then, after lengthy prayers, the veil raised itself in front of the icon and the imperial army

marched out full of confidence. It could also occur on other days. The event was clearly regarded as

miraculous and a sign of the presence of Mary in her city.

A dispute arose over water rights and a mill on a stream in Thrace between the strategos Leo Mandalos

on the one hand and the monastery of Kallios on the other. The case was bounced back and forth in the

courts, ownership being awarded first to one party and then to the other. Finally, a judge in Thrace

Gabriel Tzirithon, like Solomon, divided the ownership in half, but this satisfied neither side. They

continued to argue over the ownership of the property, but neither party wanted to go back to court. They

then agreed upon a unique solution. They would ask the Mother of God to decide. At dawn they gathered

In front of the Icon in Blachernai holding the documents supporting their positions in their hands. They

prayed, wept, and called upon Mary to give her decision. If the veil before the icon should not move, then

the monks would have dominion over the property, but if the veil should be lifted up, then it would be

awarded to the strategos. Psellos could not help but note that the monks arranged to have the odds on

their side. A long time went by without any movement of the veil. According to Psellos, the monks began

cheering, clapping their hands, and laughing, while the strategos looked as though he had just lost a

battle. At the last moment, though, the veil was raised above the icon and hung there in mid-air.

At first the monks tried to claim that they had won, since the veil had remained unmoved for so long a

time, but they soon had to admit defeat. Psellos devotes the rest of this document to proving that this was

an authentic miracle, comparable to the sun standing still for Joshua at Gabaon. It was a definitive

decision in the case with all the effects of a civil or imperial verdict, and it allowed no appeal. He began

his proof, not by referring to imperial law or to theological reasoning, but, at some length, by citing

examples from pagan antiquity. He contrasted this supernatural intervention with those of the oracles at

Dodone, Pythia, and elsewhere. He also recalled auguries taken from various animals and other such

practices, not to mention examples of the occult and demonic action. While admitting the reality of all

these, he showed that they were enigmatic and incomplete. How much more was the immaculate Virgin

to be believed, especially since there was no room for any ambiguity; either the veil was moved or it was

not moved. He also made use of some Old Testament examples, and of legends about ancient personages

such as Darius and Romulus.

The emperor, Michael VII Doukas, took a special interest in the miracle, of which he had been an

eyewitness, and he asked Psellos to compose a complete account of it, and to do so within three days.

Psellos went on to explain the provision in Byzantine law for special judges, agreed upon by the parties

concerned, in certain circumstances. In this case the special judge was the Theotokos, chosen by the

disputants. While civil judges can make mistakes, the Theotokos cannot. If the two parties had agreed

upon a throw of the dice, hurling the discus a certain distance, a race; or a wrestling match, they would

have had to abide by the result. So much more so in this instance. Divine signs can manifest themselves in

various ways: sweat pours from icons or statues, footprints or figures of beasts appear on the pavement or

on the walls,. strange sounds are heard in the air or in wells, meteorites are seen. Higher elements

influence lower ones, and so Mary influences the cloth of the veil.

The documents were drawn up in what was designated as both a spiritual and civil format, presented to

the strategos, and dated to July 1075. Psellos calls his report both a legal document and a panegyric.

Document in hand, the strategos prostrated himself in thanksgiving before the icon and, in a solemn seal

of approval, the veil raised itself up again.

This brief look at Psellos engaged in judicial activity clearly supports the view that Byzantine legal

practice was anything but rigid. Decisions were based on criteria other than the laws. A judge did not

need much of a legal education. He saw himself, as Psellos certainly did, primarily as an appointee of the

emperor and answerable to him, and in the courtroom he viewed his role as an arbitrator and relied on his

own morality and what we would call common sense. Although he knew and taught law, Psellos rarely

refers to it in the cases he argues or judges. His arguments and decisions are bolstered by personal and

ethical considerations, logic, comparison with the occult or with pagan oracles and marvels, his own

religious views, a sense of fair play, and, above all, what would please the emperor. While Psellos

claimed to love philosophy above all else, his philosophy was strongly colored by his rhetoric, and when

it came to practicing law, it is clear that he remained an irredeemable rhetorician.