28 On the Judicial Powers of the Jewish Authorities
Arcadius {with Honorius)
3 February 398
This law, given by Arcadius in his name and in that of Honorius on 3 February 398 at Constantinople, was addressed to Eutychianus, Praefectus Praetorio of the East.
Its text has been preserved in the Breviarium rendering of the Codex Theodosianus' version {Brev. 2:1:10 = CTh 2:1:10), supplemented by the Visigothic Commentary. This text was received into Codex Justinianus (CJ 1:9:8).The law determined the limits of the judicial powers wielded by the Jewish authorities. In its earliest version, known through the Breviarium, it posits the rule that the Jews in the Empire, being Roman citizens, are bound to live according to Roman law and to apply it in practice. It distinguishes, in this context, between two types of litigation: cases that belong to the sphere of Jewish religion, and those that pertain to Roman law. While the legislator abstained from interfering with cases of the first type, which were probably left entirely to the jurisdiction of the Jewish authorities, he considered the other type, those cases unconnected with religious matters, to fall within the ambit of the common Roman law, and expected the Jews to apply to it like all the other citizens of the Empire. They were permitted, nevertheless, to bring cases of the second type before Jewish courts, provided that these were civil law matters, and that the procedure adopted by the court was that of arbitration. Both parties had to agree beforehand to have recourse to the Jewish court of arbitration, and once the court issued its verdict it was considered as an arbitration verdict given by an arbiter appointed by a magistrate. It had to be enforced, therefore, by the State. This interpretation of the law was also given by the Visigothic Commentary.
This law is of particular interest for the light it throws on the government’s attitude to the judicial powers of the Jewish courts, which the State recognized as subject to the jurisdiction of the patriarchs.
One observes, in effect, a separation of powers in the judicial sphere, under which all cases of religious character were left to the Jewish court, in accordance with the principle laid down by Theodosius in 17 April 392, namely that the Jewish authorities subject to the jurisdiction of the patriarchs have an exclusive judicial power on Jews in religious matters (see above, No. 20).The judicial powers of the Jewish authorities in civil law cases were recognized and regulated on the assumption that they were to be conducted using arbitration procedures, hence the dependence of the Jewish court on the prior acceptance of its jurisdiction by both parties before it was allowed to deal with the matter in litigation. Once this prior acceptance was secured, however, the court was assured of full support for its arbitration award from the Imperial government.
In a law given on 27 July 398 at Mnizus, Arcadius granted similar powers to the bishops. Its text, as preserved in Codex Justinianus (CJ 1:4:7), displays a considerable similarity to the present law, probably due to the use of the earlier text as a model by the draftsmen.1 Justinian’s editors received the Theodosian text, but they introduced into it several important changes. First, they changed the inscription in such a way that the law was attributed to Gratian, Valentinian, and Theodosius. They omitted, however, to correct accordingly the consular date in the subscription, 398, to make it correspond to the corrected inscription. It is clear, therefore, that the altered inscription is due to an error committed either by Justinian’s editors or in the course of the manuscripttransmission of the Codex. Second, Justinian’s editors omitted the word “non” found in the Theodosian text. This change is of the utmost importance, for it abolished the original distinction between religious and non-religious litigation, hence also the distinction between the different courts authorized to deal with the two types of litigation.
While the original text attributed only nonreligious litigation to the Roman State courts, the altered text attributed both types to the jurisdiction of the State courts. Another important change is the omission of the patriarchs from Justinian’s text. This change resulted from the extinction of the Jewish patriarchate shortly before May 429 (see below, No. 53); since that time the Jewish communities of the Empire were not ruled by one central authority. Linguistic and stylistic considerations resulted in additional changes, such as the omission of the word ‘et’ in the opening phrase or that of the rhetorical passage ‘postremo... sint’.2 The replacement of the term ‘compromissum’ with the term ‘pactio’ reflects, probably, Justinian’s legislation on arbitration from 529.3 These changes, which resulted in the abolition of the independent Jewish jurisdiction in religious matters, express the government’s determination to restrict the judicial powers of the Jewish authorities, but even Justinian’s text retained the original recognition of the validity of Jewish civil law jurisdiction as an arbitration court.The obvious importance of this law, on the one hand, and its somewhat vague phrasing, on the other hand, gave rise to considerably divergent interpretations of its purport and content. Ferrari dalle Spade believed that the law distinguished between Jews who were Roman citizens and Jews who lacked Roman citizenship.4 Dinur interpreted it in the context of the conflict between the patriarchs and the Sages, and maintained, consequently, that it established a distinction between the patriarch’s court, authorized by the government, and the court of the “Jews,” i.e., the Sages, which did not enjoy the State’s recognition.5 Alon, on the other hand, was of the opinion that the law deals with one court only, although that court was known by different names.6 Baer gives a similar explanation.7 Colorni maintained that the Eastern Jews— mainly the inhabitants of Palestine—were differently treated than the Western Jews in the matter of legal autonomy, but he, too, emphasized that the abolition of the Jewish legal autonomy in civil law cases was connected with the trend towards the unification of the Roman law and its grounding on Christian principles.
Oster- setzer linked our law with Caracalla’s granting of citizenship to the entire population of the Empire in 212 and with the work known as Collatio Legum Mosaicarum et Romanarum. He believed that Caracalla’s law resulted in a considerable limitation of the judicial powers of the Jewish authorities, and that this work was written with the intention of demonstrating that there was a fundamental correspondence between the Jewish and the Roman laws, perhaps by a person close to the patriarchs’ household. Most of the experts in this field, however, have not been convinced by this theory.8 Many studies dealt with the changes introduced into the law’s text by Justinian’s editors. While Berger and Kisch agreed on the restrictive purpose of the omission of the word ‘non’, Reinach maintained that Justinian’s text does not differ, in essence, from the Theodosian text, and that that omission was intended to facilitate the implementation of the legal principle enunciated in Codex Theodosianus. He believed that the legislator distinguished, originally, between a stage of ‘controversial litigation on theological matters which could still be settled by the Jewish authorities, and the more advanced stage of litigation, when the case was brought before a magistrate. The final settlement, either way, was validated through the intervention of the Roman authorities. The changes introduced by Justinian’s editors, according to Reinach, simplified this procedure by allowing the Roman authorities to act in any stage of the proceedings, including the early stages originally reserved to the Jewish authorities, on the assumption that the whole matter should be settled under Roman law.Codex Theodosianus, 2:1:10 (= Breviarium, 2:1:10), ed. Mommsen, pp. 75-76
IDEM AA.· AD EUTYCHIANUM* P(RAEFECTUM) P(RAETORI)O ludaei Romano et communi iure viventes in his causis, quae non tam ad superstitionem eorum quam ad forum et leges ac iura pertinent, adeant sollemni more* iudicia omnesque Romanis legibus inferant et excipiant 5 actiones: postremo sub legibus nostris sint.* Sane si qui per conpromis- sum ad similitudinem arbitrorum apud ludaeos vel patriarchas* ex consensu partium in civili dumtaxat negotio putaverint litigandum, sortin eorum iudicium iure publico non vetentur: eorum etiam sententias provinciarum indices* exequantur, tamquam ex sententia cognitoris ar- 10 bitri fuerint adtributi.*
DAT.
Ill NON. FEB. CONSTANT(INO)P(OLI) HONOR(IO) A. IIII ET EUTYCHIANO V.C. CONSS.·INTERPRETATIO
ludaei omnes, qui Romani esse noscuntur, hoc solum apud religionis 15 suae maiores agant, quod ad religionis eorum pertinet disciplinam, ita ut inter se, quae sunt Hebraeis legibus statuta, custodiant Alia vero negotia, quae nostris legibus continentur et ad forum respiciunt, apud iudicem provinciae eo quo omnes iure confligant Sane si apud maiores legis suae consentientes ambae partes, de solo tamen civili negotio audiri 20 voluerint, quod interveniente conpromisso arbitrali iudicio terminatur, tale sit, quasi ex praecepto iudicis fuerit definitum.
9 10
THE SAME TWO AUGUSTT TO EUTYCHIANUS, PRAEFECTUS PRAETORIO
The Jews, who live under the Roman common law, shall address the courts in the usual way11 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; in conclusion, they shall be under our laws.12 Certainly, if some shall deem it necessary to litigate before the Jews or the patriarchs13 through mutual agreement, in the manner of arbitration, with the consent of both parties and in civil matters only, they shall not be prohibited by public law from accepting their verdict; the governors of the provinces14 shall even execute their sentences as if they were appointed arbiters through a judge’s award.15
GIVEN ON THE THIRD DAY BEFORE THE NONES OF FEBRUARY AT CONSTANTINOPLE, IN THE CONSULATE OF HONORIUS AUGUSTUS FOR THE FOURTH TIME AND OF EUTYCHIANUS.16
COMMENTARY
All the Jews, who are known to be Romans, shall litigate before the Heads of their religion only on what concerns the discipline of their religion, so that they shall observe among themselves what was established by the Hebrew laws. All the other matters, however, which are covered by our laws and pertain to the court, shall be determined by the governor of the province according to the common law.
Certainly, if the two parties shall consent and wish to litigate before the Heads of their law, in civil law matters only, and the process shall be terminated by an arbitration award based on a mutual agreement, the award shall be recognized as if it was established by a judge’s order.Codex Justinianus, 1:9:8, ed. Krüger, p. 61
IMPPP. GRATIANUS VALENTINIANUS ET THEODOSIUS AAA. EUTYCHIANO PP.
ludaei Romano communi iure viventes in his causis, quae tam ad superstitionem eorum quam ad forum et leges ac iura pertinent, adeant sol- 5 lemni more indicia omnesque Romanis legibus conferant et excipiant actiones. Si qui vero ex his communi pactione ad similitudinem arbitrorum apud ludaeos in civili dumtaxat negotio putaverint litigandum, sortiri eorum indicium iure publico non vetentur. Eorum etiam sententias indices exsequantur, tamquam ex sententia cognitoris arbitri fuerint at- 10 tributi.
lang=EN-US style='font-size:9.0pt;line-height: 115%;font-style:normal'>D. Ill NON. FEBR. CONSTANTINOPOLI HONORIO A. IIII ET EUTYCHIANO CONSS.
THE THREE EMPERORS AND AUGUSTI GRATIAN, VALENTINIAN AND THEODOSIUS TO EUTYCHIANUS, PRAEFECTUS PRAETORIO
The Jews, who live under the Roman common law, shall address in the usual way the courts in those cases which concern their superstition as well as those that concern court, laws and rights, and all of them shall accuse and defend themselves under the Roman laws. Indeed, if some of them shall deem it necessary to litigate before the Jews in a common agreement in the manner of arbitration and in civil matters only, they shall not be prohibited by public law from accepting their verdict. The governors shall even execute their sentences as if arbiters were appointed through a judge’s award.
GIVEN ON THE THIRD DAY BEFORE THE NONES OF FEBRUARY AT CONSTANTINOPLE, IN THE CONSULATE OF HONORIUS AUGUSTUS FOR THE FOURTH TIME, AND OF EUTYCHIANUS.
NOTES
1. Compare our text, for example, with the opening phrase of CJ 1:4:7 : ‘Si qui ex consensu apud sacrae legis antistitem litigare voluerint, non vetebantur, sed experientur illius (in civili dumtaxat negotio) arbitri more residentis sponte iudi- cium’. “If some people shall wish to litigate before a priest of the sacred Law in common consent, they shall not be prohibited, but address themselves voluntarily to his judgement, and he shall sit to judge in civil law matters only and in the manner of arbitration.”
2. See Grupe, XIV, p. 225; XV, pp. 340-341.
3. See Juster, II, p. 103 n. 3. For the use of the term ρΟ'ΈΊΊΟΕΊρ in the Jewish sources consult Sperber, pp. 171-172.
4. See Ferrari dalle Spade, “Privilegi,” p. 281.
5. B. Dinaburg, “Diocletian’s Rescript to Juda from 293 and the Struggle between the Patriarchate and the Sages in Palestine,” Studies in Memory of A. Gulak and S. Klein, Jerusalem 1942, p. 77 n. 5 (in Hebrew).
6. Alon, Studies, p. 435.
7. I. F. Baer, Zion, XV (1950), p. 16 n. 47 (in Hebrew).
8. A. M. Rabello, “On the Collatio Legum Mosaicarum et Romanarum,” Annual of the Institute for Research in Jewish Law, I (1974), pp. 231-262 (in Hebrew).
9. Augusti: Arcadius and Honorius.
10.Roman"> Eutychianus was nominated Praefectus Praetorio of the East in September 397, after his replacement by Anatolius in the office of Praefectus Praetorio of Illyricum, probably in April-May 397. He served in the East until the summer of 399 when he was replaced by Aurelianus, but returned to this post in the autumn of the same year, and held it until the summer of 400. He served in this post again between 403/4 and June-July 405. See Haehling, pp. 78-79; Jones, “Collegiate Prefectures,” p. 81; PLRE, I, s.v.; O. Seeck, “Die Reichsprafektur des vierten Jahrhunderts,” RhMus, LXIX (1914), pp. 8-12.
11. Usual way: the term ‘mos’ has here the meaning it usually has in the rescripts. See M. Kaser, “Mores Maiorum und Gewohnheitsrecht,” ZSSRG, RA, LIX (1939), p. 75.
12. In conclusion... laws: these words do not appear in the Justinian text. Solazzi suggested that they are a gloss interpolated into the original law, and that the text used by Justinian’s editors was free from it, hence closer to the original text than the Theodosian text preserved in the Breviarium. See Solazzi, “Ancora glossemi.”
13. Before... Patriarchs: according to Solazzi this is another interpolated passage. Baer suggested two alternate explanations to this passage. The first consists in correcting ‘ludaeos’ to ‘iudices’, as in Ms. O. The other, proposed also by Alon, interprets the word ‘vel’ in a substitute sense, and understands the terms “Jews” and “patriarchs” as denoting the same court. We believe that there is no need to emend the text or to have recourse to problematical interpretations. The legislator referred in fact to two types of courts, and he designated the court of the Jews, distinct from the court of the patriarchs, by the term commonly used for it. Compare the use of this term in the Palestinian Talmud: “R. Bebai in the name of R. Asi: till he writes in a place of Yehudaikei, if there is not a Yehudaikei there, in the synagogue” (Gittin, 1:1, 43:2). The word ‘Yehudaikei’ seems to be a transcription of the Greek term ’Αγορά ’Ιουδαϊκή, or a similar term. See also S. Lieberman, “Notes,” P'rakim, I (1967/68), pp. 101-102. Lieberman points there to the similarity between the term ’Ιουδαϊκή and the term Εβραϊκή known from the Golgoi inscription in Cyprus, and suggests that it is to be identified as a Jewish institution typical to the diaspora communities, distinct from the synagogue and containing the “archive of the Jews” (άρχεϊον τών ’Ιουδαίων). See also Sperber, pp. 62-66.
14. The term ‘iudices’ here designates undoubtedly the governors of provinces, who were endowed also with judicial powers. Although Justinian’s editors omitted the word “provinces,” they too understood ‘iudices’ to designate governors, for they distinguished clearly between “governors” and “judge” in the law’s last phrase, and retained the terms of the Theodosian text: they designated “governors” by the term ‘iudices’, and “judge” by ‘cognitor’.
15. Juster suggested that the legislator recognized in this passage the arbitration award of the Jewish judge in civil matters, and with the prior consent of the parties, as having the force of a verdict given by a judge. This force was not recognized to ordinary arbitration awards. Juster’s interpretation is in agreement with the Visigothic Commentary rather than with the Theodosian text. The Commentary is probably to blame for the corruption of ‘adtributi’ to ‘attributae’ in Ms. O of the Breviarium, hence also to the corruption of the content of the last phrase. For the sense of ‘cognitor’, “judge,” see the law from 8 April 392 (CTh 10:10:20), and another law from 30 March 423 (CTh 4:18:2) where Justinian’s editors replaced ‘cognitor’ with ‘iudex’ (CJ 7:51:3).
16. Given... Eutychianus: 3 February 398.
BIBLIOGRAPHY
Godefroy, I, pp. 101-103; Juster, II, pp. 101-103, 152; Seeck, Regesten, p. 293; I. Ostersetzer, “La ‘Collatio Legum Mosaicarum et Romanarum’—Ses origines, son but,” REJ, XCVII (1934), pp. 91-96; Browe, pp. 123-124; Solazzi, “Fra norme,” pp. 405-406; Ferrari dalle Spade, “Privilegi,” pp. 279-282; S. Solazzi, “Ancora glossemi e interpolazioni nel Codice Teodosiano,” SDHI, NS, XIII-XIV (1947-1948), pp. 203-204; Seaver, pp. 67-68; Colorni, Legge ebraica e leggi locali, Milan 1945, pp. 20, 103-134; A. Berger, “CTh 2,1,10 and CJ 1,9,8 pr.—A Perfect Example of an Interpolation through Cancellation of a ‘non’,” Iura, X (1959), pp. 13-23; J. Reinach, “ ‘Controverse’ et ‘litige’—Comparison de CTh 2.1.10 et de CJ 1.9.8,” Iura, XI (1960), pp. 184-188; G. Kisch, “Zur Frage der Aufhebung jüdisch-religiöser Jurisdiktion durch Justinian,” ZSSRG, RA, LXXVII (1960), pp. 395-401; LXXIX (1962), pp. 548-549; S. W. Baron, “Berichtigung,” ZSSRG, RA, LXXIX (1962), pp. 547-548 (see above, Kisch); Jones, “Collegiate Prefectures,” p. 80; Avi-Yonah, p. 217; A. Μ. Rabello, “Sui rapporti fra Diocleziano e gli Ebrei,” Atti deWAccademia Romanistica Constantiniana, 2 Convegno Internazionale 1975, Perugia 1976, pp. 180-197; idem, “Tribute,” pp. 236-238; Vogler, pp. 55-57, 62.