RELATIONS BETWEEN JEWS AND NON-JEWS
Legislation in this area concerned the encounter and conflict between Jews and Christians; the encounter between Jews, pagans, or heretics did not form a separate subject of legislation.
The encounter with pagans and heretics appeared in legislation dealing with Christians, e.g., the laws concerned with the conversion of slaves (see below), or a small number of laws which related to the persecution of Orthodox Christians in Africa by the Donatists and the Jews in the beginning of the fifth century (Nos. 37-38). The growing tendency of the government to apply to the Jews the same principles which determined its policy towards heretics and pagans was reflected in the considerable number of legal texts which referred to all three groups as one. This development was the outcome of the legislator’s loyalty to theological principles more than evidence of a real cooperation between these three religions (see above). The legislator did not act as a neutral arbiter among the various sides, but adopted a Christian position, predetermined by the Christian character of the State. Nevertheless, there were cases in which the legislator acted in the light of abstract, general legal principles, independent of his religious preferences.A. Conversion to and from Judaism
As seen from the large number of laws issued over a period of time, the authorities were occupied by problems relating to conversion to and from Judaism far more than by any other subject in the sphere of Jewish-Christian relations. These laws testify to the reality of both forms of conversion from the second to the sixth century, and imply that the authorities were not completely successful in their attempt to resolve these problems in the manner advocated by the Church.
Conversion from Judaism—The Christian lawgiver dealt with the conversion of Jews to Christianity in seven laws.
One may deduce from this relatively small number that no particular difficulties were raised by this type of conversion, and that its dimensions were quite modest during the fourth to sixth centuries. The legislator was interested in increasing the number of Jewish converts to Christianity, and this motivation inspired Constantine’s laws from 329 (No. 8) and 335 (No. 10). They protected apostates from attacks on the part of the Jews, acts for which they were liable to suffer death at the stake (No. 8, perhaps also the punishment referred to in No. 10). This also seems to have been the aim of Valentinian III when, in 426, he prohibited Jews from disinheriting children who had abandoned their religion. Sons convicted of the murder of their parents were entitled to their guaranteed portion in the estate, in accordance with the Falcidian Law, “in honour of the religion they have chosen” (No. 52). The main part of this law was repeated in a Greek translation in a law that was probably given by Justinian in 527/528 (No. 58). These laws offered protection to apostates, and at the same time tempted them with inducements, completely consistent with the official policy of encouraging conversion to Christianity among the Jews.A certain departure from this trend can be observed in the laws of Arcadius from 397 (No. 26) and of Honorius from 416 (No. 43), which were intended to stop insincere conversions of Jews to Christianity. Arcadius prohibited the baptism of Jews involved in debts or entangled with the law, ordering that their conversion be postponed until they had paid their debts or had established their innocence. The same approach was adopted by Honorius, who allowed apostates baptised under such circumstances to return to Judaism, and even promised them the protection of the authorities. They needed such protection mainly against the Church, which was committed to the theological principle that the sacrament of baptism left an indelible impression upon the baptised.
Honorius’ law should be seen as the outcome of his favourable response to a petition presented by the Jews, for it was addressed to “the Didascalus Annas and to the Heads of the Jews,” similar to a law from 415 (No. 42) which also contained concessions to the Jews. These laws provide at least a partial explanation for the limited success of the Christian mission among the Jews during those centuries.The editors of the Justinian Code incorporated texts reflecting both attitudes: a law from 329 (No. 8) granted protection to apostates, while a law from 397 (No. 26) imposed restrictions upon the baptism of Jews. Justinian himself strengthened the former attitude in his law from 527 or 528 (No. 58), and tried, in a later law from 553 (No. 66), to render the Jews more receptive to missionary persuasion by allowing the synagogal reading of the Torah in languages other than Hebrew and by prohibiting the study of the Mishna.
Conversion to Judaism—The Christian legislator found explicit prohibitions against conversion to Judaism in the legal tradition he received from his pagan predecessors. They were directed primarily against circumcision, as an explicit and easily detectable sign of Judaism. Two texts of this kind survive in Justinian’s Digest and in the Breviarium of Alaric II (Nos. 1 and 6), one from Modestin and one from Paul. The Christian legislator did not depart from the explicit prohibition against conversion to Judaism, and added to the prohibition of circumcision, applicable to males only, another criterion of conversion, the joining in the synagogue and in the Jewish cult (No. 8 from 329; No. 12 from 353; and No. 16 from 383). General prohibitions against conversion are known from the fourth century (No. 8 from 329) and from the fifth century (No. 41 from 415; No. 48 from 423; and No. 54 from 438), but only Nos. 48 and 54 were received into the Justinian Code. One can appreciate how seriously the legislator considered this phenomenon, and evaluate the means he considered appropriate to deal with it, by the punishments he imposed upon both converts and those who performed their conversion.
The pagan legal tradition imposed upon those who had undergone circumcision, and those who performed it, the usual punishments for castration (No. 1). This meant, in practice, that a Roman citizen would be dispossessed of his property and permanently exiled to an island, while a physician who performed circumcision would be executed (No. 6). Constantine probably referred to these punishments when he stated that both the convert and the one performing the conversion should “suffer... the deserved punishments” (No. 8). The authorities’ approach to the subject underwent a change in the middle of the fourth century; the harsher punishments were imposed upon those who converted nonJews, while the converts themselves were subject primarily to economic penalties. Constantius II decreed in a law from 353 (No. 12) that a Christian convert to Judaism was to be punished only by the confiscation of his property, while Gratian, in a law from 383 (No. 16), deprived Christian converts of the right to leave their property in a will, and imposed “harsher penalties than usual” upon those who converted them. These punishments, permanent exile and confiscation of property, were mentioned without details in a very harsh law of Honorius from 409 (No. 39), and are detailed in a law of Theodosius II from 423 (No. 48). In 438 the punishment was made more severe. Whoever converted a Christian was subject both to confiscation of property and to the death penalty (No. 54). These laws—apart from No. 8—were received by Justinian’s compilers into the Digest (No. 1) and the Code (Nos. 12, 16, 48, and 54). The punishments established in the fourth and fifth centuries were thus accepted and given validity in the framework of the Justinian Corpus.Another source of conversion to Judaism existed in the class of “Heaven-Fearers,” that is, semi-converts who observed only a part of the halachic rules. Honorius referred to this group in two laws from the early fifth century.
In a law from 407 (No. 35), he defined it as “a new doctrine, unknown to me,” imposed upon the converts the usual punishments against heretics and pagans, and confiscated their buildings in favour of the churches. It would seem that he came quickly to understand the nature of these “Heaven-Fearers.” In a law from 409 (No. 39), in which he also dealt with those who converted others to Judaism, he threatened them with the laws applying to heretics if they did not return to Christianity within one year. No. 39 was accepted into the Justinian Code, and “Heaven-Fearers” together with Jews were included in the rubric of Book 1, Chapter 8, as they were in the Theodosian Code (16:8) and in the Breviarium (16:3).B. The Keeping of Non-J ewish Slaves
It was in this area that the Imperial authorities waged their longest and most intensive fight against conversion to Judaism. Jews were required by halachic law to convert their non-Jewish slaves, because various employments in the Jewish household were permitted to Jews alone. Furthermore, such a conversion was considered to be a highly meritorious act. As a result, slaves of Jews provided a steady source of new proselytes to Judaism. The idea that it was inappropriate for a Jew to rule over Christians provided the legislator with a motive for restricting Jewish ownership of non-Jewish slaves, or for prohibiting it completely. This was the principle invoked by Theodosius II when he dealt with this topic in a law from 423 (No. 48). It is apparent that a strong motivation for the restrictive laws of this type was the concern that ownership by Jews of non-Jewish slaves would culminate in their conversion to Judaism. In this matter one observes a clear continuity between pagan and Christian legal traditions, for Paul described the two kinds of punishment imposed on those who circumcised their slaves, apparently modeled upon the punishments for performing castration: exile for the “honorable” and death for the “humble” (No.
6).Examination of Christian legislation on the conversion of slaves between the fourth and sixth centuries reveals that while the authorities did make some innovations in this area, they hesitated between different courses of action and achieved only partial success. For a long time they lacked a clear and resolute policy, and on this subject alone they turned to the Church for assistance. This is a clear indication not only of the predominantly religious nature of the whole matter, but also of the limited efficacy of the secular means of law enforcement. The Church was entrusted with the ownership of the Christian slaves (see below), and the churches were recognized as sanctuaries for the slaves who fled from their Jewish masters (No. 39 from 409). In a law from 534 (No. 61), Justinian charged the bishops, together with the Church Protectors and the Imperial administration, with responsibility for the application of the laws protecting Christian slaves from their Jewish masters.
The Christian government—like its pagan predecessor—was unable to deal effectively with the conversion of bondmaids, and converted bondmaids are explicitly mentioned only in a law of Constantine II from 339 (No. 11). The other texts speak of slaves in the neuter gender—for example, as ‘mancipium’, a term referring equally to male and female slaves—and, primarily, in the masculine, as the legislator found it more practical to persecute for conversion by penalising obvious acts of circumcision rather than the more easily concealed conversions of women. Two complementary prohibitions were imposed at the beginning of the fourth century: an explicit prohibition against the conversion—in practical terms, circumcision—of slaves, and one against the purchase or holding of Christian or other non-Jew- ish slaves by Jews. These two prohibitions appear in the laws of Constantine (No. 10 from 335), Constantine II ( No. 11 from 339), Theodosius (No. 17 from 384), Theodosius II (No. 41 from 415; No. 44 from 417; No. 48 from 423; and No. 54 from 438), and Justinian (No. 59 from the period 527-534; No. 61 from 534; and No. 62 from 535). These laws do not add up to one consistent policy. In 415 Honorius responded to the Jews’ appeals and permitted them to hold Christian slaves on condition that they be allowed to observe their own religion (No. 42). In the East, similarly, certain concessions were granted in 417, when Theodosius II allowed the Jews to inherit Christian slaves and keep them on condition that they would refrain from converting them (No. 44). In 423, however, Theodosius II returned to the stringent line (No. 48) which he reaffirmed with fervor in 438 (No. 54). From then on, the prohibitions reappeared in full, although Justinian’s laws would indicate that in the course of time these prohibitions were not applied. A law from 534 (No. 61), for example, indicates that at that time Jews possessed Christian slaves in Africa.
The punishments instituted in the laws were intended to achieve three goals: (1) to gain the cooperation of slaves owned by Jews in the authorities’ fight against conversion of slaves; (2) to discourage Jews from acquiring, holding, and converting to Judaism non-Jewish slaves; (3) to punish Jews who violated these prohibitions and to “rectify” the injury done to the religious status of the converted slaves, for the legislator regarded the purchase and conversion of a slave to amount to a substantive change in the legal personality of that slave. Constantine stated in a law from 335 (No. 10) that a non-Jewish slave who had been bought by a Jew or circumcised by him should go free, but by 339 the policy changed, and Constantine II stated that the State treasury should sue for purchased—probably also circumcised—slaves of this kind, while Christian women who had been held in a State ‘gynaeceum’ and later converted to Judaism should be returned there (No. 11). Further changes had taken place by 384. At a certain time it was established that these slaves should be redeemed by Christians through the payment “of the right price” (No. 17), but a later ruling established that they were to be taken from their masters’ possession in a way not specified in the law (No. 17). In a law from 415 (No. 41), Theodosius II quoted a “law of Constantine” when he transferred the ownership of Christian slaves from their Jewish owners to the Church. After two years, however, he altered his policy, stating in a law from 417 (No. 44), that if a Christian slave illegally acquired by a Jew brought the matter to the attention of the authorities, he would be set free. The owners of such slaves who did not inform the authorities would have their right of ownership nullified, although the law did not specify who was to take possession of the slaves.
The principle that Christian slaves owned by Jews should be emancipated became well established during the sixth century. Justinian ruled in a law issued between 527 and 534 (No. 59) that Christian slaves owned by Jews were to be emancipated, and he reconfirmed in a law from 534 (No. 61) that such slaves were “free in any way whatsoever, according to our previous laws.” Not only were non-Jewish slaves who coverted to Christianity to be emancipated without any compensation, but their Jewish owners could not repossess them even if they themselves had later converted to Christianity.
There was greater consistency in the punishments imposed upon Jewish slave-owners. A clear distinction was drawn between the owning or purchasing of non-Jewish slaves, which was subject to a relatively light punishment, and the conversion of non-Jewish slaves, particularly Christians, which was to be punished more severely. This distinction appeared in a law of Constantine II from 339 (No. 11) which imposed on persons who converted others a death penalty and the confiscation of property, while purchasers of non-Jewish slaves should suffer only the loss of those slaves. Laws issued by Theodosius II in 417 (No. 44) and in 438 (No. 54) reaffirmed that the conversion of Christian slaves was punishable by death and property confiscation. Justinian ruled, in a law issued between 527 and 534 (No. 59), that the possessors of Christian slaves were subject to loss of ownership over them and to a fine of thirty gold pounds. Justinian’s editors incorporated three of these laws in their Code. Two of them (Nos. 11 and 44) were combined into one text, which stated that a Jew should not buy, or otherwise acquire, nor keep a non-Jewish or Christian slave. If he did keep or convert a non-Jewish slave, he was to be executed and the slave set free. The third text (No. 54) imposed a strict penalty of confiscation of property and death on anyone who converted a Christian slave.
C. Inter-Religious Conflict and Social Contact
The hostility that drew the two religions apart is reflected in those laws that deal with the conflicts that arose occasionally between them. The Christian legislator was mainly concerned with injuries suffered by Christians at the hands of Jews, but general legal principles inspired him also to extend the State’s protection to Jews and to prevent their persecution by Christians.
The laws protected the Christian religion against defamation by Jews. An explicit prohibition along these lines related to the holiday of Purim; in a law from 408 (No. 36) Theodosius II regarded the traditional Purim frolics as a desecration of the mysteries of Christianity. In another law, from 420 (No. 46), he granted protection to the Jews yet warned them that they should not “grow... insolent, and elated by their security commit something rash against the reverence of the Christian cult.”
An edict of Marcian from 452 (No. 55) marked an ominous development in this field, for that law treated as blasphemy a particular situation in which the Jews figured as completely passive bystanders, i.e., their presence on occasions when questions of Christian dogma were discussed. The anti-Jewish sentiment expressed in that law depended on events within the Christian Church rather than on what the Jews themselves did or abstained from doing. Violence perpetrated by Jews against the Orthodox clergy and cult was explicitly mentioned in laws of Honorius from the years 408 (No. 37) and 409 (No. 38), referring to the persecution of Orthodox Christianity in North Africa at the hands of Donatists, heretics, Jews, and pagans. The legislator ordered the local administration to take vigorous actions against these persecutions with all the means at their disposal.
Attacks by Christians against Jews and synagogues form the subject of legislation beginning with the last decade of the fourth century. Theodosius ruled for the first time in a law from 393 (No. 21) that Jews were entitled to protection from rioters. Theodosius II, in laws from 423 (Nos. 47-49), reaffirmed the principle stated by Theodosius I, even characterizing those Christian who riot against Jews as acting “under the cover of the venerable Christianity” (No. 48) and “abusing the authority of religion” (No. 49). Anti-Jewish riots were seen, in this light, as contrary both to law and to the true nature of the Christian religion.
The choice made from these laws by the editors of the Justinian Code clearly indicated the situation of the Jews at the first half of the sixth century. While Justinian’s Code preserved the admonition to the Jews not to commit acts profaning the mysteries of Christianity (Nos. 36, 46, and 55) and stressed the government’s duty to protect Jews against Christian rioters (No. 49), it did not refer to violence perpetrated by Jews upon Christians; the Jews had become entirely passive in their relationship with Christians.
The only law to deal with specifically social relations in this context was given by Theodosius in 388 (No. 18). It prohibited marriages between Jews and Christians, and applied the punishments imposed in cases of adultery to marriages of this kind. This prohibition was also received by the editors of both Alarie II and Justinian. There is no doubt that it originated primarily in a religious context, and that it was derived from canonical prohibitions from the early fourth century. The obvious purpose of the law was to close another potential channel for the spread of Judaism. It remained, however, an isolated measure. In contrast to the numerous canonical prohibitions designed to achieve this aim, we do not know of other laws which were intended to enforce the social segregation of the Jews.
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