6 Prohibition of Circumcision of Gentiles
Paul
End of the Third Century
This description of the legal position on circumcision has been transmitted in The Sentences, attributed to the jurist Paul.
This book was probably completed before 300, and it reflects, therefore, legal conditions about the end of the third century. Only a small number of passages in this book derive from legal circumstances later than the reign of Diocletian.1 All of Paul’s works were declared by Constantine (in 328) to possess legal authority (CTh 1:4:2), and his Sentences was specifically designated as such in the Citation Law of 426 (CTh 1:4:3). It became one of the major sources of Roman Law in Western Europe, and retained this position throughout the early Middle Ages.2 De Dominicis identified our passage as post-Classical, for he believed that it reflected the legal reality created by the prohibition on circumcision decreed in 339 (CTh 16:9:2). Levy, on the contrary, saw it as entirely consistent with Modestin’s testimony on this subject, and therefore as conforming to Classical law.Paul stated that only Jews by origin were allowed to circumcise. Particularly harsh punishments were to be inflicted on gentiles circumcised out of their own free will, on Jews circumcising their gentile slaves, and on doctors performing a prohibited circumcision. The similarity between these measures and those recorded by Modestin (see above, No. 1) indicates that the legal position of the authorities in regard to circumcision had not evolved until the beginning of the third century.
Paulus, Sententiae, 5:22:3-4, ed. Baviera, II, Florence 1940, p. 407
3. Cives Romani,* qui se ludaico ritu* uel servos suos circumcidi patiuntur, bonis ademptis in insulam perpetuo relegantur:* medici* capite puniuntur.
4. ludaei si alienae nationis comparatos servos circumciderint, aut deportantur* aut capite puniuntur.*Roman citizens,3 who suffer that they themselves or their slaves be circumcised in accordance with the Jewish custom,4 are exiled perpetually to an island5 and their property confiscated; the doctors6 suffer capital punishment. If Jews shall circumcise purchased slaves of another nation, they shall be banished7 or suffer capital punishment.8
NOTES
1. See E. Levy, Pauli Sententiae—A Palingenesia of the Opening Titles as a Specimen of Research in West Roman Vulgar Law, Ithaca 1945; idem, “Paulus und der Sentenzenverfasser,” ZSSRG, RA, L (1930), pp. 272-294.
2. See E. Levy, “The Vulgarization of Roman Law in the Early Middle Ages as Illustrated by Successive Versions of Pauli Sententiae,” BIDR, NS, XIVXV (1951), pp. 222-258.
3. Roman citizens: this formulation seems to indicate that the Jews were not considered as Roman citizens. Meyer even deduced from this text that Paul considered the “Jewish custom” (ritus iudaicus) to stand in complete opposition to the Roman citizenship. See R. Μ. Meyer, “Zur constitutio Antoniniana,” ZSSRG, RA, XLVI (1926), p. 265. The common opinion among historians today, however, is that the Jews were included in the population that was granted citizenship by Caracalla in 212. See Rabello, “Tribute,” pp. 231-233. For a general survey of research on this subject see C. Sasse, “Literaturübersicht zur Constitutio Antoniniana,” Journal of Juristic Papyrology, XIV (1962), pp. 109-149; XV (1965), pp.
329-366; and more recently H. Wolff, Die Constitutio Antoniniana und Papyrus Gissensis 40 I, Cologne 1976, pp. 272-277, particularly p. 491 n. 628; and B. Holtheide, Römische Bürgerrechtspolitik und römische Neubürger in der Provinz Asia, Freiburg 1983, pp. 115-130. This opposition poses no problem to Colomi, who dates the Sentences to a period prior to 212. One should, however, distinguish between the two paragraphs which constitute this passage. Both are concerned with non-Jews undergoing circumcision, but Paul clearly distinguished between freemen, who had enjoyed Roman Citizenship after 212 (paragraph No. 3), and slaves (paragraph No. 4). The term “Roman citizens” is employed here as a synonym to “freemen” and in contrast with “slaves” rather than with “the Jewish custom.” See, in this connection, Constantine’s law from 321 on the manumission of slaves in a church and the granting of citizenship which accompanied it, also the commentary to this law in the Breviarium (CJ 4:7:1 = Brev. 4:7:1).4. Jewish custom: the term ‘ritus’ is employed here in its basic meaning of a heritage peculiar to a group or a people, rather than in its more limited sense of a cult or religious rite. On the evolution of this term and its use in ‘Romano ritu’ and ‘Graeco ritu’, consult K. H. Roloff, “Ritus,” Glotta, XXXIII (1954), pp. 36-65. The more general meaning reappears in the title given by the editors of the Digest to the chapter dealing with marriage—‘De ritu nuptiarum’ (Dig. 23:2). This chapter dealt, in effect, with marriage in general, rather than with the restricted subject of the marriage ceremony.
5. Exile (relegatio) was less severe than banishment (deportatio), for the exiled retained his Roman citizenship, the right to leave his property in testament, etc.
Furthermore, exile was occasionally inflicted for a limited period only. Our text indicates, therefore, that the punishment decreed against those condemned for circumcision—perpetual exile—was particularly harsh. Confiscation, again, was not customary in exile, and its infliction here should be seen as a further aggravation of the punishment. See U. Brasiello, “Pena,” Novissimo Digesto Italiano, XII (1965), Col. 812; V. de Villa, “Exilium perpetuum,” Studi Albertario, I, Milan 1953, pp. 293-314.6. Capital punishment was to be inflicted on castrating doctors according to Hadrian’s rescript on castration (Dig. 48:8:4:2). Justinus Martyr recorded that this punishment was effectively carried out in Egypt, 'Απολογία υπέρ Χριστιανών, ed. J. C. T. Otto, 1:29, PG, VI, Col. 373.
7. Banishment (deportatio) was known in Roman penal law since the time of Tiberius. It gradually acquired the typical elements of the traditional punishment of “prohibition of water and fire” (interdictio aquae et ignis), until it finally replaced it under the Seven. Banishment was harsher than exile, for the banished lost both citizenship and property, was usually sent in perpetual banishment to an island, and was liable to suffer capital punishment if he escaped from his place of banishment. In Roman penal law it was closest to the death penalty. Jewish sources distinguished between banishment and exile, reserving to the first the term ΓΡΊ03Κ (from the Greek έξορία; and compare the use of this term below, No. 66, and by Athanasius in 'Απολογία περί της φυγής αυτού, 8, ed.
Β. Montfaucon, PG, XXV, Col. 656, and by Gregory of Nyssa, Εις τον Βασίλειον, ed. J. Gretser, PG, XLVI, Col. 797), and to the second the term “ΠΊϋ. See Levit. R. 18:5: “R. Yehoshua of Sahnin in the name of R. Levi: a man of flesh and blood imposes exoria, and... (God) imposes exoria, for it was said ‘Command the children of Israel that they send out of the camp’ (Num. 5:2)... a man of flesh and blood imposes exile, and... (God) imposes exile, for it was said ‘Without the camp shall his habitation be’ (ibid. 46)”. Compare also the mention of pbviab “ΠΊϋ, i.e., exile and forced labour in a mine (exilium in metalla), in Deuter. R., 2:30:6:12; Sperber, p. 42.8. The imposition of alternative penalties to one and the same crime derives from the distinction between penalties reserved to different social classes, a distinction of great importance in Roman penal law. As circumcision was punished according to the Lex Cornelia de sicariis et veneficis, and more particularly in accordance with its application to the crime of castration, punishment for circumcision conformed to the distinction made between ‘honestiores’ and ‘humiliores’ in punishments for castration. According to Paul, castrators belonging to the class of the ‘honestiores’ were condemned to exile to an island and confiscation of property, while the others were punished by death (Sententiae, 5:23:13). While these two classes were never defined in a clear and precise legal definition, they were recognized in legal practice, and particularly in the penal law. The penalties inflicted on the ‘honestiores’ were, as a rule, milder and less degrading than those reserved to the ‘humiliores’. See G. Cardascia, “L’Apparition dans le droit des classes d’‘Honestiores’ et d’‘Humiliores’,” RHDFE, Series 4, XXVIII (1950), pp. 305-337, 461-485; P. Gamsey, Social Status and Legal Privilege in the Roman Empire, Oxford 1970, esp. pp. 158-162.
BIBLIOGRAPHY
Juster, I, pp. 266-269; Browe, p. Ill; M. A. de Dominicis, “Di alcuni testi occidentali delle ‘Sententiae’ riflettenti la prassi postclassica,” Studi Arangio-Ruiz, IV, Naples 1953, p. 540 n. 66; Colomi, Gli Ebrei, p. 3; E. Levy, “Rehabilitierung einiger Paulussentenzen,” SDHl, XXXI (1965), pp. 7-9; Linder, pp. 102-103, 129-131 (in Hebrew); Avi-Yonah, p. 46; Rabello, Legal Condition, p. 405 n. 134; Langenfeld, p. 50 n. 122; Alon, Jews, II, p. 687.