1. RELATIONS BETWEEN JEWS AND THE GOVERNMENT

A. The Recognition of the Jewish Religion and Its Consequences

The fourth century Christian government had inherited from its pagan predecessor a tolerant approach towards the Jewish religion, and rem­nants of the pagan legislation on this question were preserved until the sixth century and then received into the Justinian corpus.

Another aspect of this approach is revealed in the limitations the State undertook in order to avoid profaning the Jewish religion by exempting the Jews from the duties that it required of the non-Jewish citizens. This was clearly a case of positive discrimination in favour of the Jews as against the general population. Septimius Severus and Caracalla required the Jews to participate in the curial liturgies, but both Ulpian and Modestin stated that the Jews were exempt by law from those liturgies which involved a profanation of their religion (Nos. 2 and 4). The religious toleration enjoyed by Jews—unlike the Christians—in the third century, with regard to the cult of the State and the emperor was motivated by this idea.

No substantial change was introduced into this tradition with the coming of the Christian Empire. This conservative policy may be ex­plained, to a certain extent, by the general tendency of the chancellery to preserve a direct continuity between the old legislation and the new.

The same conservative attitude resulted in maintaining the special privileges which exempted the Jews from duties involving profanation of Sabbaths and religious festivals. In a law from 412 (No. 40) Hono­rius recognized the right of Jews not to be summoned to court on a Sabbath or holiday, for either private or public litigation, and empha­sized that this right derived from “ancient custom and usage,” “former privileges,” and “general constitutions of...

State recognition of the Jewish Sabbath and festivals was implied again in a law from the year 408 (No. 36). In this law Theodosius II allowed the Jews to continue to celebrate the festival of Purim pro­vided they did not mock, in the course of their festivities, what was sacred to Christianity. He concluded with the warning that otherwise they were likely “to lose what had been permitted them until now”— an obvious allusion to the privileges and laws mentioned in No. 40. Even when the State took the initiative in a direct and unprecedented interference in the synagogal liturgy and in the realm of Jewish reli­gious beliefs and doctrine, in a law of Justinian from 553 (No. 66), the lawful observance of the Jewish religion and its cult was taken for granted.

This recognition of the Jewish religion implied necessarily the recog­nition of the Jewish “priesthood.” The State prescribed to this priest­hood certain areas of activity, and recognized the synagogue as the main center for its religious life. In a law from 330 (No. 9), Constan­tine defined the nature of the autonomous Jewish leadership in the following manner: “those who dedicated themselves with complete devotion to the synagogues of the Jews, to the Patriarchs or to the Elders, and while living in the above-mentioned sect it is they who preside over the law.” He proceeded to name the office holders he referred to: “priests, Archsynagogues, Fathers of synagogues, and the others who serve in the same place [i.e., the synagogue].” Likewise, Theodosius stated in a law from 392 (No. 20) that the Primates of the Jews {Primates) “are manifestly authorized to pass judgement concern­ing their religion, under the authority of the...

One may infer the degree of recognition granted by the authorities to the “priesthood” as a legitimate institution from the status of its heads—the patriarchs—in the political-administrative hierarchy of the Empire. Julian referred to the Patriarch Hillel as dbekpog “brother” and Evbo^dxaTog “most reverent,” in a law from 363 (No. 13). These titles denote a highly respected position, but they still do not indicate the exact position of the patriarch within this hierarchy. It is not before the end of the fourth century that his rank is documented in legal sources. The patriarchs held at this time two titles which were usually reserved to the senatorial order, ‘spectabilis’ (No. 32) and the more important ‘(clarissimus et) illustris’ (Nos. 20, 24, and 27), which was confined to a very small group of high government officials. The demo­tion of Gamaliel VI in 415 (No. 41) throws some light on the usual procedure of promotion applied to the patriarchs: they first received the title ‘spectabilis’, and were later raised to that of ‘illustris’ by means of a document of appointment (codicilli) in which they were granted the titular ‘praefectura honoraria’, i.e., “honorary Praefectus Praetorio”; it was considered as an elevation to ‘fastigium dignitatum’, “the pinnacle of dignities.” This high rank entitled them, among other things, to the protection of their honour by the State. A law from the year 396 (No. 24), in effect, introduced by Arcadius, threatened pun­ishment against anyone who dared to “utter in public insult against the Splendid Patriarchs.”

The law recognized the authority of the Jewish “priesthood” to lead their co-religionists, albeit in very general and obscure terms; in only three areas did the legislator delineate the respective domains of the Imperial administration and the Jewish authorities.

Religious Sanctions—In this case it is clear that the position of the legislator was determined by the analogy he drew between the Jewish “priesthood” and the Christian clergy, for he viewed Jewish religious sanctions as analogous to the Christian excommunication.

Jurisdiction—A field closely related to that of religious sanctions. The earliest law known to us on this subject was introduced by Arca­dius in 398 (No. 28); from the prohibitions it imposed one may deduce that until that time the Jewish leadership had enjoyed a considerable judicial autonomy, both in terms of the matters and in terms of the persons subject to their jurisdiction. From that time the government distinguished between two areas of jurisdiction, which theoretically encompassed all cases raised by Jews in litigation: cases of “supersti­tion,” and those pertaining to the “court, laws, and rights” (forum, leges, and iura). As Roman citizens the Jews were required to have recourse to two judicial systems: the regular courts (iudicia) and the courts of “the Jews or the Patriarchs.” The Jewish autonomous leader­ship retained the authority to judge matters pertaining to religion, but was proscribed from judging regular court cases, except for those civil cases in which both parties agreed to go before a Jewish court, in which case the court’s verdict was considered the equivalent of that of a court of arbitration. Further restrictions were placed upon Jewish jurisdiction by Theodosius II. In a law from 415 (No. 41), he explicitly prohibited the trying of Christians in the patriarch’s court, and trans­ferred all litigation between Jews and Christians to the jurisdiction of the provincial governors. Alaric Il’s editors accepted Arcadius’ settle­ment from 398 (No.

Taxation—An additional area in which the administration practiced self-restraint and validated the authority of the Jewish leadership was that of the taxes imposed by the Patriarch’s House upon the diaspora communities. We observe the three foci of Jewish self-rule: the Patri­arch’s House, the religious authorities, and the synagogues in the dias­pora. As Honorius defined it in 399: “It is a matter of shameful super­stition (superstitio) that the Archsynagogues, the Presbyters of the Jews, and those they call Apostles, who are sent by the patriarch on a certain date to demand gold and silver, exact and receive a sum from each synagogue, and deliver it to him” (No. 30). This tax, which was anchored both in custom and in legislation—as Honorius attested in a law from 404 (No. 34)—was collected on a regular basis throughout the Empire, except for an interruption in the West during the years 399-404. It aroused opposition among the Jewish communities, ac­cording to the statements of Julian (No. 13) and Honorius (No. 30), who took pride in benefitting the masses of Jews by abolishing the ‘demey-kelila’. That the autonomous leadership could impose such a tax throughout the Diaspora is indicative of the degree of authority it enjoyed under the aegis of the Imperial authorities.

With the disappearance of the patriarchate, the legal basis for the collection of the tax in its old format was eliminated (No. 53, dated 429). The system of tax collection that evolved, though still dependent on the old machinery of collection by emissaries, was among the dis­tinctive signs of Jewish voluntary communal organization, and was no longer based upon the protection of the Gentile government. To a certain extent, however, this collection was also the outcome of the obligation imposed upon the heads of the Jewish communities in Pales­tine and in the Diaspora to pay to the State treasury an “annual payment from all synagogues, on the Primates’ responsibility” (No. 53, dated 429).

A definite element of economic authority granted to the Jewish leadership was its right to establish prices of merchandise. In a rather ambiguous text from the year 396 (No. 23) Arcadius prohibited the provincial governors from interfering in this area. This text was later received into the Justinian Code.

Privileges—It was a small step from recognition of the Jewish “priesthood” and the Jewish religion to granting privileges to Jewish “clergymen.” These privileges, which enabled the “clergy” to fulfill their functions and which reflected their special status, conferred upon them a status similar to that of the Christian clergy. The first Christian legislator to grant privileges of this type was Constantine. He decreed in a law from 330 (No. 9) that the Jewish religious leadership should continue to be exempt from personal and civic liturgies, and that those “clergymen” who were already decurions at the time that the law was issued would be exempt from transport liturgies, “for it would be appropriate that people such as these shall not be compelled for what­ever reason to depart from the place in which they are.” From both the content and the style of the text it seems clear that the exemption of “clergymen” from the liturgies was part of the pagan legal heritage, and that the legislator’s approach here was favourable. Even the aboli­tion of this exemption in a law from 383 (No. 15) by Gratian retained the comparison with the Christian clergy in arguing that the latter do not enjoy an exemption of this type before they fulfill their “dues to their motherland.” Gratian concluded that law in a manner that im­plied clear recognition of the positive character of the Jewish priest­hood and of the Jewish cult: “Therefore, anyone who is genuinely consecrated to God, should provide another man with his property and establish him to perform the liturgies in his place.” A law from 397 (No. 27) is even more explicit: Arcadius granted the Jewish religious leadership “the same privileges that are reverently bestowed on the first clerics of the venerable Christian Law.” From then on, however, the question of the leadership’s exemption was usually combined with that of the obligation of every Jew to perform liturgies (see below).

Synagogues—The legislator’s attitude to the synagogue provided yet another expression of his basic policy of recognition of the Jewish religion. He made use primarily of the Greek term ‘synagoga’, and somewhat less frequently of its Latin translations, generally with the addition of negative adjectives, diminutives or terms of deprecation, such as ‘conciliabulum’ (No. 8 from 329), ‘sacrilegus coetus’ (No. 12 from 353), ‘conventus’ (No. 21 from 393), and ‘conventiculum’ (No. 40 from 412). The law regarded the synagogues first and foremost as buildings serving the Jewish religion and its priesthood. In a law from 330 (No. 9), Constantine defined the Jewish priesthood as follows: “Those who dedicated themselves with complete devotion to the syna­gogues of the Jews, to the Patriarchs or to the Elders,” while another version of that law referred to “those who serve in synagogues.”⁶ In a law from approximately 370 (No. 14), Valentinian and Valens use the term ‘locus religionis’, “a place of religion,” to define the “synagogues of the Jewish law.” This definition is also implied in a law of Theodo­sius from 393 (No. 21), in which he accorded protection to the syna­gogues on the grounds that “the sect of the Jews is prohibited by no law.” The synagogues also functioned in an area that was not explicitly religious: the collection of ‘demey-kelila’ and its conveyance to Pales­tine, with the permission of the central authorities, according to the evidence of a law of Honorius from 399 (No. 30) and one by Theodo­sius II from 429 (No. 53). Due to its recognition of the synagogues, the central government granted them protection when the local authorities prevented gatherings in them, or when they were destroyed, seized, or looted by Christians. Our documentation testifies to a striking consis­tency in this matter from the end of the fourth century until the third decade of the fifth century.

Theodosius was the first Christian legislator to grant protection to the synagogues in a law from 393 (No 21). Arcadius followed his lead in a law from 397 (No. 25); Honorius in a law from 412 (No. 40); and Theodosius II in laws from 420 (No. 46) and 423 (Nos. 47-49).

Such relatively frequent legislation indicates that the government was not entirely effective in enforcing these laws. Indeed, from 415 it is apparent that the authorities gradually yielded to the pressure of fanatical Christians. In 415 Theodosius II prohibited Gamaliel VI from establishing new synagogues and ordered him to destroy the synagogues in unpopulated places (No. 41). He turned this specific prohibition into a general one in a law from 423 (No. 47); however, he did recognize the right of the Jews to keep and maintain their existing synagogues. This legal arrangement was to govern the syna­gogue problem in the future. Under burdensome restrictions, it guar­anteed the continued existence of synagogues but prevented the con­struction of new ones. The intention being to stop the expansion and growth of the Jewish religion (see also No. 49 from 423 and No. 54 from 438). In a law from 535 (No. 62), an isolated and untypical act, Justinian prohibited the maintenance of synagogues in Africa and ordered that they be converted into churches. In a law from 545 (No. 65), he again prohibited the construction of new synagogues, but his involvement in the synagogal liturgy in a law from 553 (No. 66) clearly indicates that the existence of synagogues and their regular functions were still guaranteed by law. The Justinian Code contains two explicit laws relating to this point. One granted the existing syna­gogues full protection (No. 46), while the other prohibited the con­struction of new synagogues, but allowed the repair of old ones (No. 54).

In direct relationships between the administration and the Jew as an individual—outside of the institutional framework of Judaism—the legislator became involved in two main problems: the extent of both the political and the legal capacities of the Jews.

B. Political Capacity of the Jews

This was reflected in the extent of the individual’s rights and duties to take part in the municipal government and in the Imperial administra­tion, in civil or military functions. The pagan legal tradition on this subject was unequivocal: Jews were allowed to take part in govern­mental functions, and were obligated to undertake liturgies, unless this involved a profanation of their religious law (Nos. 2 and 4).

Municipal Administration—To the best of our knowledge, Jews were found in the second and third centuries within the orbit of mu­nicipal government both in Palestine and in the diaspora. This was unavoidable in those urban areas of Palestine which were exclusively or predominantly Jewish, but Jews served in the curias in the diaspora as well. During those centuries the duties involved in municipal gov­ernment still entailed various benefits and honours, and had not yet become the heavy personal and financial burden documented by later sources. There is explicit testimony in a law of Constantine from the year 321 (No. 7) that until that time the Jews did not serve in the curias, by reason of “the ancient custom.” While the Pagan govern­ment did not require the Jews to serve in the curias, and recognized the exemption that had been granted to them, it did not prevent those Jews who were interested in doing so from serving as decurions.

In 321 this situation changed completely, and service in the curias was imposed upon the Jews, just as it was on other groups in the population. Jewish efforts in this area were restricted to obtaining exemptions for the leadership level only (see above). In a law from 330 (No. 9) certain office-holders in the communal self-government re­ceived such an exemption from Constantine, and it remained in force until abolished by Gratian in 383 (No. 15). Arcadius renewed the exemption in the East in 397 (No. 27), and there is also evidence that the Jews of Apulia and Calabria alleged this law when they claimed exemption from serving in the curias. In an explicit law from 398 (No. 29) Honorius abolished this exemption in the West, and stated that the curial obligation was incumbent upon the Jews. Arcadius, in a law from 399 (No. 31), did not abolish the exemption, but reemphasized that the curial duty was obligatory on those Jews who were subject to it. This situation remained unchanged by the law from 438 (No. 54), which dealt with those who were already decurions at the time of the promulgation of this law.

The situation of the Jews in the East in the sixth century was en­tirely different. The editors of the Justinian Code conserved both the 383 abolition of the exemption of Jewish “clergymen” from the litur­gies of the curias (No. 15), and the more comprehensive repeal from 398 (No. 29). At the same time, they received the rulings of Arcadius from 399 (No. 31) and of Theodosius II from 438 (No. 54) that all those Jews who were obligated to serve in the curias should do so in practice. When Jews and others raised the argument that since they were disqualified from serving in government offices, they ought to be exempt from the liturgies of the curias, Justinian responded in 537 with the ruling that they were in fact required to perform this service “even if they bitterly wail,” and in the future they would not enjoy the benefits attached to the status of decurion, but would be expected to bear the burdens which the status entailed (No. 64).

Thus, the political capacity of the Jews in the municipal sphere evolved in three stages: collective exemption in practice in the early fourth century; equalization of their status to that of the rest of the population in the fourth and fifth centuries; and legal discrimination from the beginning of the sixth century.

The Imperial Administration—There is no extant law prior to the fifth century which prohibited the service of Jews in the Imperial ad­ministration. In a law from 404 (No. 33) Honorius expelled Jewish and Samaritan Executive-Agents from the service, but this text is too ambig­uous to warrant the conclusion that from that period the office of Executive-Agent was closed to Jews and Samaritans. The first legal expulsion of Jews from the Imperial administration was decreed by Honorius in 418 (No. 45). From then on, it was prohibited for Jews to serve as Executive-Agents, Palatins, or soldiers. It is evident from the phrasing of the law that at that time Jews had been serving in these three branches. Honorius had permitted Jews to practice law, but this occupation was subsequently closed to them in a law introduced by Valentinian III, in 425 (No. 51), which reiterated the ban on the ser­vice of Jews (and pagans) in the Imperial administration. The ban was repeated in a law of Theodosius II from 438 (No. 54), but by this law the legislator allowed Jews to serve in the lower offices of Cohortalins and Apparitors, which were in fact closer to compulsory liturgies. These prohibitions were not observed in practice, as Justinian criti­cized the officials in 527 (No. 56) for not strictly carrying out these prohibitions, and reimposed the prohibitions on the admission of a pagan, Jew, or Samaritan into any post of honour, adding: “nor shall he put on an official belt, neither civil nor military, nor belong to any office, with the exception of that of the so-called Cohortalins ... neither do we allow them to be joined to the most learned advocates.” Another law of Justinian, from 537 (No. 64), mentioned only the post of ‘taxeota’ as being open to the Jews.

In this area, too, the legal texts testify to the drastic limitations placed upon the political capacity of the Jews in the fifth and early sixth centuries. However, there is considerable ground for doubt re­garding the extent to which these bans were enforced.

C. Legal Capacity of the Jews

This was reflected in the rights and duties of Jews to turn to the general courts in their disputes with individuals and with the State authorities. There is no explicit testimony concerning this subject prior to 398, when Arcadius ruled (No. 28): “The Jews, who live under the Roman common law, shall address in the usual way the courts in those cases which do not concern so much their superstition as court, laws and rights, and all of them shall bring actions and defend themselves under the Roman laws.” The special Jewish court system was thereby restricted to cases concerning religion, or to civil cases which both litigants agreed to bring before the Jewish juridical authority. From this time the legal capacity of the Jews was practically equal to that of the general population. Significant evidence of this situation is found in a law of Honorius from 412 (No. 40) which indicated that Jews were in fact carrying out litigation with individuals and governmental authori­ties in the general courts, in accordance with ‘publicae leges’, “public laws.” The continued activity of Jewish lawyers, who were allowed to practice law after 418, when other branches of the administration were closed to Jews (No. 45), is another indication pointing in the same direction. Even after they were officially excluded from this profession in 425 (No. 51), Jewish laywers continued to practice, as is indicated by a law from 527 (No. 56) in which Justinian, together with other prohibitions against Jews and others, reinstated this ban.

The breakdown of the arrangement of 398 began in 415, when Theodosius II forbade the patriarch to judge between Jews and Chris­tians—referring, apparently, to civil cases which previously could be adjudicated by the patriarch upon the agreement of both litigants—and ruled that cases of this type must go before the provincial governors (No. 41). While this law did not prejudice the legal rights of Jews in comparison with those of non-Jews, it does represent the beginning of a trend to link legal procedures to the litigants’ religion, even if the case had no definite religious connotation either Jewish or Christian. Such an approach necessarily favoured the Christians and weakened the legal capacity of the Jews. This process began with explicitly religious topics, such as those connected with conversion to and from Judaism (see be­low). However, the main development towards preference for the Christians against the Jews in strictly secular matters occurred in the sixth century, and represented another aspect of the general change in the official attitude towards Jews. In marked contrast with fourth cen­tury usage, in the sixth century the chancellery tended to deal with Jews together with heretics and pagans, and this association is a clear evi­dence of the new attitude. In response to a request by judges, Justinian ruled in 531 (No. 60) that heretics and Jews were disqualified from giving testimony against Orthodox Christians in cases in which at least one party was an Orthodox Christian, while they were permitted to do so in those cases in which the litigants were Jews or heretics. Likewise, Jews and members of certain Christian heretical sects were qualified to testify in court concerning contracts and testaments. In a law from 537 (No. 64), Justinian reaffirmed the rule that Jews and heretics were disqualified from testifying against Orthodox Christians. He interpreted the rule in such a manner that would allow the testimony of Jews and heretics against Orthodox Christians in those cases in which the State acted as the plaintiff. This interpretation was given in response to a request of the Praefectus Praetorio of the East, who reported that judges encountered difficulties concerning this matter. We may, there­fore, conclude that the restrictions imposed by the legislator regarding the legal capacity of the Jews were applied in practice. Economic and religious aspects were combined in a law of Justinian from 545 (No. 65), which forbade the sale or transfer of property including a church to a Jew, pagan, Samaritan, or heretic. If such a sale was completed it was deemed null and void and the property reverted to the local church.

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