I Terminology and Guiding Principles

The laws follow the Latin usage in using consistently the term Tu- daeus-Iudaei’. Justinian was the first legislator to introduce the Greek term Εβραίοι in 536/537 (No.

The pair ‘religio-superstitio’ signifies two aspects of one phenome­non, religion, as a complex set of beliefs and practices reflecting man’s attitude to the supernatural. In classical Latin ‘religio’ expressed either positive value judgments or an objective attitude devoid of any value­judgment. ‘Superstitio’, on the other hand, signified mainly religions different from the Roman religion or hostile to it, and it expressed, consequently, mainly negative value-judgments. The fundamental dif­ference between the two terms has been preserved in Christian Latin, though it acquired a new Christian content. While ‘religio’ was applied to the Christian religion alone, the one and only true religion, ‘super­stitio’ was reserved for all non-Christian religions, seen by definition to be superstitions. In a law dated 342 Constans demanded, indeed, that “every superstition must be entirely uprooted” (CTh 16:10:3), a clear reference to non-Christian religions.

Both ‘religio’ and ‘superstitio’ were employed by the classical jurists to indicate the Jews. While Modestin qualified them as those that take part in “that... ‘religio’ ” (No. 1), Ulpian refers to “those that follow the Jewish ‘superstitio’ ” (No. 2). Later legislators still made use of both terms in reference to the Jews, selecting one or the other accord­ing to the spirit of the law enacted.

The religious content of both ‘religio’ and ‘superstitio’ in these texts is sufficiently highlighted by the general context in which both terms are found. A law dated 397 (No. 27) referred to ‘eius religionis sacra­mento’, “in the rite of that religion,” and another law of 416 (No. 43) dealt with Tudaicae religionis homines’, “men of the Jewish religion” who wished to undergo baptism. The same order of ideas was in evi­dence in a law from 415 (No. 42), which allowed the Jews to own Christian slaves on condition that the slaves be permitted to keep their ‘propria religio’, “their proper religion.” The religious content of both terms becomes even clearer, and in no need of inference from the general context, in certain laws that referred to it explicitly. In a law from 392 (No. 20) the legislator reserved Jewish religious cases for the cognizance of the Jewish patriarchs, clarifying the religious content of the term ‘religio’ by specifying that judgment in these cases belonged to their ‘legis primates’ “Primates of their Law.” The same principle was applied in a law from 398 (No. 28), which distinguished between cases concerned with the ‘superstitio’ of the Jews and those that re­lated to ‘forum et leges et iura’ and were, consequently, under the sole jurisdiction of the Roman court. The Visigothic Commentary offered the right explanation, when it specified that the Jews were “to litigate before the Heads of their religion only on what concerns the discipline of their religion.” Valentinian III highlighted the religious content of both terms when he warned, in 425 (No.

Religious content was qualified in several texts; some references were restrictive, others were of a more general application. Origin as a criterion of Jewishness appeared in Modestin’s insistence that the Jew­ish religion was legally limited to Jews by origin, and he interpreted in this light Antoninus Pius’ privilege to the Jews (No. 1). Paul, too, distinguished between Jews, ‘cives Romani’, that is, “non-Jewish free­men,” and “slaves of another nation” who are not to be circumcised (No. 6). The choice of the term ‘natio’, with its connotation of biologi­cal origin, was of course highly significant in this regard. Other texts, however, suggested a tendency to broaden the scope of the concept of a “Jewish religion” in application, though not in regard to the recruit­ment of proselytes. One law included economic activity within the scope of the Jewish religion, forbidding persons foreign to the religion of the Jews from establishing prices to merchandise belonging to Jews, on the ground that “it is just to assign to each man what is his own” (No. 23, dating from 396). Jewishness as a way of life was indicated by a law dated 418 (No. 45), which referred to Jews as those that live (yiventes) in the “Jewish superstition.”

Both terms, ‘religio’ and ‘superstitio’, were applied to the Jews in legal documents until 416. From that date the chancellery reserved ‘religio’ for the Christian religion alone and applied ‘superstitio’ to the Jews, further enhancing its negative content through the use of various pejorative adjectives. In 417 the legislator referred to “slaves who partake in the right religion and are held under the rule of the nefari­ous superstition” (No. 44), and he underlined the opposition between the two terms in 426 (No. 52) when he described baptized Jews as persons “crossing over... from the darkness of their proper supersti­tion to the light of the Christian religion.”

‘Secta’ is another term applied to the Jews in the legal texts, but, unlike the pair ‘religio-superstitio’, it did not evolve in the religious sphere.

The religious connotation of ‘secta’ is equally obvious in laws which dealt with religious subjects, and in texts which juxtaposed this term with synonyms of an unmistakable religious content, such as ‘religio’ and ‘lex’. In 330 Constantine defined the Jewish clerics as “those who preside over the Law” while living in this “sect” (No. 9). In 392 (No. 20), Theodosius I affirmed the exclusive right of the patriarchs to excommunicate Jews and to readmit excommunicated persons, refer­ring to a specific case in which such persons were readmitted to their “sect” despite the opposition of “their Primates of their law,” who alone were authorized “to pass judgement concerning their religion.” In another law, dated 393 (No. 21), he ordered the provincial gover­nors to protect synagogues on the grounds that “the sect of the Jews is prohibited by no law.” Theodosius II forbade the circumcision of Christian slaves by their Jewish owners in a law dated 417 (No.

A few infrequently used terms suggest that the Jews were also rec­ognized on grounds other than their religion. ‘Gens’ occurred in a law dated 418 (No. 45), and it indicated origin as a criterion of Jewishness. Likewise ‘natio’ in two early texts (Nos. 6 and 11). ‘Populus’, on the contrary, pointed to the voluntary association of persons not associated by a common biological origin; it designated the Jews in a single law, dated 412 (No. 40). From the examination of the terminology used by the chancellery in regard to the Jews, therefore, it is evident that the legislator recognizes them primarily as a religious entity, with its dis­tinct cult, priesthood, judicature, mores, and places of worship. The legal maxim “The Jews shall be bound to their rites,” enunciated in 397 (No. 27), expressed this attitude. It suggested, furthermore, that the Jewish religious entity had not been limited to a specific geographic area and that its special status was valid throughout the Empire, secur­ing rights and imposing special duties and limitations, analogous to that of the Christian religion and to the Christian sects. Our texts share the idea that a religion is a voluntary and universal community. The origin-qualification was a later addition, and not entirely consistent with the ideas prevalent in the chancellery as to what actually consti­tuted a religion.

The attitude of the chancellery toward the Jews can be studied through the language it employed: the nouns, the adjectives, and the verbs it used to express its value-judgments of them. The extant laws present a considerable body of evidence of this type, although the greater part of the relevant adjectives and the rhetorical constructions were rewritten and reorganized in the process of revision by the codi­fiers. The examination of these sources leads to the conclusion that all the adjectives applied to the Jewish entity, whether as a sect or as a religion, and most of the nouns and verbs used in this connection are negative or hostile. Constantine was the first Roman legislator to char­acterize the Jewish “sect” as ‘feralis’ and ‘nefaria’ (No. 8); subsequent legislators in the fourth and fifth centuries adopted a similar style. The language employed in the sixth century texts was substantially identi­cal, but their usefulness is somewhat problematical in this specific con­text because it is almost impossible to isolate the language employed in regard to the Jews from that directed towards pagans and heretics in laws that deal with all three groups in common.²

One group of words charged with a negative evaluation of the Jews expressed the idea that the Jews opposed the “True Religion” willfully and intentionally. Most of these words are composites with prefixes of opposition. This group includes the following words: ‘sacrilegus’, “sac­rilegious” (Nos. 12 and 36); ‘incredulitas’, “incredulity,” in contrast to ‘fides Christiana’ (No. 39); ‘impietas’, “impiety” (No. 50); ‘impiissimi’, “the most impious,” in contrast to ‘religiosissimi’ (No. 48); ‘nefarius’, “nefarious,” as a synonym of ‘sacrilegus’ and ‘impius’ (No. 8); άσεβεια, “Godlessness” (No. 13).

Another group reflected the belief that the Jews represented the absolute negation of a whole series of positive values comprehended in a predominantly religious context, such as wholesomeness, health, pur­ity, life, honour, wisdom, and sanity. The Jews were depicted as repre­senting the opposite—deformity and illness, pestilence, filth, abomina­tion, death, infamy, and madness. This included the following words: ‘turpitudo’, “turpitude,” a synonym of ‘deformitas’ (No. 11); ‘perversi­tas’, “perversity” (No. 45); ‘contagium’, “disease,” “contagion” (No. 16); ‘polluere’, “pollute” (Nos. 16 and 39); ‘pestis... contagione emanet’, “a plague... that spreads by contagion” (No. 37); ‘attami­nare’, “to contaminate” (No. 17); ‘foedare’, “to defile” (No. 41); ‘in­quinare’, “to defile” (No. 48); καθαρεύειν, “to purge (from Jews)” (No. 56); ‘execrandus’, “execrable” (No. 54); ‘caeno confundere’, “corrupt with filth” (No. 44); ‘flagitium’, “deed of disgrace” (No. 11); ‘sensibus excaecatus’, “senseless,” in contrast to ‘sanitas mentis’ (No. 54); ‘amentia’, “madness” (No. 50); ‘vecordia’, άθλιον, “insanity” (No. 64); ‘stultitia’, άνοια, “stupidity” (No. 64).

A smaller group consisted of words with a political content, and it expressed the idea that the Jews were hostile to the Roman Empire and its regime. They were stigmatized as ‘alieni Romano imperio’, “alien and hostile to the Roman Empire” (No. 39), as ‘Romanis legi­bus inimici’, “enemies of the Roman laws” (No. 54), as motivated by ‘spiritus’ and ‘audacia’,³ by the spirit of arrogance and revolt and by the will to destroy the social and political order for personal advantage (No. 48).

Religious sentiments animated this strong condemnation of the Jews. Most of the pejorative terms which applied to the Jews appeared in laws dealing with proselytes, in a context of comparison between Judaism and Christianity (Nos. 8, 11-12, 16-17, 39, 41, 44, and 54). As the Christianization of the Empire progressed, however, and paral­lel to the growing identification between Christianity and Empire, the condemnation of the Jews was redefined in political terms. Preserving its essentially religious character, this definition was adjusted to the new political and legal system, with far-reaching consequences on the status of Jews, as individuals and as a collective entity.

color=black face="Times New Roman">The attitude adopted by the legislator towards the Jews can be appreciated by considering whether the chancellery dealt with them separately, or associated them with other groups and in a wider frame­work. This aspect of the original legislation was obscured by later codifications, which involved a considerable rearrangement of the original sources. Entire laws were divided and subdivided into shorter and partial texts. Only a careful reconstruction of the original laws, and the information provided by a handful of laws preserved in their entirety, can clarify this problem.

From 390 the chancellery associated Jews and Samaritans together, on the assumption that they shared a common religion, or that their religions were close enough to warrant an equal status in law (Nos. 19 and 33). Valentinian III acted on this principle in a law dated 426, which dealt with children “of a Jew or of a Samaritan,” who “shall cross over... from the darkness of their proper superstition to the light of the Christian religion” (No. 52). Theodosius II still distin­guished between the religion (lex) of the Jews and that of the Samari­tans, but his Third Novel, dated 438, joined together Jews and Samari­tans on the one hand, and pagans and heretics on the other (No. 54). His codifiers, too, associated Jews, Heaven-Fearers and Samaritans in the title of the chapter allocated to the Jews in the Theodosian Code (CTh 16:8), and the same title was adopted in the Breviarium of Alaric (Brev. 16:3). This tradition continued for a time in Justinian’s chan­cellery, for his early laws dealt with them together, with the Jews usually preceding the Samaritans. However, the language as well as the content of these laws prove that the Samaritans were no longer considered to be a Jewish sect, but a separate religion, similar to the other sects and religions in its hostility to Christianity and to the Chris­tian Empire. In a law dated 527 (No. 56) the legislator associated together “heretics... Pagans, Jews, Samaritans, and those similar to them,” and again, in a law issued 527-534 (No. 59): “A Pagan, Jew, Samaritan, and anyone who is not Orthodox.” A sharp distinction between Jews and Samaritans can be seen in a law dated 531 (No. 60), by which Justinian allowed certain heretics and Jews some kinds of legal actions while denying all legal actions to pagans, the remaining heretical sects and the Samaritans. Justinian’s codifiers, in effect, transferred laws relevant to Samaritans to the chapter dealing with heretics and Manichaeans (CJ 1:5). The distinction between Samari­tans and Jews signified a deterioration of the Samaritans’ legal status, one element in a consistent Imperial policy aimed at the suppression of the Samaritan entity and at the forceful Christianization of the Samari­tans, a policy sufficiently documented in other sources.

The extant documentation suggests that until the beginning of the fifth century the chancellery dealt with the Jews on solely Jewish mat­ters in separate laws. A few laws referred to the Jews in connection with general problems bearing on the Jews together with other groups, e.g., exemptions from curial liturgies (Nos. 15 and 31, dated 383 and 399). Most of them, however, were similar to the law of 335 (No. 10), which dealt with problems related to baptized Jews and proselytes, hence to specifically Jewish problems. The first law to associate Jews with pagans was promulgated by Gratian in 383 (No. 16), but not until 408 was there a similar association. A law by Honorius of that year dealt with Jews together with Donatists and heretics (No. 37), and from that date the chancellery associated Jews, Pagans, and heretics in its laws. This triple pattern appears in most of the laws bearing on the Jews which were promulgated between 408 and 545. The usual order is “Jews, pagans, heretics” (Nos. 48, 49, 54, 61, 62, and 65), but one also finds “heretics, Jews, pagans” (Nos. 38 and 51), or even dual patterns, such as “Jews and pagans” (Nos. 50 and 52) or “Jews and heretics” (No. 60). The change in the chancellery usage goes much deeper than the level of the professional draftsmen employed in preparing these laws. It indicates a fundamental change in the Jewish policy of the Imperial government towards the beginning of the fifth century, and was bound to affect the legal status of the Jews during that period. Throughout the greater part of the fourth century the Jews still bene- fitted from the legal status Tertullian defined as ‘religio licita’, a reli­gion recognized and protected by the State. By the end of that century, however, the State tended to assimilate them into other religions and sects prohibited, or severely restricted, by law, and to apply to the Jews interdictions and restrictions formerly applied against pagans and heretics only. This tendency motivated specific laws as well as later interpretations of laws that were promulgated under the old regime of ‘religio licita’ (No. 60).

One can study the attitude of the legislator to the Jews from yet another angle by examining the legal principles quoted in these laws. They throw some light on the ideas prevalent in the government con­cerning the status of the Jews, or, at least, on the ideas the authorities professed to be following in the propaganda they directed towards the public. The greater part of this material did not survive the codification stage, for the propagandistic elements of the laws, usually concen­trated in the preambles but occasionally inserted into other clauses, were the first to be deleted by the codifiers. Enough material has survived, however, in the codes and in a number of complete laws, to allow us a reasonable certitude on this matter.

Many laws asserted that they followed an established legal tradition. A law shared, by definition, in the plenitude of powers and the “eter­nity” of the legislator, but while the “eternity” of the legislator assured the future validity of the law, it also implied that old laws retained their validity unless expressly repealed or modified by later legislation. Legal conservatism was another facet of the theoretically unlimited powers the Emperor enjoyed in the legislative sphere. Even innovative legislation was represented as a mere reissue of old laws or as an essentially homogeneous continuation, and even when legislators did not try to disguise the innovative character of their legislation they usually made some allowance for custom and tradition.⁴ In 321 Con­stantine repealed the exemption from curial liturgies that the Jews had enjoyed in the West, but allowed them to retain a very limited exemp­tion as a remnant of their ‘pristina observatio’, “ancient custom” (No. 7). Honorius repealed, in 404 (No. 34), the interdiction on collecting the Aurum Coronarium for the patriarchs, which he had imposed in 399, reminding the public that this payment was collected in the past ‘ex consuetudine’, “according to custom.” The same Emperor de­clared, in 412 (No. 40), the Sabbath as an official day of rest for the Jews, alleging the authority of ‘vetus mos et consuetudo’, “the ancient custom and usage.” Many legislators declared that they were bound by the old laws and that they were endeavouring to ensure their imple­mentation. Such declarations were made by Arcadius (No. 27 from 397; No. 32 from 404); and Honorius (No. 34 from 404; No. 35 from 407; No. 38 from 409; No. 40 from 412; No. 43 from 416). Justinian demanded in 527 (No. 56) that “what was already laid down in the laws shall be recalled and made firmer through this present law.” At the same time, he congratulated himself on having made no innova­tions but on having restored the old law. Others claimed that their legislation conformed to the old laws and that it assured the continuity of legal tradition. This claim was to be found in laws promulgated by Honorius (No. 43 from 416), Theodosius II (No. 48 from 423), Justin and Justinian (No. 56 from 527; No. 62 from 535; and No. 64 from 537).

Several laws promulgated between 390 and 423 were an effort to protect the Jews against illegal persecution. They were motivated by the principle that the response of the authorities to situations of this kind should be determined by general legal principles, whose validity extended to the Jews as well as to other subjects of the Empire. The rule that a duty imposed on a collectivity cannot be imposed on an individual member of that collectivity convinced Theodosius in 390 (No. 19) that the duty of naval transport of grain imposed on the Jewish and Samaritan communities in Egypt was illegal. In a law dated 393 (No. 21) he deduced, from the legal affirmation that “the sect of the Jews is prohibited by no law,” that any interdiction on assemblies in synagogues or any attack on synagogues was illegal. When Arcadius prohibited non-Jews from establishing prices to merchandise owned by Jews he referred to the maxim that “it is just to assign to each man what is his own” (No. 23 from 396). A similar principle was adduced by Honorius in 412 (No. 40), namely that “all must retain what is theirs with unmolested right and without harm to religion and the cult.” In 420 Theodosius II extended his protection to the Jews against illegal persecution, declaring that “even if someone is entangled by his crimes, the vigour of the courts and the protection of public law appear to have been instituted for that very reason, that no one shall have the power to permit himself to take vengeance” (No. 46). In 423, again, he

warned Christians not to injure “peaceful Jews and pagans who are not attempting anything seditious or unlawful” (No. 49). In all these cases the emperors protected the Jews on grounds of general principles of justice and law, either because they were genuinely motivated by them, or because they judged them to be useful propaganda.⁵

Opposite views guided some legislators in a different direction. Con­vinced that the Jews were not entitled to the law’s protection, that they were excluded by law from the body politic, these legislators assigned the Jews a legal status that was inferior to all other citizens. It would be impossible to determine whether this conception was adopted by the chancellery in a stage later than the preceding conceptions, with the deterioration in the status of the Jews beginning with the fifth century, or whether it was present in the chancellery concurrently with the others. If the second hypothesis is adopted, the laws that guaran­teed protection to the Jews should be seen as motivated by the more positive conceptions, while the discriminatory laws were obviously in­spired by the negative ones.

Such a conception was defined clearly in a law issued by Honorius in 409 (No. 39). “Jewish perversity” was declared to be “alien to the Roman Empire,” and the rule was laid down that “anything that dif­fers from the Faith of the Christians is contrary to the Christian Law [religion].” Once this principle was accepted it was bound to lead to restrictions on the civil rights of the Jews, and eventually to the com­plete abrogation of their status as citizens of the Empire, with the consequent diminution and disappearance of the protection the law guaranteed to them as citizens. When Honorius, in a law dated 418 (No. 45), prohibited Jews from any government employment, with the exception of the municipal curias and the legal profession, he main­tained that the Jews should rest content with these two employments and that the general prohibition was not to be interpreted as a mark of infamy. This suggestion, even when taken at its face value, ignoring its ironic undertones, proclaimed, in effect, that the Jews were considered by the legislator to occupy a particular—and a decidedly inferior—rung of the legal and political hierarchy, for all other citizens would consider a prohibition of this character to be an unmistakable mark of infamy. The principle declared in 409 reappeared in 438 (No. 54) when Theo­dosius II justified discriminatory measures against the Jews and the Samaritans by insisting that they were “enemies of the Supreme Ma­jesty and of the Roman laws.” It was completely adopted in the sixth century. In 527 Justin and Justinian formulated this principle in a way that was bound to prove particularly dangerous whenever it was adopted unreservedly: “we call heretic everyone who is not devoted to the Catholic Church and to our Orthodox and holy Faith” (No. 56). They declared, in the same law, that they intended to equate by law the social and political status of every individual with his religious situation, “it shall be possible for all to perceive... that even what pertains to the human advantages is witheld from those who do not worship God rightfully.” The same spirit moved Justinian to declare, in a law issued immediately after the reconquest of Africa, in 535 (No. 62), that the Jews and the heretics must be content with merely “stay­ing alive.” The idea that an individual’s legal status depended on his religious situation was redefined in a law from 537 (No. 64): Jews, Samaritans, and heretics “shall not enjoy any honour [public office], but... remain in that dishonour in which they also desired their souls to be.”

It is reasonable to suppose that on several occasions the legislator hesitated between these two opposing conceptions, between persecu­tion of the Jews and their protection, and that not infrequently he solved the problem on grounds of the general weal, or at least pro­fessed that to be the grounds for his decision. Indeed, when Theodo­sius II demanded in 438 (No. 54) that Jews and Samaritans be forced to serve as decurions and Cohortalius, apparently in contradiction to the general prohibition on employing them in any public office, he maintained that “it is appropriate that the Imperial Majesty should take care in all things that the public weal shall not be harmed in anything.”

The argument reappeared in Justinian’s permission, in a law from 531 (No. 60), to accept evidence from Jews and members of certain heretical sects in cases involving wills or contracts, even though they were generally disqualified to give testimony against Orthodox Chris­tians “because of the benefit of this necessary practice, lest the means of demonstration be reduced.” In another law, from 537 (No. 64), Justinian permitted Jews to testify against Orthodox Christians in cases in which the State appeared as the plaintiff, “as they testify appropri­ately in favour of the Orthodox State” (Greek rubric). There is a certain element of cynicism in these arguments; see, for example, the phrasing of a law from 418 (No. 45), in which Honorius allowed Jews to “enjoy the honour of the curial liturgies, which they possess by right of their birth’s prerogative and their families’ splendor,” at a time when liturgies were seen as compulsory services, quite lacking in hon­our. These assertions reflect a pragmatic approach within the chan­cellery, which often sought a middle path between the contradictory conclusions of these two conceptions.