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The Jews and the Law

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The Jews and the Law chapter 3 The Jews and the Law Civil Status As a rule, the pagan Roman state did not discriminate against minority groups, religious or otherwise, on Roman territory. Once they had become Roman resi- dent aliens or citizens they fitted into the legal and social structure of Roman law and society. That applied to Jews as to the rest of the population. As aliens they were peregrini and as citizens (cives). So when some people were cives, aliens or slaves, Roman legislation covering such groups was applied to Jews as to others. Only when men tried to undermine what Rome considered law and order did the authorities react and impose sanctions on transgressors. This situation was reinforced by the law of Caracalla (Constitutio Antoniana 212), by which all residents of the Roman state were granted citizens’ rights, without discrimination whatsoever. The situation changed, albeit gradually, at the beginning of the fourth cen- tury, when Christianity became the official religion of the Roman state, and enforced a series of discriminatory laws against unbelievers, including Jews. As we shall see, the latter occupied a special position in Christian theology, and therefore also in Christian legislation as applied by the Christian Roman state. While the Jews in pagan Rome were the equals of their co-citizens before the law, they asked for and obtained a series of extra privileges, which all stemmed directly or indirectly from the religious liberties granted them as far back as the days of Julius Caesar, or perhaps even before. At the same time they were subject to a special tax, starting in 70 CE, not exacted from their non-Jewish peers. Before that date the tax levied on Jews had been voluntary and was meant to support the upkeep of the Temple in Jerusalem. Furthermore, they were allowed a sort of allegiance to the patriarch in Israel, including a spe- cial monetary contribution paid him by all Jews in the Diaspora, including the Italian ones. When the office of the patriarch ceased, the tax was converted to the Roman treasury. The exact status of Jews in the Roman state before and after the debacle of 70 CE has been controversial. Some scholars singled out the treaty signed between Judaea and Rome at the time of the Maccabees as the basis for the status of Jews in the Empire, including, of course, in Italy. They postulated that Rome considered the Jews a nation, that they were Roman residents when living on Roman territory, and that chiefly on religious grounds. Others argued © koninklijke brill nv, leiden, ���4 | doi ��.��63/9789004�8�360_�05 The Jews and the Law 119 that this did not apply to Jews on Roman territory outside Judaea. Instead they opted for the status of peregrini, enjoying special privileges, and hence were an ethnic group rather than a nation, at least in the Diaspora. The apostle Paul is cited as an example of a double status: Roman citizen of Tarsus as well as member of the Jewish nation. The jury is still out on this issue, as well as to the exact meaning of the term gens appearing in contemporary texts.1 1 The literature on Roman law is endless. Practically all relevant texts were published and stud- ied by Mommsen. See his Römisches Staatsrecht, 3 vols. and other publications. On Jews and Roman law, see Cohen et al., Collected Studies in Roman Law, passim; Colorni, Legge ebraica e leggi locali, passim; Id., Gli ebrei nel sistema del diritto comune, cit., passim; Fuks, Where Have All the Freedmen Gone? pp. 25f.; Herr, Roman Rule In Tannaitic Literature, cit., pp. 45f.; Juster, Juifs dans l’empire romain, cit., passim; Linder, Jews in Imperial Roman Legislation, passim; Id., Status of the Jews in the Roman Empire, pp. 128f.; Id., Legal Status of the Jews in the Byzantine Empire, passim; Mitteis, Reichsrecht und Volksrecht, esp. p. 34, note 5; Rabello, Legal Condition of the Jews in the Roman Empire, cit., passim (= an English résumé of Juster); Id., Ebraismo e diritto, passim; Id., Tribute to Jean Juster, pp. 216f.; Id., Situazione giuridica, pp. 125f.; Id., The Jews in the Roman Empire, passim; Rutgers, Hidden Heritage, cit., pp. 174f. The controversy over the status of Jews in the Roman Empire has been going on for a long time. One version was that of Mommsen, Gesammelte Schriften, 3, pp. 416f., Id., Religionsfrevel, cit., pp. 424f., who defined all Jews after 70 as deditici (surrendered enemies) This was doubted (perhaps except- ing a small group in Judaea), by Colorni, Legge ebraica, cit., pp. 13f., and also by Juster, Juifs dans l’empire romain, cit., 1, pp. 220f. Others chose the nation version, the ethnic group defini- tion, the religious identity, and so forth. See for instance, Applebaum, Legal Status, pp. 455f. and the references there; Bruce, Nerva and the Fiscus Judaicus, cit., pp. 39f.; Goodman, Nerva, Fiscus Judaicus, cit., pp. 40f.; Guterman, Religious Toleration and Persecution, chs. 3–5, who suggests that the privileges granted the Jews in the East were those of a nation whereas those in the West were those of a religio licita; Stern, Greek and Latin Authors, cit., p. 395. Much confusion has been created by the translation into modern languages of classical texts. Terms such as nation, race, and so forth are employed indiscriminately. On Jewish rights in ancient cities, see Nock, Essays on Religion and the Ancient World, 2, pp. 960f.; Rajak, Jewish Rights in the Greek Cities, pp. 19f. Probably that would apply also to Hellenistic towns in Italy—for instance in Magna Graecia. For other references to citizenship, see JCA, 2.48f.; 56f. Mommsen suggested that before 70 all Jews in the Empire were resident aliens, while after that date they became deditici. He also proposed (Religionsfrevel, pp. 418f.) that the Romans saw in Christianity a greater threat than in Judaism, since Judaism retained a measure of national identity, whereas Christianity was not identified with any particular national notion and hence did not constitute a danger to Roman national identity. This, according to Mommsen, was at the bottom of the better treatment of Judaism at the time of the principate until Diocletian. Therefore the Roman antagonism to the universal god of Christianity was sharper than toward the Jewish God. On Paul, see Acts, 21, 39; 22.28; Corinthians, 11.22; and Philippians, 3.5. On dual citizenship, see Juster, op. cit., 2, pp. 15f. .
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