5 On the Authority of Judges
A Rescript to Juda from Diocletian (Maximian, Galerius, and Constantius)
27 December 293
This rescript, issued by Diocletian in his name and in the names of his colleagues on 27 December 293, probably at Sirmium, was addressed to a certain Juda.
It was probably drafted by the jurist Hermogenian.1 Its gist has been transmitted by the Justinian Code (CJ 3:13:3), but nothing is known about the specific circumstances that motivated the appeal to Diocletian and those that determined his response. It is reasonable to suppose that Justinian’s editors received it from Codex Hermogenianus, published in early 295, whose first edition included only laws from 293-294.2 While there is no specific reference to Jews in the rescript’s text, the typically Jewish name of the addressee, Juda, seems to indicate an original Jewish context which was suppressed by the editors of Codex Justinianus, but this hypothesis has been rejected by several historians, who maintain that the addressee could have been Christian or even pagan.The rescript’s objective can be better understood once it is examined in the larger context of its chapter in the Codex Justinianus, which dealt with the jurisdiction of magistrates. Diocletian’s rescript should thus be interpreted in reference to a law from 214 (No. 1 of the same chapter), which established the rule that a procurator who acted as a judge (iudex) with the agreement of both parties was authorized to judge in their case for two reasons: (a) because he already enjoyed a certain competence to judge by virtue of his office; and (b) because both parties elected him as judge. It is to be deduced, consequently, that he would have been incompetent to judge if both elements, or only one of them, were missing.
This is, in fact, the principle established in Diocletian’s rescript; the agreement of both parties in itself does not confer the competence to judge on one who lacks such a competence, and his decision lacks, therefore, any legal force.Dinur, Albee, and Rabello think that this rescript was addressed to the Patriarch Juda III, and that it constituted an intervention by the authorities in support of the patriarch in his dispute with the Sages on the subject of nomination of Sages and judges. Diocletian decreed, according to this view, that judges not nominated by the patriarch lacked all authority and should be considered as private citizens. Dinur maintained that this clash resulted in the evolution of two separate judicial systems, one presided by the patriarch and recognized by the Imperial authorities, while the other—that of the “Jews” (i.e., the Sages)—lacked this recognition. Albee, on the other hand, was of the opinion that that intervention convinced both parties to the dispute of the need to arrive at a compromise, and that they consequently evolved a procedure in which both the patriarch and the Sages shared in the nomination of judges. Juster and Alon, on the other hand, rejected both the identification of “Juda” with Juda III and the interpretation which depended on it. Visky’s discussion of this law also ignores any specific Jewish context.
Codex Justinianus, 3:13:3, ed Krüger, p. 128
IDEM AA ET CC * IUDAE
Privatorum* consensus iudicem non facit eum, qui nulli praeest iudicio, nec quod is statuit rei iudicatae* continet auctoritatem.
S. VI K. IAN. AA. CONSS.*
THE SAME TWO AUGUSTI AND CAESARS3 TO IUDA
The agreement of private individuals4 does not make a judge one who is not in charge of any jurisdiction, neither has his decision the force of legal verdict.5
WRITTEN ON THE SIXTH DAY BEFORE THE CALENDS OF JANUARY, IN THE CONSULATE OF THE TWO AUGUSTI.6
NOTES
1. T.
Honoré, “ ‘Imperial’ Rescripts a.d. 193-305—Authorship and Authenticity,” JRS, LXIX (1979), p. 64.2. M. Amelotti style='font-size:8.5pt'>Per l’interpretazione della legislazione privatistica di Diocleziano, Milan 1960, p. 9.
3. Caesars: this rescript was issued in the names of the four rulers who shared the Empire according to the 293 agreement: the two Augusti Diocletian and Maximian, and the two Caesars Galerius and Constantius. The inscription, with this fourfold nomination, is typical to all the laws issued by Diocletian and Maximian after 292. See E. Volterra, “Suile ‘inscriptiones’ di alcune costituzioni di Diocleziano,” BIDR, Series 3, LXXVI (1973), pp. 248-251.
4. ‘Privati’ are individuals not invested with any public office. This meaning of the term is confirmed by law number one in this chapter of Codex Justinianus, which deals with two parties who nominated a procurator to judge between two private individuals in a case with which the treasury was not concerned (see also the distinctions between ‘privati’ and ‘militantes’ in CTh 4:4:5, and between ‘vita magistratuum’ and ‘vita privata’ in CTh 6:9:2). In this rescript, again, Diocletian referred to the two parties in litigation. Rabello, on the other hand, believes that the reference is to the Sages in conflict with the patriarch, considered by the authorities as ‘privati’, not invested with any public authority, while the patriarch enjoyed such an authority. This interpretation is based on the assumption that the patriarchs were recognized by the Imperial authorities as holding publicly recognized jurisdiction over the Jews by the end of the third century.
5. Verdict: compare ‘Modestinus, libro septimo pandectarum.
Res iudicata dicitur, quae finem controversiarum pronuntiatione iudicis accipit; quod vel condemnatione vel absolutione contingit’. “Modestin, in the seventh book of the Pandects: res iudicata is called that which signifies the termination of controversies through a verdict by a judge, be it condemnation or acquittal” (Dig. 42:1:1); ‘Idem libro primo ad legem luliam et Papiam... quia res iudicata pro veritate accipitur’. “The same (Ulpian) in the first book on the lulius-Papius Law... since res iudicata is accepted as the truth” (Dig. 1:5:25). Compare also “R. Hiyya bar Abba said in the name of R. Yohanan, he who pleads after an act of the court says nothing” (BT, Baba Mesia 17:1).6. Augusti: 27 December 293. This was the fifth consulate of Diocletian, the fourth of Maximian, and the only year indicated by ‘AA conss.’. See T. Mommsen, Gesammelte Schriften, II, Berlin 1905, pp. 277-279. The rescript was certainly issued at Sirmium, for Diocletian stayed there from September to the end of the year, with the exception of a short absence in November, and he issued there laws on 26 and 28 of December (ibid., p. 280). See I. Koning, “Die Berufung des Constantius Chlorus und des Galerius zu Caesaren; Gedanken zur Entstehung der Ersten Tetrarchie,” Chiron, IV (1974), p. 573.
BIBLIOGRAPHY
Juster, II, pp. 104-105 n. 4; B. Dinaburg, “Diocletian’s Rescript to Juda from 293 and the Struggle between the Patriarchate and the Sanhedrin in Palestine,” Studies in Memory of A. Gulak and S. Klein, Jerusalem 1942, pp. 76-93 (in Hebrew); H. Albeck, “Semikha and Minui and Beth Din,” Zion, VIII (1942/43), pp. 85-93 (in Hebrew); Kaser, RZPR, pp. 184 n. 44, 363 n. 11, 381 n. 12; Rabello, “Tribute,” p. 228 n. 50; idem, “Sui rapporti fra Diocleziano e gli Ebrei,” Atti deir Accademia Romanistica Constantiniana (2 Convegno Internazionale, 1975), Perugia 1976, pp. 157-197; K. Visky, “Appunti su alcuni rescritti di Diocleziano relativi alla competenza nella procedura civile,” ibid., p. 307; Avi-Yonah, p. 121; G. Alon, “Those Appointed for Money,” in Alon, Studies, pp. 433-435.