4 On the Duty of the Jews to Undertake Liturgies Modestin
Beginning of the Third Century
This passage is a definition by Modestin, in his book Παραίτησις έπιτροπής καί κουρατορίας, of the status of the Jews in regard to liturgies according to the Imperial legislation.
It was quoted, and preserved, in the Digest (Dig. 27:1:15:6). The “laws” referred to by Modestin are probably those cited by Ulpian (above, No. 2), and attributed, there, to Septimius Severus and Caracalla. Modes- tin’s statement, which should be taken as reflecting the legal position on this subject in the Eastern provinces during the first two decades of the third century, was made in the course of his discussion of the exemptions from the duty of guardianship. He stated that Jews could serve as guardians of non-Jews, because guardianship was no different from the other liturgies. As a general rule the Jews were bound to serve in liturgies, provided that their religion was not thereby transgressed.This statement is of particular importance as evidence of the contemporary legal position on this subject, mainly because Modestin selected his material on the principle that new laws invalidated the old ones, but also on account of his exceptional meticulousness in reproducing exact legal quotations and citations. He quoted numerous laws in their entirety, usually from the works of Ulpian and Paul, or from the Greek versions made and issued by the Imperial administration. Jews probably tried to avoid guardianship of non-Jewish minors because this liturgy was liable to involve them in close ties with pagan society, and more particularly because guardians were held responsible for the education and morals of their wards.1 As this duty was bound to involve Jewish guardians with activities contrary to their religion, it probably motivated claims to exemption on grounds of religious incompatibility, which Modestin rejected in the present passage.
A possible reference to guardianship by Jews over non-Jews may be seen in the following passages from halachic sources (if the term D‘ID‘nU*’DK has in this case the meaning of “guardian” rather than “agent” or “administrator”): “A Jew who nominated a Pagan as guardian or as a Santar, it is allowed to borrow from him [the guardian] on interest, and a Pagan who nominated a Jew as a guardian or a Santar, it is forbidden to borrow from him on interest” (PT, Baba Mesia 5:5:23:1), while the Tosephta decided that “A Jew who became guardian or Santar to a gentile, it is allowed to borrow from him on interest, and a gentile who became a guardian or a Santar to a Jew, it is forbidden to borrow from him in interest” {Baba Mesia 5:20, Zuckermandel’s edition, p. 382).Digesta, 27:1:15:6, ed. Mommsen & Krüger, pp. 395-396
Idem libro sexto excusationum*
... *Ηδη δέ καί οί ’Ιουδαίοι των μή ’Ιουδαίων έπιτροπεύσουσιν,* ώσπερ καί τά λοιπά λειτουργήσουσιν* αί γάρ διατάξεις* έκείνοις μό- νοις άνενοχλήτους* αύτούς είναι κελεύουσιν, δι’ ών ή θρησκεία* 5 χραίνεσθαι δοκέί.
The same author, The Exemptions,2 Book VI.
Indeed, the Jews too shall serve as guardians3 to non-Jews, just as they shall serve in other liturgies; for the laws4 command that they should not be vexed5 by those liturgies only that seem to transgress their religion.6
NOTES
1. The moral aspect of guardianship was defined by Paul: ‘Cum tutor non rebus dumtaxat sed etiam moribus pupilli praeponatur’, “since the guardian is made responsible not only for the ward’s property, but also for his morals” (Dig.
26:7:12:3). An extensive discussion of this subject is in B. Biondi, “Aspetti morali della tutela,” Festschrift F. Schultz, I, Weimar 1951, pp. 52-73.2. The Exemptions: This work was written in Greek, probably in the northern part of Asia Minor. Its full title appeared in the Greek text of a paragraph quoted from the introduction to the book in the Digest (Dig. 27:1:1:2). The Latin title given by our text is obviously incomplete. The book was written, according to Honoré, after Caracalla’s death, while Brassloff dates it to the period after Elagabalus’ death in 222. See A. Μ. Honorö, “The Severan Lawyers—A Preliminary Survey,” SDHI, XXVIII (1962), p. 214; Brassloff, PW, 1:15, 1911, s.v. Herennius, Cols. 668-675. For the questions related to the work’s place of composition, its Greek rendering of Latin legal terms, and the authenticity of the texts it contains, see H. Peters, “Zur Schrift Modestins naQaiTqoig,” ZSSRG, RA, XXXIII (1912), pp. 511-513; J. Altmann, “Die Wiedergabe römischen Rechts in griechischer Sprache bei Modestinus ‘De excusationibus’,” SDHI, XXI (1955), pp. 1-73; E. Volterra, “II problema del testo delle costituzioni imperiali,” Atti del II congresso internazionale della Societa Italiana di storia del diritto, Venice 1967,lang=EN-US style='font-size:8.5pt;font-style:normal'> Florence 1971, pp. 966-979; idem, “Quelques remarques sur les ‘libri excusationum’ de Modestin,” Labeo, XIV (1968), pp. 346-347; idem, “L’opera di Erennio Modestino ‘De Excusationibus’,” Studi G. Scaduto, III, Padua 1970, pp. 583-604.
3. Guardians: Roman legal theory distinguished between ‘tutor’ and ‘curator’. ‘Tutor’, translated by Modestin by the term kuTponog, signified a guardian to children, boys under the age of fourteen and girls under twelve.
‘Curator’, rendered by Modestin in a Greek transcription xovqcitcdq, indicated a guardian to minors,i. e., under the age of twenty-five, as well as insane and spendthrifts. The distinction between these two forms of guardianship became progressively blurred, until it disappeared, to all practical purposes, in the late Empire and by the reign of Justinian. The obligation of guardianship was imposed in principle on near relatives, but it became gradually assimilated to a liturgy, and was imposed as such by the municipal and the Imperial authorities. See F. Oertel, Die Liturgie, Leipzig 1917, pp. 405-410; F. Grelle, “ ‘Datio tutoris’ e organi cittadini nel Basso Impero,” Labeo, VI (1960), pp. 216-225; G. Cervenca, “Studi sulla ‘cura minorum’, 2—In tema di ‘excusationes’ della ‘cura minorum’,” BIDR, Series 3, LXXVII (1974), pp. 139-219. For a typical example of the procedure of imposed guardianship see the instructions issued by the acting Strategos of Oxyrinchos in 182 or 183, in which he ordered a City-Secretary to appoint a guardian to a minor. In this document he specified “so that you appoint—on his own responsibility (?)—a guardian to the said minor, preferably from among his relatives, and if not—from strangers, so that his interests are not harmed.” See N. Lewis, “Instructions for Appointing a Guardian,” Bulletin of the American Society of Papyrology, VII (1970), pp. 116-118. The insistence that the appointment be done on the responsibility of the appointing functionary (the text must be emended in this way) was very common in appointments to liturgies, and it should be seen as yet another indication of the assimilation of imposed guardianship to the other liturgies.
4. Laws: Modestin usually translated the Latin term ‘constitutiones’ by the word διατάξεις.
See J. Altmann (above n. 2), pp. 57-58. For the definition of this term see Institutiones, 1:2:6. For its various meanings see also Sperber, pp. 56-59.5. Vexed: for the legal aspects of the verb ένοχλεΐν, and for its derivatives as parallels to the Latin verb ‘inquietare’ in the legal sources and in the papyri, see L. Wenger, ZSSRA, RA, XXVII (1906), p. 376.
6. Religion: θρησκεία here indicates cult or worship, devoid of negative meanings.
BIBLIOGRAPHY
Lenel, I: Modestinus, No. 67, Col. 717; Juster, I, pp. 161-162; II, pp. 24 n. 1, 279 no. 5; A. Berger, “Studi sui Basilici,” lura, VI (1955), pp. 113-116; Avi- Yonah, p. 46.