RELATIONS AMONG JEWS
This class of laws dealt with internal Jewish matters, that is, relations between Jews and those activities of the Jewish authorities which did not depend on the Roman government for their coercive force.
Two largely contradictory principles guided the Roman authorities in this area. The first, formulated by Arcadius in 397, that “the Jews shall be bound to their rites” (No. 27), derived from the official recognition of Judaism as a lawful religion. It implied the abstention of the government from direct involvement in those matters which were seen as “religious,” and consequently left them entirely to the Jews. The other principle, reflected in the tendency of the legislation of the third to fourth centuries to expand the State’s activity at the expense of Jewish autonomy, consisted of the commitment of the State to administer the Empire in the light of the system of beliefs and values it considered to be sacred and universally binding. State intervention in typically “religious” Jewish matters resulted, therefore, from the general tendency of the State to penetrate areas of life in which it had not previously been involved and from the growing hostility toward Judaism and its institutions which intensified in direct proportion to the Christianization of the State. The incompatibility of these two principles had a paralyzing effect on the government, hence, the small number of laws enacted on these subjects, and their division between legislation bearing on various aspects of Jewish autonomy in relation to the State and to the common law, and legislation that dealt strictly with internal Jewish matters.It would seem that prior to the last decade of the fourth century the State, by legislative and judicial means, did not interfere in the autonomous Jewish domain. Julian’s “advice” to the Patriarch Hillel to desist from collecting ‘demey-kelila’ (No.
13 from 363) was certainly no less persuasive than the explicit ban issued by Honorius in 399 on this same subject (No. 30), but repealed in 404 (No. 34). The alleged reasons given by these two rulers for their bans were identical. However, one must clearly draw a distinction between Julian’s reluctance to interfere directly in an internal Jewish matter through formal governmental means, and Honorius’ willingness to do so based on the assumption that the collection of ‘demey-kelila’ was anchored in Imperial privilege and pertains, as such, to the sphere of governmental responsibility. Some historians see the ‘rescriptum’ sent by Diocletian to luda in 293 (No. 5) as a governmental intervention in the dispute that separated the patriarch and the Sages on the issue of the ordination of Sages and judges, but the precise significance of this document in Jewish history is still open to debate. On the other hand, Theodosius established a definite and clear legal ruling pertaining to the relative obligations of the individual and the community to undergo State liturgies in a law from 390 (No. 19). In this law he stated that the community was not responsible for the liturgy of marine transport of corn, but imposed this obligation on individuals. He thus denied the duty of the individual Jew to undergo liturgies through the community and established the direct responsibility of the individual to the State in matters of liturgies. The community was not held responsible for the burden of the liturgies, and did not serve as an intermediary between the individual and the State in this matter.A substantial restriction on Jewish autonomy, which implied a corresponding increase of the State’s activity among the Jews, took place in 398, when Arcadius restricted the judicial powers of the Jewish leadership to strictly religious matters and to arbitration-type cognizance in civil matters, requiring that the Jews turn to the State courts in all other legal business.
During that decade the government involved itself in an additional area, that of Jewish marriage customs. Theodosius prohibited, in a law from 393 (No. 22), the observance of Jewish custom (mos) and law (lex) in matters pertaining to marriage, prohibiting polygamy in particular. From then on, the Jews had the same status as other citizens of the Empire in this respect, and in 535, when Justinian introduced a law against “unnatural marriages,” its rules applied also to Jews. This was attested by a law from 536 or 537 (No. 63), in which Justinian granted the Jews of Tyre certain dispensations from the punishments fixed by that law.In only one law did the lawgiver directly interfere in religious matters. Justinian stated in a law from 553 (No. 66) that Jews were allowed to read their holy books in the synagogue in any language they wished, but if they chose to use a Greek text, they must use the Septuagint or Aquila’s translation. He also banned the Mishnah, and the holding of heretical opinions on the subjects of the resurrection of the dead, the final judgment, and the creation of angels. This law closed the circle of Roman legislation concerning the Jews by blatantly abandoning the ancient tradition of non-interference in religious matters, and by favouring direct and aggressive intervention. The text of the law indicated that its authors were aware of its novelty in this respect, as they pointed out that this intervention came about at the request of Jews, and that it was also motivated by the government’s wish to prevent disturbance of public order.
The continuous contraction of the scope of Jewish autonomy can also be seen by a comparison of the Theodosian and Justinian codes. The Theodosian Code includes Nos. 19, 28, and 30, which reflect the extension of State activity at the expense of the authority of the Jewish communal leadership. The Justinian Code contains, in addition to texts of the same type (No.
28 and No. 3), another law which abolished Jewish jurisdiction over marriage law and replaced it by the common law (No. 22). Although in its original context No. 3 concerned a private matter, by its inclusion in the Code it acquired a public law significance because it was interpreted as a general rule that the Jewish community could not claim an estate in court.NOTES
1. The basic work in this field is: J. Juster, Les Juifs dans l'empire romain, I-II, Paris 1914. For up-to-date bibliography, see A. Μ. Rabello, “A Tribute to Jean Juster,” Israel Law Review, XI (1976), pp. 216-247. See also Ferrari dalle Spade, “Privilegi,” pp. 102-117; Solazzi, “Fra norme,” pp. 396-406; K. L. Noethlichs, “Die gesetzgeberischen Massnahmen der christlichen Kaiser des 4. Jahrhunderts gegen Häretiker, Heiden und Juden,” Ph. D. Thesis, Cologne 1971. For attempts to derive historical information concerning the Jews in the Roman Empire from the legal sources see J. E. Seaver, style='font-size:8.5pt'>Persecution of the Jews in the Roman Empire (300-438), Lawrence 1952; Vogler, pp. 3574. For monographs on specific periods, see F. Blanchetière, “L’evolution du Statut des Juifs sous la dynastie constantinienne,” Crise et redressement dans les provinces européennes de 1'Empire, Actes du colloque de Strasbourg (décembre 1981), ed. E. Frézouls, pp. 127-141; Μ. Pavan, “I cristiani e il mondo ebraico nell’età di Teodosio il Grande,” Annuario della Facoltà di Lettere e Filosofia dell'Università di Perugia, III (1965-66), pp. 367-530; R. Μ. Seyberlich, “Die Judenpolitik Kaiser Justinians I,” Byzantinische Beiträge, I (1964), pp. 73-80; Browe, pp. 109-146.
2. See J.
Rouge, “La legislation de Théodose contre les hérétiques,” Epektasis, Mélanges Daniélou, Paris 1972, pp. 635-649; J. Gaudemet, “La condamnation des pratiques paiennes en 391,” ibid., pp. 597-602; A. Berger, “La concezione de eretico nelle fonti giustinianee,” Rendiconti, Series 8, X (1955), pp. 353-368. Much of the terminology used to designate the pagans is identical with that employed by the legislator to designate the Jews. See I. Opelt, “Griechische und lateinische Bezeichnungen der Nichtchristen; ein terminologischer Versuch,” Vigiliae Christianae, XIX (1965), pp. 1-22.3. C. Wirszubski, “Audaces—A Study in Political Phraseology,” JRS, LI (1961), pp. 12-22.
4. J. Guademet, La formation du droit seculier et du droit de I'tglise aux IVe et Ve sitcles, Paris 1957, pp. 106-118.
5. See the definition in No. 28: “The Jews, who live under the Roman common law.” Their citizenship entitled them to the protection of the law.
6. For the Roman legislation concerning the synagogue, see S. Krauss, “The Christian Legislation on the Synagogue,” Goldziher Memorial Volume, II, Jerusalem 1958, pp. 14-41.
Table 1. Laws Listed by Number and Source
| No. Legislator | Date | Source | |||
| 1 | Antoninus Pius (according to Modestin) | style='font-size:9.0pt'>ca. 138-155 | Dig. 48:8:ll:princ. | ||
| 2 | Septimius Severus with Caracalla (according to Ulpian) | 196/198 209/211 | D/g. 50:2:3:3 | ||
| 3 | Caracalla | 30 June 213 | CJ 1:9:1 | ||
| 4 | Septimius Severus with Caracalla (?) (according to Modestin) | early third century | Dig. 27:1:15:6 | ||
| 5 | Diocletian (with Maximian, Galerius, and Constantius) | 27 December 293 | CJ 3:13:3 | ||
| 6 | According to Paul | late third century | Sententiae Pauli 5:22:3-4 | ||
| 7 | Constantine the Great | 11 December 321 | CTh 16:8:3 | ||
| 8 | Constantine the Great | 18 October 329 | CTh 16:8:1 = CJ 1:9:3 | ||
| 9 | Constantine the Great | 29 November and 1 December 330 | CTh 16:8:2 + CTh 16:8:4 | ||
| 10 | Constantine the Great | 21 October 335 | Sirm. 4 = CTh 16:9:1 + CTh 16:8:5 | ||
| 11 | Constantine II | 13 August 339 | (CTh 16:9:2 = CJ 1:10:1) + CTh 16:8:6 | ||
| 12 | Constantius II | 3 July 353 | CTh 16:8:7 = CJsize=1> 1:7:1 | ||
| 13 | Julian | 1 March 363 | Jul. Epist. 51 (25) | ||
| 14 | Valentinian I (with Valens) | 6 May 368, or 370, or 373 | CTh 7:8:2 = CJ 1:9:4 | ||
| 15 | Gratian (with Valentinian II and Theodosius) | 18 or 19 April 383 | CTh 12:1:100 + (CTh 12:1:99 CJ 1:9:5) | ||
| 16 | Gratian (with Valentinian II and Theodosius) | 21 May 383 | CTh 16:7:3 = CJ 1:7:2 | ||
| No. Legislator | Date | Source | |||
| 17 | Theodosius (with Gratian and Valentinian II) | September 384 | CTh 3:1:5 | ||
| 18 | Theodosius (with Valentinian II and Arcadius) | 14 March 388 | CTh 3:7:2 = CTh 9:7:5 = CJ 1:9:6 | ||
| 19 | Theodosius (with Valentinian II and Arcadius) | 18 February 390 | CTh 13:5:18 + CJ 10:40:8 | ||
| 20 | Theodosius (with Arcadius and Honorius) | 17 April 392 | CTh 16:8:8 | ||
| 21 | Theodosius (with Arcadius and Honorius) | 29 September 393 | CTh 16:8:9 | ||
| 22 | Theodosius (with Arcadius and Honorius) | 30 December 393 | CJ 1:9:7 | ||
| 23 | Arcadius (with Honorius) | style='background:white; padding:0cm.5pt 0cm.5pt;height:23.3pt'> CTh 16:8:10 = CJ 1:9:9 | |||
| 24 | Arcadius (with Honorius) | 24 April 396 | CTh 16:8:11 | ||
| 25 | Arcadius (with Honorius) | 17 June 397 | CTh 16:8:12 | ||
| 26 | Arcadius (with Honorius) | 17 June 397 | CTh 9:45:2 = CJ 1:12:1 | ||
| 27 | Arcadius (with Honorius) | 1 July 397 | CTh 16:8:13 | ||
| 28 | Arcadius (with Honorius) | 3 February 398 | CTh 2:1:10 = CJ 1:9:8 | ||
| 29 | Honorius (with Arcadius) | 13 September or 13 February 398 | CTh 12:1:158 = (CTh 12:1:157 = CJ 10:32:49) | ||
| 30 | Honorius (with Arcadius) | 11 April 399 | CTh 16:8:14 | ||
| 31 | Arcadius (with Honorius) | 28 or 30 December 399 | CTh 12:1:164 + (CTh 12:1:165 = CJ 1:9:10) | ||
| 32 | Arcadius (with Honorius) | 3 February 404 | CTh 16:8:15 | ||
| 33 | Honorius (with Arcadius) | 22 April 404 | CTh 16:8:16 | ||
| 34 | Honorius (with Arcadius) | 25 July 404 | CTh 16:8:17 | ||
| 35 | Honorius (with Arcadius and Theodosius II) | color=black face="Times New Roman">25 November 407 | Sirm. 12 = (CTh 16:5:43 = CJ 1:9:12) + CTh 16:10:19 | ||
| 36 | Theodosius II (with Honorius) | 29 May 408 | CTh 16:8:18 = | ||
CJ 1:9:11
| No. Legislator | Date | Source | ||
| 37 | Honorius (with Theodosius II) | 24 November 408 | CTh 16:5:44 | |
| 38 | Honorius (with Theodosius II) | 15 January 409 | Sirm. 14 = (CTh 16:2:31 = CJ 1:3:10) + CTh 16:5:46 | |
| 39 | Honorius (with Theodosius II) | 1 April 409 | 0cm.5pt 0cm.5pt;height:48.0pt'> ||
| 40 | Honorius (with Theodosius II) | 26 July 412 | CTh 16:8:20 + (CTh 2:8:26 = CTh 8:8:8 = CJ 1:9:13) | |
| 41 | Theodosius II (with Honorius) | 20 October 415 | CTh 16:8:22 = CJ 1:9:15 | |
| 42 | Honorius (with Theodosius II) | 6 November 415 | CTh 16:9:3 | |
| 43 | Honorius (with Theodosius II) | 24 September 416 | CTh 16:8:23 | |
| 44 | Theodosius II (with Honorius) | 10 April 417 | CTh 16:9:4 = CJ 1:10:1 | |
| 45 | Honorius (with Theodosius II) | 10 March 418 | CTh 16:8:24 | |
| 46 | Theodosius II (with Honorius) | 6 August 420 | CTh 16:8:21 = CJ 1:9:14 | |
| 47 | Theodosius II (with Honorius) | 15 February 423 | CTh 16:8:25 | |
| 48 | Theodosius II (with Honorius) | 9 April 423 | (CTh 16:8:26 = CJ 1:9:16) + CTh 16:9:5 + CTh 16:10:22 + CTh 16:5:59 | |
| 49 | Theodosius II (with Honorius) | 8 June 423 | CTh 16:8:27 = CTh 16:10:23 + CTh 16:5:60 + (CTh 16:10:24 = CJ 1:11:6) | |
| 50 | Theodosius II (with Valentinian III) | 1 February 425 | CTh 15:5:5 = CJ 3:12:6 | |
| No. Legislator | Date | Source | ||
| 51 | Valentinian III (with Theodosius II) | 9 July/ 6 August 425 | Sirm. 6 + CTh 16:5:62 + (CTh 16:2:46 + CTh 16:5:63) + (CTh 16:2:47 + CTh 16:5:64) | |
| 52 | Valentinian III (with Theodosius II) | 7 or 8 April 426 | (CTh 16:8:28 = CJ 1:5:13) + (CTh 16:7:7 = CJ 1:7:4) | |
| 53 | Theodosius II (with Valentinian III) | 30 May 429 | CTh 16:8:29 = CJ 1:9:17 | |
| 54 | Theodosius II (with Valentinian III) | 31 January 438 | Theod. Nov. 3 = (CJ 1:9:18 + CJ 1:7:5 + CJ 1:5:7) | |
| 55 | Marcian (with Valentinian III) | 7 February 452; 13 March 452 | (Cone. Chalc. Acta 2:1:3 = 2:2:2 = CJ 1:1:4) + (Cone. Chalc. Acta2A3 = 2:2:2) | |
| 56 | Justin and Justinian | April/July 527 | CJ 1:5:12 | |
| 57 | Justinian (?) | 9 | CJ 1:9:2 | |
| 58 | Justinian | 527/528 | italic'>CJ 1:5:13 | |
| 59 | Justinian | 527/534 | CJ 1:10:2 | |
| 60 | Justinian | 28 July 531 | CJ 1:5:21 | |
| 61 | Justinian | 534 | CJ 1:3:54 | |
| 62 | Justinian | 1 August 535 | Just. Nov. 37 | |
| 63 | Justinian | 537 | Just. Nov. 139 | |
| 64 | Justinian | 18 August 537 | Just. Nov. 45 | |
| 65 | Justinian | 18 March 545 | Just. Nov. 131:14 | |
| 66 | Justinian | 8 February 553 | Just. Nov. 146 | |
Table 2. Laws Listed by Source and Number
CODEX THEODOSIANUS THEOD. NOV.
| Citation | Law No. | Citation | Law No. | Citation | Law No. |
| 2:1:10 | 28 | 16:8:5 | 10 | 3 | 54 |
| 2:8:25 | 39 | 16:8:6 | 11 |
|
|
| 2:8:26 | 40 | 0cm.5pt;height:12.0pt'> 12 |
|
| |
| 3:1:5 | 17 | 16:8:8 | 20 | CODEX JUSTINIANUS | |
| 3:7:2 | 18 | 16:8:9 | 21 | Citation | Law No. |
| 7:8:2 | 14 | 16:8:10 | 23 | 1:1:4 | 55 |
| 8:8:8 | 40 | 16:8:11 | 24 | 1:3:10 | 38 |
| 9:7:5 | 18 | lang=EN-US style='font-size:10.0pt'>16:8:12 | 25 | 1:3:54 (56) | 61 |
| 9:45:2 | 26 | 16:8:13 | 27 | 1:5:7 | 54 |
| 12:1:99 | 15 | 16:8:14 | 30 | 1:5:12 | 56 |
| 12:1:100 | 15 | 16:8:15 | 32 | 1:5:13 | 52, 58 |
| 12:1:157 | 29 | 16:8:16 | 33 | 1:5:21 | 60 |
| 12:1:158 | 29 | 16:8:17 | 34 | 1:7:1 | 12 |
| 12:1:164 | 31 | 16:8:18 | 36 | 1:7:2 | 16 |
| 12:1:165 | 31 | 16:8:19 | 39 | 1:7:4 | 52 |
| 13:5:18 | 19 | 16:8:20 | 40 | 1:7:5 | 54 |
| 15:5:5 | 50 | 16:8:21 | 46 | 1:9:1 | 3 |
| 16:2:31 | 38 | style='background:white;padding: 0cm.5pt 0cm.5pt;height:12.0pt'> 41 | 1:9:2 | 57 | |
| 16:2:46 | 51 | 16:8:23 | 43 | 1:9:3 | 8 |
| 16:2:47 | 51 | 16:8:24 | 45 | 1:9:4 | 14 |
| 16:5:43 | 35 | 16:8:25 | 47 | 1:9:5 | 15 |
| 16:5:44 | 37 | 16:8:26 | 48 | 1:9:6 | 18 |
| 16:5:46 | 38 | 16:8:27 | 49 | 1:9:7 | 22 |
| 16:5:59 | 48 | 16:8:28 | 52 | 1:9:8 | 28 |
| 16:5:60 | 49 | 16:8:29 | 53 | 1:9:9 | 23 |
| 16:5:62 | 51 | 16:9:1 | 10 | 1:9:10 | 31 |
| 16:5:63 | 51 | 16:9:2 | 11 | 1:9:11 | 36 |
| 16:5:64 | size=2 color=black face="Times New Roman">51 | 16:9:3 | 42 | 1:9:12 | 35, 39 |
| 16:7:3 | 16 | 16:9:4 | 44 | 1:9:13 | 40 |
| 16:7:7 | 52 | 16:9:5 | 48 | 1:9:14 | 46 |
| 16:8:1 | 8 | 16:10:19 | 35 | 1:9:15 | 41 |
| 16:8:2 | 9 | 16:10:22 | 48 | 1:9:16 | 48 |
| 16:8:3 | bgcolor=white style='background:white;padding: 0cm.5pt 0cm.5pt;height:11.75pt'> 16:10:23 | 49 | 1:9:17 | 53 | |
| 16:8:4 | 9 | 16:10:24 | 49 | 1:9:18 | 54 |
CODEX JUST, (cont.)
CONSTITUTIONES
| Citation | Law No. | SIRMONDIANAE | |
| 1:10:1 | 11, 44 | Citation | Law No. |
| 1:10:2 | 59 | 4 | 10 |
| 1:11:6 | 49 | 6 | 51 |
| size=2 color=black face="Times New Roman">1:12:1 | 26 | 12 | 35 |
| 1:12:2 | 39 | 14 | 38 |
| 3:12:6 | 50 |
|
|
| 3:13:3 | 5 | SENTENTIAE PAULI | |
| 10:32:49 | 29 | Citation 5:22:3-4 | Law No. £ |
| 10:40:8 | 19 | 0 | |
JULIANUS, EPISTULAE Citation Law No. 51(25) 13
NOVELLAE JUSTINIANI Citation Law No. 37(Authentic um 39) 62 45
139
146
DIGEST
Citation
27:1:15:6 48:8:ll:princ. 50:2:3:3
| 65 | CONCILIUM |
|
| 63 | CHALCEDONENSE, |
|
| 66 | ACTA |
|
|
| Citation Law No. | |
| Law No. | 2:1:3 | 55 |
| 2:2:2 | 55 | |