186 CHAPTER SIXLaws^18
A discussion of late imperial legislation in regard to the Jews will introduce
us to a crucial set of ideological and social changes. It has been commonly
thought since the days of Jean Juster, if not earlier, that such legislation was
characterized by tension between the emperors’ conservative tendency to con-
tinue to view the Jews as a licit collectivity, which enjoyed the full protection
of the state and the right to practice its peculiar customs without disturbance,
and their growing, theologically based conviction that those Jews who per-
sisted in their religion were living a lie.^19 As the interests of the state became
ever more closely identified with those of the church, especially from the reign
of Theodosius I on, the legal position of the Jews declined. They increasingly
suffered various disabilities: they were barred from service in the army and
the government bureaus, forbidden to own slaves and build synagogues, and
so on. As early as the later fourth century, imperial constitutions might classify
(licit) Jews with (illicit) heretics and pagans for limited purposes.^20 By the early
sixth century, this occasional similarity of status was approaching identity. It
is tempting to view the condition of the Jews in the sixth century through the
prism of the Christian Middle Ages. And yet, even under Justinian, Judaism,
unlike paganism and heresy, was never declared illegal (nor was it in medieval
Christendom).
This standard analysis seems mainly correct, as far as it goes, but it needs
to be qualified and supplemented. We must, first, beware of translating the
laws into human action in any simple way. Roman imperial laws were usually,
though not always, reactive—responses to conditions brought to the emperor’s
attention by administrators or private citizens. Once issued, laws were techni-
cally applicable everywhere, but there is ample evidence that they were not,
indeed could not be, everywhere enforced, that in some cases the emperors
were lax about enforcing laws they themselves had made, even when they had
the means to do so.^21 A concentration of constitutions and rescripts (imperial
(^18) The best recent treatment by far is A. Linder,The Jews in Roman Imperial Legislation(De-
troit: Wayne State University Press, 1987); some bibliographical but not conceptual updating of
J. Juster’s classic but now badly outdated book (Les juifs dans l’empire romain) may be found in
A. M. Rabello, “The Legal Condition of the Jews in the Roman Empire,”ANRW2.13 (Berlin:
DeGruyter, 1980, pp. 662–762.
(^19) Or alternatively that both positive and negative legislation had a theological foundation
(e.g., Rabello, “Legal Condition,” 693).
(^20) E.g., CTh 16.7.3, 383; Const Sirm 12, 407; CTh 16.5.44, 408; Const Sirm 14, 409, etc.
And see Avi-Yonah,Jews o fPalestine, pp. 213–20.
(^21) The “classic” though possibly fictional case is that of Arcadius and the temples of Gaza in
400—seeVita Porphyrii41; for a perhaps too optimistic discussion of the authenticity and date
of this work, see H. Gre ́goire and M.-A. Kugener,Marc le diacre: Vie de Porphyre e ́veˆque de Gaza
(Paris: Les Belles Lettres, 1930), introduction. But see now Z. Rubin, “Porphyrius of Gaza and