20 On the Authority of the Heads of the Jews to Excommunicate and to Revoke Excommunications
Theodosius (with Arcadius and Honorius)
17 April 392
This law, given on 17 April 392 at Constantinople by Theodosius, in his name and in the names of Arcadius and Honorius, was addressed to Tatianus, Praefectus Praetorio of the East.
The traditional inscription seems to represent an erroneous attribution of the law by Theodosius’ editors, for Valentinian II died on 15 May 392. The correct inscription should have been “Valentinian, Theodosius, and Arcadius”, as in CTh 2:8:20, given on the same day. Its text has been preserved in Codex Theodosianus (CTh 16:8:8). Given in response to complaints presented by Jews, it recognized the exclusive right of the Jewish authorities in Palestine and in the Diaspora, headed by the patriarch, to excommunicate and to revoke excommunications. The Imperial authorities are denied any right in this matter. Although the specific case referred to is unknown to us, the legislation it triggered was of great importance, for it ennunciated a clear and comprehensive recognition of the organizational and legal autonomy of the Jews throughout the Empire, under the rule of the patriarchs, in all matters related to their religion. An identical interpretation was given in the Antiqua Summaria. On the supreme authority of the patriarchs in the matter of excommunications see the following halachic statements: “An excommunicated by the master is excommunicated for the disciple, an excommunicated by the disciple is not excommunicated for the master, an excommunicated by his own town is excommunicated for another town, an excommunicated by another town is not excommunicated for his own town, an excommunicated by the Patriarch is excommunicated for all Israel, an excommunicated by all Israel is not excommunicated for the Patriarch” (BT. Moed Katan 16:1). “An excommunicated by the master is excommunicated for the disciple, an excommunicated by the disciple is not excommunicated for the master. An excommunicated by a President of the Court is excommunicated for the Sage, an excommunicated by a Sage is not excommunicated for the President of the Court, an excommunicated by the Patriarch is excommunicated for all... We have learnt: if one of those who decreed his excommunication died, he shall not be freed from his excommunication. R. Ye- hoshua b. Levi said: this was said about a place where there is no Patriarch, but if there was a Patriarch there, the Patriarch shall free him” (PT., Moed Katan 3:1:81:4). Jewish sources confirm that the patriarchs employed excommunication as means to enforce their authority on the Sages during the Tannaitic period, and on the public at large during the Ammoraic period.1I. Baer saw our law as a measure of support to the primates against the judges, as representatives of the community in all matters pertaining to the reception of proselytes by the community, but this interpretation is not supported by the evidence. The judges our law refers to are, once again, the governors of the provinces and not the Jewish judges.
Theodosius addressed on the same day another law to Tatian (CTh 16:3:2), in which he repealed the prohibition imposed on 2 September 390 (CTh 16:3:1) on the entry of monks into towns, but we have no reason to consider our law and CTh 16:3:2 as two fragments of one and the same law.
Codex Theodosianus, 16:8:8, ed. Mommsen, p. 889
lang=EN-US style='font-size:9.0pt; line-height:115%;font-style:normal'>IMPPP. THEOIXOSIUS), ARCAIXIUS) ET HONOR(IUS) AAA. TATIANO* P(RAEFECTO) P(RAETORI)O ludaeorum querellae quosdam auctoritate iudicum recipi in sectam suam reclamantibus legis suae primatibus* adseverant, quos ipsi iudicio 5 suo ac voluntate proiciunt.
Quam omnino submoveri iubemus iniuriam* nec eorum in ea superstitione sedulus coetus* aut per vim iudicum aut rescribti subreptione* invitis primatibus suis, quos virorum clarissimorum et inlustrium* patriarcharum arbitrio manifestum est habere sua de religione sententiam, opem reconciliationis mereatur indebitae.10 DAT. XV KAL. MAI. CONSTANT(INO)P(OLI) ARCADIO A. II ET RUFINO CONSS.·
THE THREE EMPERORS AND AUGUSTI THEODOSIUS, ARCADIUS AND HONO
RIUS TO TATIAN,2 PRAEFECTUS PRAETORIO
In the complaints of the Jews it was affirmed, that some people are received in their sect on the authority of the judges, against the opposition of the Primates3 of their Law, who had cast them out by their judgement and will. We order that this injury4 should be utterly removed, and that a tenacious group in their superstition5 shall not earn aid for their undue readmission through the authority of judges or of ill-gotten rescript,6 against the will of their Primates, who are manifestly authorized to pass judgement concerning their religion, under the authority of the Most Renowned and the Illustrious patriarchs.7
GIVEN ON THE FIFTEENTH DAY BEFORE THE CALENDS OF MAY AT CONSTANTINOPLE, IN THE CONSULATE OF ARCADIUS AUGUSTUS FOR THE SECOND TIME AND OF RUFINUS.8
NOTES
1. See G. Leibson, “Determining Factors in Herem and Nidui (Ban and Excommunication) During the Tannaitic and Amoraic Period,” Annual of the Institute for Research in Jewish Law, II (1975), pp.
292-342 (in Hebrew); idem, “The Ban and Those under it: Tannaitic and Amoraic Perspectives,” ibid., V-VI (19791980), pp. 177-202 (in Hebrew).2. Tatian was nominated as Praefectus Praetorio of the East after Cynegius’ death, and held this office in the years 388-392 (probably until September 392). Most of the laws addressed to him betray a certain anti-clericalism, probably due to his personal adherence to paganism. See Haehling, p. 73; PLRE I, s.v., pp. 876878.
3. The collective term ‘Primates’ probably designated the office-holders in the synagogue and in the community, such as the Archsynagogue and the “Father of Synagogue.” Juster identified the ‘Primates’ with the “minor Patriarchs.” See Juster, I, pp. 403-404, and Rabello, below.
4. Injury: see above, No. 10, n. 8.
5. Superstition: a difficult passage. Mommsen changed ‘sedulus’ to ‘seclusus’, reading “a group excluded from that superstition,” but this correction has no support in the manuscript tradition.
6. Ill-gotten rescript: the legislator employed the term ‘subreptio’ in order to emphasize the devious means by which the rescript was obtained. The term ‘obreptio’ appeared in other laws with a similar connotation. Berger explains ‘obreptio’ as suppression of truth in order to obtain a rescript, while ‘subreptio’ would entail a false statement with that end in view. See A. Berger, Encyclopedic Dictionary of Roman Law, Philadelphia 1953, s.v. Obreptio, p. 605. De Francisci, on the other hand, explains both terms inversely of Berger.
See P. de Francisci, Sintesi storica del diritto romano*,style='font-size:8.5pt;font-style:normal'> Rome 1968, p. 556.7. Patriarchs: these titles testify to the high position of the patriarchs in the State hierarchy of status and office. The title ‘clarissimus’ was reserved, until the middle of the fourth century, to the highest magistrates and to the senatorial order. The title ‘illustris’ was introduced about 380 to designate the highest magistrates of the Empire. In practice both were usually combined until the end of the fourth century. See O. Hirschfeld, Kleine Schriften, Berlin 1913, “Die Rangtitel der römischen Kaiserzeit,” pp. 648-651, 662-666; R. Guilland, “La noblesse byzantine—Remarques,” REB, XXIV (1966), pp. 42, 45-46.
8. Given... Rufinus: 17 April 392.
BIBLIOGRAPHY
Godefroy, VI: 1, pp. 245-246; Juster, II, pp. 159-161; Seeck, Regesten, p. 280; Browe, p. 124; I. F. Baer, “The Origins of the Organization of the Jewish Community of the Middle Ages,” Zion, XV (1950), p. 5 n. 8 (in Hebrew); Seaver, p. 49; Lippold, PW, Suppi. XIII, 1973, s.v. Theodosius I, Col. 895; G. Leibson, “Determining Factors in Herem and Nidui (Ban and Excommunication) During the Tannaitic and Amoraic Period,” Annual of the Institute for Research in Jewish Law, II (1975), pp. 316, 320 (in Hebrew); Avi-Yonah, p. 217; Rabello, “Tribute,” p. 228 n. 50; Archi, p. 79 n. 55; Reichardt, pp. 33-34; Vogler, pp. 41, 54, 65.