1 Permission to Circumcise Sons Bom to Jewish Parents

Modestin on a Rescript of Antoninus Pius

ca. 138-155

A Digest quotation (Dig. 48:8:11) from a passage in the Rules (Book VI) of Modestin, in which that jurist discussed the rights of masters over their slaves.

He referred in this context to a rescript of Antoninus Pius which permitted the Jews to circumcise only their sons, and stated that circumcision of non-Jews was punishable. As the entire passage dealt with slaves it seems that Modestin referred here to circumcision of slaves by their Jewish owners, although his terminology indicates an interdiction of a general scope not limited to slaves. Solazzi suggested accordingly a textual emendation that would restrict the tenor of this passage to slaves alone, but such an emendation is unwarranted. Hadrian’s general interdiction of circumcision was probably imposed in the late twenties and before 132, although some historians postdate it to the outbreak of the Bar-Kokhba revolt. At least three attempts by Sages sent to Rome to obtain its repeal are documented in the Jewish sources. These embassies cannot be dated to the first years of Antoninus Pius’ reign (shortly after 138), contrary to Smallwood’s opinion, for the Sages mentioned as members of these missions had not attained positions of authority by that time. We learn from Justin Martyr’s Dialogue with Trypho, on the other hand, that at the time it was composed, ca. 155, circumcision of Jews was considered legal and subject to no interdiction throughout the Empire. Hadrian’s general interdiction was consequently repealed, at least in regard to the Jews, before ca. 155, probably through Antoninus Pius’ rescript referred to by Modestin. Similar exceptions from the general interdiction were probably granted at the same time to the Egyptian priests.

The earliest extant document authorizing Egyptian priests to circumcise date, in effect, from 154. A different interpretation of this rescript was suggested by J. Geiger, who maintains that it should be seen as a restriction imposed on a previously unlimited freedom to circumcise rather than as a partial repeal of the Hadrianic interdiction.

Modestin’s authority during his lifetime as a jurist with a ‘jus respondendi’ as well as after his death, according to the Law of Citation from 426, assured the authoritative character of his interpretation of this rescript. It was finally secured with the reception of this passage in the Digest. Several sources testify to the practical application of the permission granted in that rescript by the beginning of the 150s. Apart from the evidence of the Dialogue with Trypho, we have the explicit testimony of Bardesanes, who stated that the Jews circumcise their sons wherever they are domiciled.^{^[I]}Origen, again, emphasizes that the law permitted only the Jews to practice circumcision, while circumcising Samaritans broke the law and ran the risk of prosecution under the Lex Cornelia de sicariis.²The interdiction on circumcision of non-Jews referred to in the same rescript, on the other hand, was not adequately enforced, since the government had to reissue it in 202,³ and several times since the fourth century (see below, Nos. 10, 11, 41, and 48). Third century halachic regulations reflected this situation of only a partial and unsuccessful application.⁴

Digesta, 48:8:11, ed. Mommsen & Krüger, p. 853

Modestinus* libro sexto regularum*

Circumcidere ludaeis filios suos tantum rescripto divi Pii permittitur: in non eiusdem religionis* qui hoc fecerit, castrantis poena* irrogatur.

Modestin,⁵ The Rules,⁶ Book VI

Jews are permitted to circumcise only their sons on the authority of a rescript of the Divine Pius; if anyone shall commit it on one who is not of the same religion,⁷ he shall suffer the punishment of a castrator.⁸

NOTES

See ABBREVIATIONS at the beginning of this book and the individual bibliographies for complete publication information for works not cited in full in the notes.

1 Permission to Circumcise Sons

2. See Κατά Κέλσου, 11:13, ed.

P. Koetschau, GCS, II, 1899, p. 142. On the sicarii see below, note 8.

3. Septimius Severus prohibited proselytism and conversion to Christianity, according to Scriptores Historiae Augustae: Severus, 17:1, ed. E. Hohl, Leipzig 1955, p. 149. On the credibility of this information see R. Freudenberger, “Das angebliche Christenedikt des Septimius Severus,” Wiener Studien, NS, II (1968), pp. 206-217; P. Keresztes, “The Emperor Septimius Severus—A Precursor of Decius,” Historia, XIX (1970), pp. 565-578; J. Speigl, “Die Christenpolitik des Septimius Severus,” Münchener theologische Zeitschrift, XX (1969), pp. 181-194.

4. See E. E. Urbach, “Halakhot Regarding Slavery as a Source for the Social History of the Second Temple and the Talmudic Period,” Zion, XXV (1960), pp. 141-189 (in Hebrew).

5. (Herennius) Modestin was one of the foremost classical jurists, studied under Ulpian and occupied important posts in the Imperial administration during the third and fourth decades of the third century. He was a prolific writer on juridical subjects, particularly in 217-222, was recognized as having a ‘ius respondendi’ in his lifetime, and was one of the five jurists declared to have a superior juridical authority according to the Law of Citation of 426. See A. Μ. Нопогб, “The Severan Lawyers—A Preliminary Survey,” SDHI, XXVIII (1962), pp. 162-232.

6. The Rules was written by Modestin after Caracalla’s death. Honore believes that it was written under Elagabalus (218-222, see above, note 5), while Brassloff dates it to the reign of Alexander Severus (222-235).

See S. Brassloff, PW, 1:15, 1911, s.v. Herennius, Cols. 668-675; Browe, p. Ill n. 11. This genre of juridical literature dealt with the general, abstract principles of the law. The extant fragments of works of this type prove, however, that the authors did not always limit themselves to generalities and abstraction, but offered also detailed descriptions of the law in force.

7. The term ‘religio’ appears here in its most general meaning, i.e., the complex of religious beliefs and practices peculiar to any nation. The Jewish nation was described by Tertullian in 197 as a ‘religio licita’, a lawful religion. See Apologeticum, XXI: 1, ed. E. Dekkers, CCSL, I, 1954, p. 122. See also Μ. Kobbert, PW, 11:1, 1914, s.v. Religio, Cols. 565-575; G. Lieberg, “Considerazioni sull’etimologia e sui significatio di ‘Religio’,” Rivista di filologia, СП (1974), pp. 34-57; I. Baer, “Israel, the Christian Church and the Roman Empire from the Time of S. Severus to the Edict of Toleration of a.d. 313,” Scripta Hierosolymitana, VII, 1961, p. 86 η. 21; Juster, I, pp. 246, 423 n. 8.

8. The assimilation of circumcision to castration was a common theme in the antisemitic literature of the Greco-Roman world. See, for example, Juvenal, Satura, XIV: 104; Martial, Epigrammata, VII:82:6; XI:94. It is also hinted in the Christian polemic literature. See P. Debouxhtay, “Le sens de άποκόπτομαι,” Revue des ttudes grecques, XXXIX (1926), pp. 323-326. This assimilation acquired very real implications once defined in legal terms, for castration was explicitly forbidden by law. Castration of slaves was forbidden by Domitian, and again in 97 by Nerva, who imposed on castrators the punishments applied in the framework of the Lex Cornelia de sicariis.

See A. Garzetti, “Nerviana,” Aevum, XXVII (1953), pp. 549-553; R. Syme, JRS, XLIII (1953), pp. 148-161. Hadrian cited this law

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(constitutum est) when he enlarged its scope, in a rescript quoted by Ulpian (Dig. 48:8:4:2), to include any sort of castration, of slaves and of freemen, forced as well as voluntary. The jurist Marcian wrote, in the beginning of the third century, that at that time criminals convicted under this law who belonged to the class of the ‘honestiores’ were punished by banishment to an island and confiscation of all their property, while the ‘humiliores’ were executed. He added that formerly all were punished by banishment to an island and the confiscation of their property (Dig. 48:8:3:5:). Hadrian’s legislation against castration led, undoubtedly, to his legislation against circumcision. Numerous Jewish sources, as well as an account of Origen on circumcision among the Samaritans, designated those guilty of breaking the law against circumcision as ‘sicaricon’, ‘sicarii’, an obvious reference to the law applied in the prosecution of this crime, the Lex Cornelia de sicariis et veneficis. See

S. Safrai, “Sikarikon,” Zion, XVII (1952), pp. 56-64 (in Hebrew); Sperber, pp. 120-121.

BIBLIOGRAPHY

Lenel, I: Modestinus, No. 230, Col. 736; G. Foucart, “Rescrit d’Antonin relatif £ la circoncision et son application en Egypte,” Journal des savants, 1911, pp. 5-14; Juster, I, pp. 265-271; Browe, p. Ill; Solazzi, “Fra Norme,” pp. 396397; J. Schwartz, “Sur une demande de prdtres de SocnopSonfcse,” Annales du Service des Antiques de iEgypte, XLIV (1944), pp. 235-242; Colorni, Gli Ebrei, p. 3; A. Dell’Oro, I libri de officio nella giurisprudenzia romana, Milan 1960, p. Ill; M. Smallwood, “The Legislation of Hadrian and Antoninus Pius against Circumcision,” Latomus, XVIII (1959), pp. 334-347; X (1961), pp. 93-96; E. Levy, “Rehabilitierung einiger Paulussentenzen,” SDHI, XXXI (1965), pp. 1-14; H. Mantel, “The Causes of the Bar Kokba Revolt,” JQR, LVIII (1967/68), pp. 224242, 274-296; M. D. Heer, “Persecution and Martyrdom in Hadrian’s Days,” Scripta Hierosolymitana, XXIII, 1972, pp. 93-102; Linder, pp. 127-129; Avi-Yo- nah, pp. 45-46; J. Geiger, “The Ban on Circumcision and the Bar-Kokhba Revolt,” Zion, XLI (1976), pp. 139-147 (in Hebrew); Rabello, “Tribute,” p. 223 n. 33; Langenfeld, pp. 44-50; A. M. Rabello, “11 problema della ‘circumcisio’ in diritto romano fino ad Antonino Pio,” Studi in onore di Arnaldo Biscardi, II, Milan 1982, pp. 187-214; Alon, Jews, II, pp. 646-648, 650-656.

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Source: Linder A.. The Jews in Roman imperial legislation. Wayne State University Press,1987. — 437 p.. 1987

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