The secular juridical revolution

The papal doctrine of servitus Judaeorum corresponded wellwith and gave justifi­

cation to a secular doctrine ofservitus camerae imperialis (Kammerknechtschaft) or servitudeimmediately subjectto the Emperor’s authority, promulgated by many rulersbut especially bythe emperor ofthe Holy Roman Empire Frederick II (1220- -1250).53 But although thedoctrine of servitus camerae imperialis gota theological justification within the entire Christianitas with the Church’s justification of it, as asecular,state doctrine ithad originated muchearlier. In fact, the very term servitus Judaeorumasalegal concept specifying theJewish position within a statewent back tothe Code of Justinian of527.

1.4.1. The Code of Justinian of 527

A term servitus Judaeorum appeared in the Code of Justinian (CodexJustini- anus), the codification or selected collection of Roman laws and jurisprudence issued from 529 to 534 C.E. by Justinian I, Eastern Roman Emperor. The pur­ pose of theCodexJustinianuswas notonly to collect laws but to form theminto a unified system,the best and complete embodiment of legal reason. The Codex together with other parts,especially Digesta, discovered in Bolonia by the end of the 11lh century, influenced enormously, together with the Canon Law, espe­

cially Gratian’sDecretum (Decretum Gratiani) of c.1140, the legal thinking of Christianitas. The reception of the Roman law fromthebeginning of thesecond millennium began a process of turning the illogical and dispersed differentlegal and customary systems of the continental Europe into a unified, rational legal system.54

1. Jews and the Middle Age Christian society 51 The principle of“servitude of the Jews” (servitus Judaeorum) was established by the Codex. It determined the status of Jews throughout the Roman Empire for hundreds of years. They had theirposition severely limited. Justinian took overthe regulations ofTheodosius adopted fromhisCodex of404. Concerning the regula­

tions on the ownership of Christian slaves bynon-Christians he tightenedthem,the move which was toprevent Jews from converting slavestoJudaism. Justinian also banned all non-Christianplaces ofworship innorthern Africa; Jews were grouped there with pagans and heretics. This legislation was not enforced in practice, but it created a precedent, since synagogues could now be violated and, even more important, it blurred the difference between Jews and other non-Christians. The Codex also abolished compensation for illegal purchases of Christian slaves and the Jews owning Christian slaves during the time ofJustinian couldbepunished by execution.

Jews also couldnot testifyagainst Christians ina court of law,could not hold public office and their religious rights were restricted. The forbiddance of testi­

mony inthe courts of law was already present inthe Theodosian Code, but Justin­

ian eased this restrictionin 537 toallow Jews to testify in casesbetweenChristian individuals and the state, an exception among all non-Christian groups. Here the Emperorsacrificedthe doctrinalsubordination of his Jewsbutthiswas done purely for practicalreasons. He just wantedto be abletoobtaintestimony against subjects who faced the emperor incourt. Internal Jewish matterswhich underthe Theodo­ sian Code of 404 could be arbitrated only by Jewish courts, under the Justinian Code were tobe officiated by the state. Executing this law, Justinian demanded in 553 that public reading ofthe Pentateuch could proceed in the vernacular rather thanin Hebrew.He also forbadealtogetherthereading ofthe Mishna.The prayer Shema Yisrael, (Hear, O Israel, YHWH our God, YHWH is one),universallythought tobethe mostimportant prayer in Judaism, was forbidden,since it was thought by the authorities to constitute a denialof the Christian Trinity.A conversion ofaJew toChristianityresultedwith inheritinghis or her father’s estate, with an exclusion of the still-Jewish siblings. All suchmeasures were intended definitely to restrict the religious freedomof Jews.

But the underlying principle of such legal measures was much more prosa­ ic and Justinian did not select only Jews, among otherpagans and heretics, for special treatment. The same laws were applied to, for instance, Samaritans. He simply expanded his own power in order to guarantee that there was nothing that did not fall under theEmperor’s legislative power. Although the Justinian’s restrictions were in generalnotstrictlyenforced, there was no doubt that the aim ofthe Codex was to subordinate the emperor’s Jews together with others to the power ofthe state, a kind of a return to a traditional role which religion was to play in the empire. Christianity, although the reigning religion, was essentially playing the same role as other, previous, Roman religious as it equatedthe power of the emperor as the vicar of Christ with the power of God, the basis of the doctrine of caesaropapism,soon to develop fully. In general, in relation to Jews,

52 1. Jews and the Middle Age Christian society

the JustinianCodexclearly declared that the Jews in the Empire “shall enjoy no honors” ,55

55 See C. Brewer, ‘The Status of the Jews...’, pp. 127-139; A. Linder (ed.), The Jews in Roman Imperial Legislation...; L. Feldman, Jew and Gentile...; P. Gray, ‘Palestine and Justin­

ian’s Legislation on Non-Christian Religions’ in B. Helpern, D. W. Hobson (eds.), Law, Poli­

tics and Society in the Ancient Mediterranean World, Sheffield Academic Press, Sheffield 1993.

1.4.2. Kammerknechtschaft

The politicalandlegal conditionthe Justinian Codeof 527 definedfor Jews, which stemmedfromthe unlimited power of the emperor,couldbe compared to Kammerk­

nechtschaft in the Holy Roman Empire. Kammerknechtschaft was an idea which expressed a specific political and legal condition ofthe Jews inthe Germanempire, although the very power ofthe emperor was not unlimited. He, after all, operated within the structure ofthe dispersed sovereignty of Christianitas. Moreover, the limitations were also functional, connected with a division ofthe court functions and revenueswhich belonged to the private domain ofthe emperorand the royal, state functions and revenues which belongedtothe publicdomain. But the concept itself meant that the revenue derived from Jews, being the immediate subjects of the emperor, was only aroyalty ofthe emperorandbelongedto hisprivate treasury (camera}. Consequently, theemperornot only possessed jurisdiction over Jews but was alsobound to grant them protection.

Such a relationship, one could say, was not entirely original. Its origin could be traced to attempts ofthe rulers of differentstate organisms which werecreated in Europe afterthe fall ofthe Roman Empire to deal withJews and other “loose”

people, who wereneither knights, priests or monks, norpeasants or townspeople.

They were“nomadic service people”. The new rulers relatedto them as rulers pe se, but with the spread of Christianityas Christian rulers, evenwhen they were hereti­

cal monarchsas wasthe case with the most important heresy of Arianism. Arianism was a Christian heresywhich caused the most dangerousschismwithin Christian­ ity, which began with a theological teaching of Arius (C.E. 250-336), a Christian presbyter inAlexandria,Egypt. The schism affected thewell-being of Jewsin many countries. Most post-Roman,barbaric Germanic peoples and states, for instance the eastern and western Goths (Visigoths), the Lombards, the Suevi and the Vandals, were baptized into Arian Christianity and settled all over the lands of the former Western Roman Empire.

ThereweremanyJewsresiding in those lands whowere thus under Arian juris­

diction. But unlike the Catholic Church, the ArianChurch was more indifferent or tolerant towards all otherfaiths. This attitude was caused bya fairly simple sense of nature and justice as suchbut,in thecaseofJews,by some doctrinalsimilarities as far as Arianismand Judaism wereconcerned,which were not visible in theChurch

1. Jems and the Middle Age Christian society 53 orthodoxy. One of the most importantpoints of agreement was connected with the Arian subordinate position of the Son - the Messiah Jesus Christ - to the God­ father, a definitely closeaffinity to the Jewish doctrine ofthe Messiah, excluding anyconceptionoffull divinity of theSonand his cosubstantiality with theFather, as declared during the Council of Nicea in325. That is why the Arian rulers were ac­

cused of“judaizing” and humane treatment of Jews.Jewswere considered by them to be justa distinct groupbesideGoths,Romans,Syrians andGreeks, all treated the sameway. In fact, the Arian rulers andthe ruling elitepreferred Jews to Catholics.

Forinstance,for the Visigoths, Catholicswereconsidered to be politically Romans, thus competitors and also religiously threatening as adhering to the Nicene Creed.

Jews, on the other hand, were not the political competitors and did not show the zealotry of fresh conversion. Not only weremarriages between Arian Christians andJewsfrequent butJews had somesort of jurisdiction over Catholics. The same concernedthe Ostrogoths who becameArian Christians, which caused a conflict be­

tween them and Catholics. Upon their attainment of power in Italy, they treated the Jews there according tothe rules of justice and equity. Theodoric the Great, theKing of Ostrogoths (471-526), remarked: “We cannot command religion, for no man can be compelledto believeanythingagainst his will. ” In his decrees he treated Judaism on par with Catholicism, which he disliked, but inhiscapacity as a king hetreated Jewsjustly. But the subsequent revolts ofCatholics againstJews were causedby adeep resentment, as wellas revenge against the oppression of Arians with whom they associated them. This caused King Theodorictouproot Catholicism inItalyand this design was thoughttobe preparedby some Jewish advisers. No wonder that in 537Jews sidedwith their protectors, the Ostrogoths, against thebesieging armies of the Catholicemperor Justinian. Inturn, theArian Lombards made nodistinction in their laws between Jews andnon-Jews. The VandalsinNorth Africawere also Ar­

ians,who treated the Catholics there with greatseverity which caused the Jews there to be probably mistreated after the Vandalsfell. Thishappened, in fact, in all states which wereonce Arian. In general, Jews were considered to be a group siding with the Arian kings who were persecuting Catholics, the move which put Jews “under scrutiny” after the Arian heresy was defeated.56

56 For a classical overview of this problem see J. Burckhardt, ‘Western European Arianism and the Jews’ in idem, Judgments on History and Historians (1929), transl. by H. Zohn, Liberty Fund, Indianapolis 1999; also P. Fredriksen, ‘Chisitian Anti-Judaism...’, pp. 1022-1025; also J. Moorhead, Theoderic in Italy, Clarendon Press - Oxford University Press, Oxford-New York

1992.

OnceArianism was defeated, the Chrisitian paideia began slowly to be cre­ ated, a process which accelerated at the end of the 6th century and the beginning ofthe 7th century. It was then that Christianity began to turn the tide and estab­

lish its slow dominance in the post-Romanworld which also constituted the be­ ginning of themedieval world. Charles the Great gave it its full religious, cultural as well as political shape, also beginning a process which by the end ofthe First

54 1. Jews and the Middle Age Christian society

Millenium gaverise tothe full-fledged political, social and economicfeudal system.

This mergerof Christianity with the socio-economic system of feudalism created thefull-blowncivilizationof Christianitas. But between thedefeatof Arianism and the creation of the mature Christianitas at the turn of the second millennium, the relations between theChristian rulers and theJewswere wayward. They stemmed from acombination of many interrelated factors in manyparts of thepost-Roman westernpolitical world.

For instance,when in 587 the Visigoths of Spainconverted fromArianism to the Nicene faith, the situation ofthe Jewstherechanged too.57 TheKing Reccared I (586-601) under whose rule Lex Visigothorum was compiled, promulgated ase­ ries of laws againstthem.58 ThebaptizedJews were forcedto the tenets of Christi­

anity, through words or deeds. Theycould not escape fromthefaith by fleeing the country. The Jews who did not convert were forbidden to celebrate the Passover, the Sabbaths and other festivals accordingto their tradition. The traditional mar­

riageceremony, the circumcisionofchildrenand dietary rules making distinctions between clean and unclean food werealsoforbidden. Jewscouldnot testifyagainst Christians or cite a Christian incourt. Apenalty wasburningat the stakeorstoning to death. If theking pardoned a Jewsentenced to death,hewas to become a slave and his propertywas tobe confiscated. No Jew had a right to employ a Christian servant. Any circumcisionby a Jew of aChristian slaveresultedwith liberation of that slave and theproperty of a guilty Jew was to be confiscated for thetreasury.

Jewish servants, both maleand female, who converted, wouldbeset free. But at the same time, in 590, Pope GregoryI, a friend of Jews, strongly defendedthem against forced conversions.

57 As a consequence a new feeling of popular solidarity was created. The King, the king­

dom, the universal Church and the majority of the population were now united politically and religiously. In this situation Jews stoodfoth in their uniqueness - chiefly religious. It was not long before anti-Jewish legislation was reinvoked. The third council of Toledo (589) forbade Jews to own Christian slaves, marry Christian women, or hold public office", E.H. Flannery, The An­

guish of the Jews, p. 75.

58 Reccared gave his sanction to the canons of the Third council of Toledo, getting a letter of praise from Pope Gregory I. The Pope supported Reccared’s stance against perfidiam Judaeorum - the unbelief of Jews - and congratulated him for refusing a large bribe to negate the legislation.

There has been the tendency to translate the term perfidian Judaeorum in various languages by the cognate word perfidy or its equivalent. This has been particularly true in the case of its use in the Good Friday prayer for the Jews which in the Roman liturgy begins Oremus et pro perfidis Judaeis. Many scholars have examined the question, and all are in agreement that in its original meaning as well as in the Catholic liturgy the term does not mean ‘perfidy faithlessness', or the like, but rather ‘unbelief ’ or ‘incrdulity’. Ibid.,p. 311.

In the years 610-620, King Sisebut prohibited Judaism whenmanyof his anti- Jewish measures were ignored. Jewswere to convert and as a resultmany leftthe country. The Visigothic prohibition of Judaism probably constituted the first state action within European Christianity which defined the policy for the Jews in the entire country, treating them as a “domain” ofa ruler. Sisebut also promulgated

1. Jews and the Middle Age Christian society 55

a law for hissuccessors to be sworn upon ascensionto the throne that his measures wouldcontinue under athreat of being sentencedto hell during the LastJudgment.

Sisebut’s anti-Jewish policies causedprotests even among the most anti-Judaistic clergy. For instance the famous St. Isidore (570-636), Archbishop of Seville,pro­

tested against violence,justifying only peacefulmeans of conversion. Presiding in the fourthSynodof Toledo (633), he passed acanon law that no Jew could be com­ pelledto be baptized, butthe lawwas widely disregarded.59

59 St. Isidore of Seville, a prominent Spanish prelate, adamanty condemned Sisebut because the king no doubt had zeal but not knowledge, compelling by force those whom one must urge by reasons of faith, but he also showed his satisfaction that Christ had been proclaimed, Ibid., p. 75.

60 A good overview of the Visigothic policies towards Jews is R.-G. Salinero, ‘Catholic Anti-Judaism in Visigothic Spain’ in A. Ferreiro (ed.), The Visigoths. Studies in Culture and Society, Brill, Leiden-Boston 1998, pp. 123-150; also R. Collins, Visigothic Spain, 409-711, Blackwell, Oxford 2004, p. 102-116; also E. A. Thompson, The Goths in Spain, Clarendon Press, Oxford 1969; J. Strzelczyk, Goci - rzeczywistość i legenda (The Goths - the reality and the legend), Warszawa 1984.

In 681,the Twelfth Council of Toledoin Spainordered aburningof the Talmud and other “heretic” books. Again in 682, Visigothic King Erwig enacted28 anti- Jewish laws, demanding an "utter extirpation of the pest of the Jews All Jewish converts were to be registered by a parish priest issuing travel permits. The King also ordered that all holidays,both Christian and Jewish,were to be supervisedby a priest, whose role was to ensure proper piety. In 694, King Ergica enacted the mostsevere anti-Jewish laws in the Visigoths’ kingdom. Presiding overthe Sev­ enteenthCouncilof Toledo, he gota chance to vent his distrust of Jews claiming that there were rumorsabout Jewsoverthrowing Christian rulersoverseasand that Iberian Jews were conspiring with them todestroy the Christian religion. Ergica declaredthat all Jewish-held land be confiscated and all Jews enslaved to Chris­ tians. Jewish-owned Christian slaves were to be given Jews’ property, but they were to be atthevery same time responsibleforpaying thetaxes on theJews. Jew­

ish children over the age ofseven were to be taken from their homes andraised as Christians. The only Jews who were exempted from the harshness ofthe law were theJews thought to be indispensable to the economy in particular towns. But theVisigothic powerwas alreadydisintegrating and Ergica’s law wasn’t applied, except the capital Toledo.60

In Italy, another partof the post-Roman world,we encounter in614 the earliest medieval referral in the Code of Justinian tothe Jewish Oath, also known as Jura- mentum Judaeorum. It was established by EmperorJustinian 75 years earlier. The concept ofthe Oath stemmed from a convictionthatnoheretic could be believed in courtagainst a Christian. The Oath, called More Judaico, or JuramentumJudaeo­ rum, was the form of anoathwhich Jewswerecompelled to take in lawsuitswith non-Jews. There was an elaborate ritual involved while taking it. The text of theoath was defined in such away that a persontaking itwasattheverysame time perform­ ing aself-imposed curse,listing punishment if the oathwas falsely taken.The ritual

56 1. Jews and the Middle Age Christian society

of the oath was to make the curse combinedwith mistrustof a Jewand his humili­

ation. Theoathhad various formsandwasaccepteduntil the 18th century. In oneof the capitularies ascribed toCharles the Great, the oath was clearly defined, even if this might be a later interpolation. In the Byzantine empire, Emperor Constantine VII(913-959) confirmed such an oath, although this was just a repetitionof rulings on it whichare not known. The Jewishoath formulas inGerman can be found in the

ation. Theoathhad various formsandwasaccepteduntil the 18th century. In oneof the capitularies ascribed toCharles the Great, the oath was clearly defined, even if this might be a later interpolation. In the Byzantine empire, Emperor Constantine VII(913-959) confirmed such an oath, although this was just a repetitionof rulings on it whichare not known. The Jewishoath formulas inGerman can be found in the