22 Prohibition of Jewish Marriage Customs Theodosius (with Arcadius and Honorius)
30 December 393
This law has been preserved only in Codex Justinianus (CJ 1:9:7). According to its inscription it was given at Constantinople by Theodosius, in his name and in the names of Valentinian II and Arcadius, and it was addressed to Infantius, Comes of the East.
This information, however, is contradicted by the date provided in the subscription, 30 December 393, as Valentinian II died on 15 May 392, and the third Augustus on 30 December 393 was, consequently, Honorius rather than Valentinian II. It seems that the codificators of Codex Justinianus erred in their identification of the third Augustus, and that Valentinian’s name should be replaced by that of Honorius’.Theodosius prohibited, in this law, the application of the Jewish “custom” (mos), and “law” (lex) in marriage, and imposed a specific prohibition on polygamy. The law bears on those marriage customs which were peculiar to the Jewish Halacha, such as the degrees of permitted kinship, legal age of nubility, and the rules of Yibbum, but its formulation permitted a more general interpretation, even to the extent of condemning the Jewish marriage ceremony in itself and the entire Halachic corpus on marriage. It is obvious, however, that the law was never effectively implemented by the Imperial authorities, for it was precisely this halachic corpus which emerged as one of the major constants of the Jewish communal autonomy. The interdiction of polygamy, on the other hand, corresponded to the monogamous tendencies of the Jewish communities in the West, under the influence of the monogamous structure of Christian European society. The interdiction of polygamy decreed by R. Gershom did not initiate this trend, it rather confirmed it and legally corroborated an existing situation. A clear evidence from the first half of the fifth century on the monogamous character of the Jewish family on the one hand, and on the enforcement of Imperial legislation against polygamy on the other, can be found in the Commentary to Paul’s First Epistle to Timotheus, composed by Theodoret:1 ‘Πάλαι γάρ είώθεισαν καί Έλληνες καί ’Ιουδαίοι, καί δυο, καί τρισί, καί πλείοσι γυναιξί νόμφ γάμου κατά ταύτόν συνοικείν.
Τινές δε καί νύν, καίτοι των βασιλικών νόμων δυο κατά ταύτόν άγεσθαι κωλυόντων γυναίκας, καί παλλακίσι μίγνυνται καί έταίραις’. “Formerly both Greeks and Jews used to contract simultaneously marriages with two, three, or even more wives. Even now some copulate with concubines and prostitutes, although the Imperial laws forbid to marry two women at the same time.”Codex Justinianus, 1:9:7, ed. Krüger, p. 61
IDEM AAA.· INFANTIO· COMITI ORIENTIS*
Nemo ludaeorum morem* suum in coniunctionibus retinebit nec iuxta legem suam nuptias sortiatur nec in diversa sub uno tempore coniugia conveniat.
5 D. Ill K. IAN. CONSTANTINOPOLI THEODOSIO A. Ill ET ABUNDANTIO CONSS.·
THE SAME THREE AUGUSTI2 TO INFANTIUS,3 COMES OF THE EAST4
None of the Jews shall keep his custom in marriage unions, neither shall he contract nuptials according to his law, or enter into several matrimonies at the same time.
GIVEN ON THE THIRD DAY BEFORE THE CALENDS OF JANUARY AT CONSTANTINOPLE, IN THE CONSULATE OF THEODOSIUS AUGUSTUS FOR THE THIRD TIME AND ABUNDANTIUS.5
NOTES
1. Ed.
J. L. Schulze & J. A. Noesselt, PG, LXXXII, Col. 805.size=1 color=black face="Times New Roman">2. Augusti: the preceding law in Codex Justinianus (CJ 1:9:6) referred to Valentinian, Theodosius, and Arcadius. The correct identification, however, is Theodosius, Arcadius, and Honorius.
3. Infantius was probably the Consularis of Syria in 390. See Haehling, p. 186; PLRE, 1, s.v.
4. Comes of the East: this title designated the governor of the diocese of the East in the middle of the fourth century, in recognition of his elevated status in regard to the other Vicarii. The diocese of the East included about the year 400 the following provinces: Arabia, Palaestina I, Palaestina II, Palaestina III (Salutaris), Phoenice, Phoenice Libanesis, Syria, Syria Salutaris, Euphratensis, Cilicia I, Cilicia II, Isauria, Cyprus, Mesopotamia, and Osroene. See Kornemann, PW, 1:9, 1903, s.v. Dioecesis, Coi. 727; Stein, p. 113.
5. Given... Abundantius: 30 December 393.
BIBLIOGRAPHY
Juster, II, pp. 50-54; Seeck, Regesten, p. 283; P. Krüger, “Beiträge zum Codex Theodosianus IX: Zusammenfassung der Ergänzungen des Theodosianus aus dem Justinianus,” ZSSRG, RA, XLI (1920), p. 11; Browe, pp. 122-123; Ferrari dalle Spade, “Privilegi,” p. 105; Seaver, p. 48; Colorni, Legge ebraica e leggi locali; Ricerche sull’ambito d’applicazione del diritto ebraico in Italia dall’epoca romana al secolo XIX, Milan 1945, p. 110; Noethlichs, pp. 187-188; Lippold, PW, Suppi. XIII, 1973, s.v. Theodosius I, Col. 901; Avi-Yonah, p. 214; Reichardt, p. 35.