D - Religious Conceptions of Law

11 “Enjoin Them upon Your Children to Keep” (Deuteronomy 32:46) Law as Commandment and Legacy, or, Robert Cover Meets Midrash

Steven D. Fraade ^*

I Introduction

On April 26, 2004 I attended a one-day conference at the Yale Law School on “Rethinking ‘Nomos and Narrative’: Marking Twenty Years Since Robert Cover’s Essay.” My modest contribution to that occasion was subsequently published as “Nomos and Narrative Before Nomos and Narrative,” in the Yale Journal of Law and the Humanities, in which I explored some of the history of the dynamic intersection of “nomos and narrative” in Judaism from antiquity to modern times, mainly through an assembly of rabbinic texts.¹ Here I wish, once again, to pay tribute to Robert Cover by critically engaging another of his essays, “Obligation: A Jewish Jurisprudence of the Social Order” (first published in 1987 in the Journal of Law and Religion).² I shall do so by bringing for our close reading pleasure an early rabbinic text of midrash (scriptural commentary) that is highly relevant to Cover’s theme and remarkable for its honesty and prescience, qualities shared with Cover. For the Rabbis, and the Hebrew Bible before them, there can be no law without religion or religion without law, however we might define those slippery terms.

II Robert Cover on Jewish Law As Commandment or Obligation

In his aforementioned essay on “Obligation” (Hebrew: mitzvah, but more broadly understood by Cover as “incumbent obligation” [239]), Cover draws a sharp contrast (but with caveats) between western secular jurisprudence, which is based on individual rights, and Jewish religious jurisprudence, which is based on collective (but also individual) obligations. Thus, for example, in the former, justice is served by fulfilling the rights of individuals to, say, receive affordable medical care, whereas in the latter, it is the obligation of the collective to provide it.

Cover argues that each such system of law (or legal discourse) is founded and sustained by a distinctive narrative or “myth.” Thus, modern individual “rights” are rooted in the secular mythos of a social contract, whereas Jewish “commandments” are rooted in the religious mythos of an all-encompassing divine (or Mosaic) revelation that enjoins those commandments upon all of Israel, including future generations, standing at Mt. Sinai.³ Here is Cover in his own words:⁴

The basic word of Judaism is obligation or mitzvah. It, too, is intrinsically bound up in a myth – the myth of Sinai. Just as the myth of social contract is essentially a myth of autonomy, so the myth of Sinai is essentially a myth of heteronomy. Sinai is a collective – indeed, a corporate – experience. The experience at Sinai is not chosen. The event gives forth the words which are commandments. … All law was given at Sinai and therefore all law is related back to the ultimate heteronomous event in which we were chosen – passive voice.

(emphases added)

Cover acknowledges that for most of Jewish history, Jews have not exercised the coercive, sovereign authority necessary to enforce most of the commandments, understood as having been initially commanded by God through Moses, his prophetic agent. Again, citing Cover:⁵

The Jewish legal system has evolved for the past 1900 years without a state and largely without much in the way of coercive powers to be exercised upon the adherents of the faith. … The Jewish legal apparatus had not had the autonomous use of violence at its disposal for two millennia which are, indeed, for all practical purposes the period in which Jewish Law as we know it came to be. In a situation in which there is no centralized power and little in the way of coercive violence, it is critical that the mythic center of the Law reinforce the bonds of solidarity. Common, mutual reciprocal obligation is necessary. The myth of divine commandment creates that web.

(emphases added)

According to Cover,⁶ even when Jewish law created plenty of space for divergent legal interpretations and rulings, it predicated that polysemy or legal pluralism not on individualism, per se, but on the myth of a single, divine, originary, commanding voice.⁷ This renders the system of commandments qua commandments (and not simply as “good deeds”) all the more remarkable for its persistence and relative continuity over thousands of years in the absence of a centralized, politically (as distinct from socially) coercive enforcement of judicial sovereignty. Even so, Cover argues, the system is predicated on its subjects’ understanding their obligations as stemming from the collective self-understanding of, passively speaking, “being commanded.”⁸

Cover acknowledges that rights-discourse and duties-discourse are not impervious to one another, often producing hybrids that belie the secular (rights) versus religious (commandments) dichotomy. Thus, one can just as easily identify secular systems based on duties-discourse (e.g., communism, fascism), as one can justify systems based on rights-discourse that are founded on religious principles or myths (e.g., the US Declaration of Independence). As Cover indicates, this is not simply a function of modernity:⁹

Now, just as the social contract theories generated Hobbes and others who bore a monstrous and powerful collective engine from the myth of individualism, so the Sinaitic myth has given rise to counter myths and accounts which stress human autonomy. The rabbinic accounts of law-making autonomy are very powerful indeed, though they all conclude by suggesting that everything. … everything was given at Sinai. And, of course, therefore, all is, was, and has been commanded – and we are obligated to this command.

(emphases added)

In the end, “Sinai and social contract both have their place” as dynamically intersecting mythoi of jurisprudence.¹⁰

The midrashic text that we will shortly examine asks, how can the commandments (and the Sinai/Moses myth¹¹ upon which they rest) be obligatory for all time, that is, be upheld and transmitted across the generations, especially in the absence of political and judicial sovereignty and in the reality and cacophony of human autonomy? As we shall see, the midrash is a beautiful example of an ancient rabbinic text that reads a “counter myth” of legal autonomy into the heteronomy of Scripture.

III The Hebrew Noun mitzvah and Verb tzivah

Before doing so, however, a few words are required regarding the meaning of the noun mitzvah (commandment or obligation) and the verb from which it derives, tzivah, (to command or enjoin). As Cover indicates, this is the core word for biblical/Jewish law as being divinely commanded and obligatory (alongside many other words for law).¹² But this verb, tzivah, has another, less widely attested and acknowledged meaning, or shade of meaning, that being to will possessions or instructions to one’s heirs in anticipation of one’s death, as in an “ethical will.”¹³ But the two meanings are close to and sometimes bleed into one another (both being forms of instruction), as in the following biblical verse, Deuteronomy 33:4, referring to Moses at the very end of his life and career, introducing what might be termed Moses’s ethical will, or “blessing,” (Deuteronomy 33) to the tribes: “Moses charged us with (the) Teaching (Torah), as the heritage of the congregation of Jacob” (New Jewish Publication Society (NJPS) adapted).¹⁴ The poetic parallelism of this verse would suggest an alignment between the verb to charge (tzivah) and the noun for heritage (morashah). By this understanding, Moses, at the very end of his life and leadership, is more likely to have enjoined the people to embrace what is now their heritage than to have commanded them collectively to obey its laws. We are here, after all, in the midst of a rhetorical discourse of admonition rather than that of law as commandment, even though the difference is a subtle and unstable one. Alternatively, the parallelism might suggest what began as Moses’s command soon became the heritage of the successive generations of Israelites. This meaningful ambiguity (commandment/legacy) both foreshadows and enables the radical midrashic reading of Deuteronomy 32:46 that we are almost ready to engage.

IV The Biblical Context: Moses’s Swan Song

Deuteronomy 32, the scriptural lection Ha’azinu (“give ear”), is Moses’s swan song, just prior to his death at the ripe old age of 120, after 40 years of unsought leadership of the Israelites in their epic journey from Egypt to the edge of the Promised Land. In Cover’s mythic-narrative sense, Moses’s oration is Sinai’s forty-year extension. The book of Deuteronomy is Moses’s paraphrastic reprise of the laws and narratives of the past forty years. It is full of pathos regarding Moses’s repeatedly denied petitions to God to be able to see his epic mission to its completion across the Jordan River.¹⁵ Throughout Deuteronomy, Moses worries and warns the people that without his charismatic prophetic leadership, upon settling in the Land and enjoying its bounty (and mixing with its non-Israelite inhabitants), they will grow complacent, forgetting their history and abandoning the commands to their great covenantal peril. Deuteronomy is Moses’s last chance to inoculate them, rhetorically speaking, against this feared or anticipated outcome.

V The Midrashic Commentary (Sifre to Deuteronomy §335)

The scriptural lemma (Deuteronomy 32:46) is part of the conclusion to Moses’s Haʾazinu song. Its midrashic commentary divides the verse into two halves, so that each half receives its own discrete interpretation. We shall later return to the question of whether the two exegetical units form a larger whole, or just two distinct units that are editorially placed in sequence according to the order of the scriptural verse.¹⁶ Here’s the verse (32:46a–b in bold), together with its surrounding verses, to give a sense of its scriptural context:¹⁷

:וַיְכַל מֹשֶׁה לְדַבֵּר אֶת־כָּל־הַדְּבָרִים הָאֵלֶּה אֶל־כָּל־יִשְׂרָאֵל [מה]

וַיֹּאמֶר אֲלֵהֶם שִׂימוּ לְבַבְכֶם לְכָל־הַדְּבָרִים אֲשֶׁר אָנֹכִי מֵעִיד בָּכֶם הַיּוֹם [מו-א]

אֲשֶׁר תְּצַוֻּם אֶת־בְּנֵיכֶם לִשְׁמֹר לַעֲשׂוֹת אֶת־כָּל־דִּבְרֵי הַתּוֹרָה הַזֹּאת: [מו-ב]

[מז] כִּי לֹא־דָבָר רֵק הוּא מִכֶּם כִּי־הוּא חַיֵּיכֶם וּבַדָּבָר הַזֶּה תַּאֲרִיכוּ יָמִים עַל־הָאֲדָמָה אֲשֶׁר אַתֶּם עֹבְרִים אֶת־הַיַּרְדֵּן שָׁמָּה לְרִשְׁתָּהּ:

[45] And when Moses finished reciting all these words to all Israel,

[46a] he said to them: Take to heart [lit.: set your heart toward] all the words with which I have warned you this day.

[46b] Enjoin them upon your children, that they may observe faithfully all the words of this Teaching (Torah).

[47] For this is not a trifling thing for you: it is your life; through it you shall long endure on the land that you are to possess upon crossing the Jordan. (NJPS)

V Part 1

Here is the midrash’s commentary to the first half of verse 46, following MS London:

‘“ ויאמר אליהם שימו לבבכם לכל הדברים [אשר אנכי מעיד בכם היום]‘” (דברים ל‘‘ב:מ‘‘”ו): צריך אדם שיהו עיניו ולבו ואוזניו מכוונין לדברי תורה. וכן הוא אומר,‘“בן־אדם [שים לבך ו]ראה בעיניך ובאזניך שמע (ושים לבך) את כל אשר אני (דבר אליך) [מדבר אתך] [לכל־חקות בית־ה‘ ולכל־תורתיו] ושמת לבך למבוא הבית (ל)[ב]כל מוצאי המקדש‘” (יחזקאל מ‘‘ד:ה). והרי דברים קל וחומר, ומה בית המקדש שנראה בעיני(ה)ם ונמדד ביד צריך אדם שיהו עיניו ולבו ואוזניו מכוונין, דברי תורה שהן כהררין התלויין בסערה על אחת כמה וכמהה.

“He said to them: Take to heart [lit.: set your heart toward] all the words [with which I have warned you this day]” (Deuteronomy 32:46a): A person needs to direct his eyes and his heart and his ears toward words of Torah. And so it says, “O mortal, [mark well] [lit.: set your heart], look with your eyes and listen with your ears to all that I tell you [regarding all the laws of the Temple of the Lord and all the instructions concerning it.] Note well [lit.: set your heart toward] the entering into the Temple and all who must be excluded from the Sanctuary” (Ezekiel 44:5). We may argue a fortiori ad minore (qal vaḥomer; from light to heavy or the reverse): If in the case of the Temple, which could be seen with the eyes and measured with the hand,¹⁸ a person needed to direct his eyes and his heart and his ears (toward it), then how much more should this be with words of Torah, which are like mountains suspended by a hair.

While the idiom “to set one’s heart (=mind) toward” would seem to denote mental engagement with or concentration on divine or Mosaic instruction, the midrash, based on the parallel use of the same idiom in Ezekiel 44:5, but there combined with the senses of seeing and listening, concludes that in Deuteronomy 32:46a too, Moses is exhorting the people to actively and intensely engage “words of Torah,” not just mentally, but visually and aurally as well, in effect, with the totality of one’s sensing self.¹⁹

Before proceeding, however, we should note that the expression “words of Torah,” construed here broadly as including both scriptural and non-scriptural (oral) rabbinic teaching,²⁰ is without direct scriptural antecedent. In the present context, the phrase “words of Torah” does not appear in the first half of the verse (46a), but is the result of a midrashic importing of it from the second half of the verse (46b: “all the words of this Torah”) to the first (46a: “all the words”). The expression “the words of Torah” within the Pentateuch only appears in the book of Deuteronomy, where it occurs nine times, but always modified by the demonstrative pronoun “this” (as in verse 46b), referring to some form of the book of Deuteronomy or a part thereof,²¹ as in Deuteronomy 1:5, where “this Torah” introduces the book of Deuteronomy, or the bulk thereof, that follows. The expression “the words of Torah” appears only five more times in the rest of the Hebrew Bible, but always with the definite article “the.”²² The more inclusive (rabbinic) expression “words of Torah” (without the definite article or demonstrative pronoun) never appears scripturally or, for that matter, in any pre-rabbinic Jewish text (e.g., the Dead Sea Scrolls). By contrast, the expression appears 13 times in the Mishnah, 15 in the Tosefta, and 190 times in the tannaitic midrashim, in the latter predominantly (145/190) in commenting on the book of Deuteronomy.

Returning to our midrash, the parallel expressions of Moses’s call to the people to pay close mental and multi-sense attention to his “words of Torah” and God’s call to Ezekiel to pay close attention to the envisioned heavenly Temple do not constitute an analogy between equals. Rather, by an argument of qal vaḥomer the midrash says that if such multi-sense engagement is divinely demanded with respect to the seemingly solid, stable, and tangible Temple, how much more should it be required of the precariously fragile, unstable, and intangible “words of Torah.”

The metaphor of “mountains suspended by a hair” demands a brief detour. The phrase appears in only one other tannaitic textual context, that being m. Ḥagigah 1:8 and its related t. Ḥagigah 1:9 and t. ʿErubin 8:23. There it metaphorically denotes a class of laws (e.g., Sabbath laws) with “little Scripture and many laws,” meaning that this class of laws has little in Scripture upon which to “lean” (according to the Tosefta). The Sifre Deuteronomy commentary is unique in its use of this metaphor to characterize “words of Torah” in their entirety. Should we read the Sifre in light of the Mishnah and Tosefta, as saying that all “words of Torah,” that is, all of rabbinic law, are fragile by reason of having “little Scripture and many laws,” that is, few scriptural hooks upon which to hang or from which to derive its laws? I would prefer not to do so, but to read the expression in Sifre Deuteronomy in its own right, thereby preserving the radical ambiguity of its reason for characterizing rabbinic “words of Torah” in their entirety as being “like mountains suspended by a hair.” One could imagine other reasons for this fragility besides the abundance of rabbinic laws with respect to their meager scriptural bases, for example, the difficulty of committing such a large corpus of laws and cacophonous legal debate to memory and oral recitation, and hence the danger of their being lost.²³ This would link, as we shall see, the two parts of the midrash to one another. In any case, the qal vaḥomer argument is ironic, since at the time the midrash was composed, the physical Temple (but not its heavenly prototype) had long been destroyed, while the unstable “words of Torah” had survived, perhaps thanks to the multi-sense attention lavished upon them by their midrashic tradents over the generations.

V Part 2

As radical as is this self-admission of comprehensive rabbinic legal fragility, the midrash’s comment to the second half of the biblical verse is even more radically honest, and potentially subversive. The end of the passage, as we shall see, is particularly difficult, and likely corrupt, in the opinion of several commentators, here following MS London:²⁴

אשר תצום [את בניכם לשמר]‘‘: אמר להם, ‘‘צריך אני להחזיק טובה שתקיימו את התורה אחרי. אף ‘‘ אתם צריכין (אתם) להחזיק טובה לבניכם שיקיימו את התורה אחריכם.‘‘ מעשה שבא רבינו מלדקיא ונכנס רבי יוסי ברבי יהודה ורבי אלעזר בן יהודה וישבו לפניו. אמר להן, ‘‘קרבו לכ[א]ן וקרבו לכ[א]ן. צריך אני להחזיק לכם טובה שתקיימו את התורה אחרי. אף אתם צריכין להחזיק טובה לבניכם ש(ת)קיימו את התורה אחריכם.‘‘ אילו אין משה גדול הוא ואילו אחר וקיבלנו תורתו לא הייתה תורתו שוה [כלום] על אחת כמה (שהֽיו רצים)²⁵ וכמה. לכך נאמר, ‘‘אשר תצום [את בניכם לשמר‘‘].

“Enjoin them upon your children to keep” (Deuteronomy 32:46b): He (Moses) said to them: “I should be grateful²⁶ if you would maintain the Torah after me (=my death). Similarly, you should be grateful to your children if they would maintain the Torah after you.” It once happened that when our Rabbi [Judah the Patriarch] came from Laodicea (in Asia Minor), Rabbi Jose the son of Rabbi Judah [bar Ilai] and Rabbi Eleazar the son of Judah²⁷ entered and sat before him. He said to them: “Come close! Come close! I should be grateful to you if you would maintain the Torah after me. Similarly, you should be grateful to your children if they would maintain the Torah after you.”²⁸ Had Moses not been great, or had he been someone else,²⁹ and had we received his Torah,³⁰ would it not have been worth [a thing]?³¹ How much more so!³² Therefore it says, “Enjoin them [upon your children to keep].”³³

Before further unpacking this midrash, it should be noted that a different, shorter, more easily rendered strand of this midrashic tradition, especially the lines beginning with “Had Moses not been great,” appears to have been preserved in a Byzantine-Yemenite tradition, as evidenced in Midrash Ha-Gadol and Midrash Leqaḥ Ṭov, here citing from the former:³⁴

או אינו אלא משה רבן שלנביאים שאלולי אחרים ש(ת)קיימו את תורתו מה היתה תורתו שווה.

Were it not for Moses, the greatest of the prophets,³⁵ and had not others maintained his Torah, what would his Torah have been worth?

Note that instead of the word אחר (“other”), as in MS London and its family of witnesses, which I argued was awkward, we have אחרים (“others”), which could have been abbreviated as ‘אחר and subsequently miscopied as אחר, which makes less sense here than אחרים. Thus, hypothetically, a prior un- or less-corrupted text behind both versions could have been, אילו אין משה גדול הוא ואילו[לא] אחר[ים] קיבלו תורתו …(“Had Moses not been so great, and/or had others not received his Torah … ”). Interestingly, no witness to this part of the midrash includes both אחר and אחרים, suggesting that this is a differentiating marker between the two main recensions of the text: MS London and company (with אחר, referring to a law-giving leader other than Moses) and Midrash HaGadol – Midrash Leqaḥ Ṭov (with אחרים, referring to the successive generations of recipients after Moses).³⁶ Note also that the Midrash HaGadol – Midrash Leqaḥ Ṭov recension lacks the concluding (and awkward in MS London and its allied witnesses) expression על אחת כמה וכמה (“how much more so”), as well as the concluding citation of the lemma, לכך נאמר (“as it is said … ”). It is possible that these are editorial accretions added for purposes of stylistic consistency. Although as collections, these midrashic anthologies are considerably later than the Sifre, they may at times preserve texts and traditions that are earlier than the manuscript evidence for the Sifre itself.³⁷

Two modern rabbinic scholars have significantly emended the text of the Sifre here, using the printed edition (virtually identical to MS London), but pulling it into accord with the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov tradition. Thus, the Gaon R. Elija of Vilna (the GRA) (1720–97), in “his emendations,” renders our difficult concluding lines as follows:

.משה גדול הוא ואלו לא באו אחרים לא היתה תורתו שוה אנו על אחת כמה וכמה כול‘

Moses was great, but if others had not come (to receive it), his Torah would not have been worth (a thing). How much more is this the case for us!

Similarly (but without acknowledged awareness of the GRA’s emendation), Louis Finkelstein renders the end of our midrash as follows:

אילו אין משה גדול ואילולא אחרים קבלו תורה על ידו לא היתה שוה. [אנו] על אחת כמה וכמה. לכך נאמר, ‘“אשר תצום את בניכם”’.

With all of Moses’s greatness, had no one received his Torah, it would not have been worth [a thing]. How much more is this the case [for us]!³⁸ Therefore it says, “Enjoin them upon your children [to keep].”

Notwithstanding these text-critical challenges at the end of the midrashic passage, and my preference for the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov recension, the various versions share some important exegetical features. In order to understand and appreciate them, it is first necessary to recognize an aspect of the biblical verse that might at first have gone unnoticed by the non-midrashist. We might have expected Moses to enjoin his immediate audience to observe the commandments once they had crossed over the Jordan River and entered the land, but without any longer the advantage of his charismatic, prophetic teaching and leadership. However, the biblical verse has Moses enjoin, rather, his audience to command their children to observe³⁹ all of the Torah’s commandments, presumably in perpetuity (as would seem to be the implied meaning of verse 47).⁴⁰ Thus, in Moses’s final days, his public role as commander and teacher in chief is not transmitted so much to future national leaders (e.g., Joshua according to Numbers 27:12–23; Deuteronomy 31:2–8; and 34:8–9; or Ezra according to Nehemiah 8:1–8) as to the succession of parents and future parents in the private setting of the family or home.⁴¹

Turning to the midrashic comment to the second half of the verse (32:46b), it paraphrases Moses’s speech to the people in a strikingly altered form and emotional tone. No longer is Moses the authority figure who commands absolute obedience to “all the words of this Teaching (Torah),” but a suppliant who implores the people not only to maintain themselves the “words of Torah” after his impending death, but to beseech their children to do the same. Subtle as the change is, the verb lishmor (observe) in the biblical text is replaced by leqayyem (to maintain, which rabbinically denotes as well study and memorization) in the midrash.⁴² Impotent, as it were, any longer to command, Moses must employ moral persuasion in the hope that the people will both maintain the words of Torah and, perhaps even more importantly, transmit them to the next generation, and for it, implicitly at least, to do the same in turn in perpetuity.

As if to signal, from the advantage of hindsight, that Moses and the successive generations of Israelites succeeded in so fulfilling and transmitting the Torah laws, we are suddenly transported forward in time approximately fourteen hundred years to the study, as it were, of R. Judah the Patriarch, who as purported editor of the Mishnah, the earliest and most consequential digest of rabbinic Torah law, might be (and is) thought of as a latter-day Moses. R. Judah the Patriarch, we may infer, is either toward the end of his life or anticipating it (“after me”). He, we are told, has just returned from a mission of some sort to Laodicea (probably the one on the Lycus), a heavily hellenized Roman provincial city in Asia Minor (modern-day Turkey), with a substantial Jewish (and Christian) population. From the story, we do not know what R. Judah the Patriarch experienced there, but it would seem to have caused him to worry about the present and/or future state of Judaism in a highly hellenized environment. Inviting two students to come close (doubly expressed in some witnesses such as MS London), thereby indicating perhaps intimacy, but also urgency, he says to them, in the words of the midrash, exactly what Moses said to the people at the end of his life, some fourteen hundred years earlier. In this context, “children” could mean biological offspring or “students,” intellectual offspring, or both.⁴³ The pathos here is similar to that of Moses in his waning days. With all the learning and authority that R. Judah the Patriarch commands, he cannot successfully command or coerce his students, but can only implore them to fulfill and transmit what he has imparted to them to their children/students, and so on. R. Judah the Patriarch is clearly portrayed here as a latter-day Moses, perhaps also implying a parallel in status between their respective Torahs (Written and Oral), and the fragile nature of both.⁴⁴

The absolute identity of the midrashic words of Moses to those of Rabbi Judah the Patriarch, and the similarity and shared pathos of their situations, might lead us to overlook some fundamental differences between them. Moses is publicly addressing the whole Israelite people, while Rabbi Judah the Patriarch is privately (and intimately) addressing two of his students (their being two allows Rabbi Judah the Patriarch to employ the same second-person plural forms of address as does Moses). There is a shift from a great leader publicly enjoining the “corporate” Israel, to a later great teacher who does so privately to two individuals (and their children/students). Thus, Moses’s message and role, as midrashically construed, has become more individualized (and intimatized) with time, as, presumably, it has become for the “we” of the midrash’s presumed audience,⁴⁵ who as autonomous individuals, may be moved (or not) to compliance by the rhetoric of mitzvah as legacy. Both Moses (as midrashically reinvented) and Rabbi Judah the Patriarch seek not just immediate observance of the commandments, but long-term maintenance of “words of Torah,” now entrusted to internalizing textual study among small groups of masters and disciples, rather than to mass acceptance of the laws by the people as a whole.⁴⁶ Survival of Torah depends as much on its private as public transmission through performance.⁴⁷

Note as well the subtle role reversal of master and students (or “patron” and “clients”). While they come, presumably, with the intent of paying their respects to Rabbi Judah the Patriarch (note the hierarchical language of “they entered and sat before him”), it is he who is now revealed to be dependent on their “favor.” The honor that they expect to bestow upon him is now reversed, being no longer an expression of his superior status but of his total dependence upon them to carry forward his teaching.⁴⁸

The full pathos of Moses’s words (and by extension, those of R. Judah the Patriarch) is indicated in the concluding sentence of the midrashic commentary, regardless of which textual strand one prefers to follow. In either case, the critical role of transmission across the generations (whether by children or by students) is emphasized, while the commanding role of Moses (and of R. Judah the Patriarch) is sidelined. Moses’s prophetic greatness does not ensure the “maintenance” of Torah teaching, but rather is contingent upon it, that is, upon the reception, fulfillment, and transmission of his words (understood to encompass the totality of rabbinic “words of Torah”)⁴⁹ by successive generations, not of prophetic leaders (as in the “chain of transmission: in the opening lines of Pirqe ʾAvot), but of teachers and parents able to impress the laws and teachings of his Torah upon their students and children to both observe and transmit. Otherwise, we are told, it is as if Moses’s Torah (and, we might infer, Moses himself, and, by extension, R. Judah the Patriarch) would not have been of any worth or consequence.⁵⁰

The midrash, at least as explicitly emended by the GRA and by Finkelstein, and as less boldly asserted by MS London’s introduction of “we,”⁵¹ makes one final, gigantic, temporal leap, as it were, this time to the present of the text’s auditors, with another argument of qal vaḥomer (although not fully tagged as such and absent in the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov recension): Just as Moses’s (that is, his Torah’s) worth, with all of his greatness, was entirely contingent on his ability to impress the responsibility of transmission on the minds and hearts of his successors, how much more is that the case “for us”(ʾanu), who, shrink before the greatness of Moses (and by association, before that of R. Judah the Patriarch). Or, as MS London expresses it, the maintenance and transmission of the Torah is contingent on “us” rather than on Moses’s prophetic greatness and revelatory authorship. Even had he not been so great, or not been the Torah’s commander to begin with, “we” would still have been expected to receive, maintain, and transmit it in perpetuity. How much more so with Moses and his greatness! Nevertheless, the Torah could have been maintained (or not) by “us” without him. Ironically, “we,” in effect, are now the equals (at least) of Moses and R. Judah the Patriarch in bearing the weight of the continuity of the chain of transmission. They are as dependent on “us” to maintain their “words of Torah” as “we” are dependent on them for the “words of Torah”’s prophetic and canonical authority. Although not explicitly stated here by the Sifre, “our” inclusion as the latest link in this chain is midrashically effected by the biblical verse’s prescient reference in 46a to “this day,” as if signaling the longue durée of the perpetual present, in which every successive day is signified by “this day.”⁵²

VI Conclusions

In conclusion, let me first address the question of whether the two halves of our midrash constitute a whole, greater than the sum of its parts, even as each can stand perfectly well on its own. Both halves are honest yet radical in emphasizing the precariously fragile, unstable nature of “words of (rabbinic/oral) Torah,” especially as transmitted orally through study and memorization. The first does so by comparing “words of Torah” to “mountains suspended by a hair,” referring either to their tenuous scriptural warrants (as in the parallel in m. Ḥagigah 1:8), or to the tenuous task of their retention and transmission through memorization, at any moment liable to being severed from their roots by the cutting of their hairline suspensions.⁵³ The second does so by emphasizing the inter-generational human challenge to observing and transmitting “words of Torah” from teacher to student and parent to child, without the ability (already with Moses) of being able to command absolute fidelity.

Not only do the two halves of the midrash share with each other the rhetorical argument of qal vaḥomer (but not as explicitly in the second half), but they both do so with irony, reversing the seemingly obvious designation of “heavy” and “light”: the Temple is no more sturdy than the fragile “words of Torah,” and Moses (and R. Judah the Patriarch by association) is no greater than his successors when it comes to obligating the next generation to observe the commandments. “Our” “words of Torah” are as fragile as were theirs, and “we” are as impotent as were they to command obedience from our children and/or students. In the end, all “we” can do is implore them (as were “we”) to carry forward the charge, based on a rhetoric, no longer of Sinai-based commandment, but of cross-generational fidelity to legacy.

Thus, in addition to (or between) Cover’s rhetorical, mythic vectors of law as social contract (rights) and law as Sinaitic revelation (commandments), we might interpose that of law as legacy, which draws upon and nourishes both, without necessarily negating or superseding either: upon the myth of Sinai for its diachronic, inter-generational transmission of commandments (even without an immediate Commander-in-Chief or Lieutenant Commander), while upon the myth of social contract for its synchronic creation of sympathetic communities. Both can instill and inspire “bonds of solidarity,” as Cover terms them, whether vertically or horizontally. But so too can law as historically transcendent legacy, extending both back to Sinai in shared memory and forward through the present of shared community to the next generation (at least) in unassured anticipation and aspiration. Stated differently, Moses retains (at least for now) his greatness, but it remains precariously dependent upon “our” bonds of both collective and individual solidarity with both one another and with his legacy. In that regard, we might compare Edmund Burke’s understanding of the inter-generational grounding of law in society. For example, “[The state] becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”⁵⁴

Circling back to Cover, we can say that a central mythic component of the Jewish legal legacy is the self-understanding of “being commanded.” Even the anarchist in Cover would recognize law as commandment and law as legacy (like nomos and narrative) as two dialectical sides of the same coin, both being expressed by the same Hebrew verbal root, tzivah. Similarly, we might say (if we had a three-sided coin), that Cover’s two foundational myths of law as contract (rights) and law as revelation (commandments) can only be deepened by their integration with law as legacy, which incorporates both rights and obligation.

12 “Between Man and God” and “Between Man and His Fellow” Categories in Polemical Context

Itzhak Brand

I Introduction

The distinction between precepts that are “between Man and God” (bein adam la-maqom) and those that are “between Man and his fellow” (bein adam le-ḥavero) is generally taken to be a general consensus view, going back to its first appearances in the talmudic corpus. Due to the distinction’s simplicity, few have dealt with it, including its historical context. But an examination of the tannaitic literature, where the two categories were documented, reveals that there was disagreement about the distinction between them.

This chapter will present the disagreement in its historical context, proposing that it should be viewed in light of a latent dispute pitting the talmudic sages, especially those of the second and third generations at Yavneh, against the early Christian literature that was contemporary with them, and perhaps also the Roman law of that period. The chapter will also address the related issue of the arrangement of the Ten Commandments on the two Tablets of the Law. Early Christianity mostly saw the separation between two units of the Ten Commandments as a clear expression of the distinction between the two types of precepts, but a widespread sages approach rejected such a categorical distinction and thus also the division of the Ten Commandments onto two tablets.

II Belloria the Convert’s Question

The distinction between the two categories of precepts, “between Man and God” and “between Man and his fellow,”¹ appears to have been first documented in the academy at Yavneh in the second and third generations of the tanna’im, in the reply by Rabbi Jose the Priest, one of Rabban Johanan ben Zakkai’s disciples,² to a question posed to Rabban Gamaliel of Yavneh. Belloria, a Roman matron who had converted to Judaism, asked Rabban Gamaliel as follows: Belloria the convert once asked Rabban Gamaliel: It is written in your Torah: “The great, mighty, and awesome God who favors no one [and will not take bribes]” (Deuteronomy 10:17), and elsewhere it is written: “The Lord shall show favor to you and give you peace” (Numbers 6:26). In short: Does the Lord pardon sinners or does he reject their appeals for forgiveness? When Rabban Gamaliel, for whatever reason, did not respond, Rabbi Jose the Priest spoke up:

I will tell you a parable. To what is this matter comparable? To a person who lent his friend one hundred dinars and fixed a time for repayment of the loan before the king, and the borrower took an oath by the life of the king that he would repay the money. The time arrived, and he did not repay the loan. The delinquent borrower came to appease the king for not fulfilling the oath that he had sworn by the life of the king, and the king said to him: For my insult I forgive you, but you must still go and appease your friend. Here also the same is true: Here, the verse that states: “The Lord shall show favor to you,” is referring to sins committed between man and God, which God will forgive; there, the verse that states: “God favors no one,” is referring to sins committed between a person and another, which God will not forgive until the offender appeases the one he hurt.

This is how the contradiction was resolved, until Rabbi Akiva came with a different explanation:

Here the verse is referring to the time before one’s sentence is issued, when God shows favor and forgives; and there the verse is referring to the time after the sentence has been issued, when He no longer forgives.³

Rabbi Jose the Priest holds that divine justice must be unbiased – “who favors no one and will not take bribes”; this applies to transgressions between Man and his fellow.⁴ However, God does grant absolution for transgressions between man and God,⁵ because they affect only Him, and a king can pardon offenses of lèse majesté.⁶ The text and style of the baraita suggest that Rabbi Jose’s statement was made in a polemical context, and especially because he is responding to the query of a convert who was formerly a Roman matron.⁷ Her question is belligerent and polemical, beginning “it is written in your Torah.”⁸ The term used to describe R. Jose’s intervention, nitpal lah – “he dealt with her”⁹ – is also typical of polemic encounters.¹⁰

Rabbi Jose’s words, possibly uttered in the heat of debate, remained unchallenged until Rabbi Akiva offered an alternative reply. The locution “until Rabbi Akiva came and taught” appears several times in talmudic literature, where it signals a homiletic or ideological revolution and significant innovation by Rabbi Akiva, generally in the field of halakhah.¹¹ The use of this locution, then, indicates that Rabbi Akiva’s proposal is not meant only as an additional reply to Belloria’s question and is not simply a homiletic exegesis. Rather, it is an innovation on a matter of principle, stating that divine judgment is not contingent on the type of positive actions or transgressions attributed to a person, but on the stage of divine judgment: after the sentence has been rendered, the divine judgment is final and cannot be undone. But until then, God can forgive all transgressions, including those between two individuals. Thus, Rabbi Akiva denies the distinction between types of transgressions and holds that divine justice deals in the same fashion with all transgressions, whether they offend God or other human beings.

Later we will try to understand Rabbi Akiva’s position on this matter of principle in light of the polemic. First, though, we will examine another tannaitic exegesis, in which Rabbi Akiva again opposes the distinction between transgressions towards God and transgressions towards human beings.¹²

III Rabbi Eleazar ben Azariah’s Homily

The distinction between transgressions against God and those against other human beings returned to the academy (beit midrash) at Yavneh in the following generation, raised by Rabbi Eleazar ben Azariah:

“For on this day He shall atone for you [to purify you from all of your sins; before the Lord you shall be purified]” (Leviticus 16:30) …

For transgressions between man and God, Yom Kippur atones; for transgressions between Man and his fellow, Yom Kippur does not atone, until he conciliates his fellow.

R. Eleazar b. Azariah expounded this as follows: “Of all of your sins before the Lord you shall be purified”: For matters between yourself and God, you are pardoned; for matters between yourself and your fellow, you are not pardoned until you conciliate your fellow.¹³

As pertains to Yom Kippur, the distinction between the categories (precepts that apply between Man and God and those that apply between Man and his fellow) is anchored in the biblical text. In his homily, Rabbi Eleazar ben Azariah repunctuates the verse in a way that implicitly creates a category of “transgressions between Man and God”: “From all of your sins before the Lord – you shall be purified” (Leviticus 16:30). That is, there is a category of “transgressions before the Lord,” for which alone there is atonement and purification. Yom Kippur itself atones only for sins “before the Lord,” but not for “matters between yourself and your fellow.”

Here too Rabbi Akiva seems not to accept the distinction between two categories, or the homily through which they are derived. The last mishnah in tractate Yoma presents a homily by Rabbi Akiva that parallels that of R. Eleazar ben Azariah:

R. Akiva says, Happy are you, Israel! Before whom are you purified, and who purifies you [of your transgressions]? Your Father Who is in heaven. For it is said, “Then will I sprinkle pure water upon you, and ye shall be pure”; and it is also said, “The ritual bath [lit. Hope] of Israel is the Lord”; even as a ritual bath purifies the impure, so does the Holy One, Blessed be He, purify Israel.¹⁴

Rabbi Akiva is responding to Rabbi Eleazar ben Azariah’s homily. According to his reading, the Israelites are purified before God. Rather than reading “from all your sins before the Lord – you shall ye be purified,” he reads “From all your sins – before the Lord you shall be purified.”¹⁵ That is, “before the Lord” does not apply to the sins, limiting them to those between human beings and God, but to the quality of purification: the Israelites are purified before God, who purifies them himself;¹⁶ the atonement worked by Yom Kippur and the purification by God apply both to transgressions against God and those against one’s fellow human beings.¹⁷

In this homily, too, Rabbi Akiva seems to take issue with the distinction that Rabbi Eleazar ben Azariah makes between types of transgressions. We may conclude that this distinction is a matter of disagreement among the tanna’im. Rabbi Akiva does not accept it because he believes that transgressions against one’s fellow are also transgressions against God.¹⁸ What is the import of his position?

IV A Disagreement with a Polemical Background

In this section, we will examine Rabbi Akiva’s position in the context of a debate that raged, mainly below the surface, between his notion and various positions taken by early Christian thinkers. Above, with reference to Belloria the convert, we noted the polemical elements in the background of this first appearance of the distinction between the two categories of “Man and God” and “Man and his fellows.” In that story, we identified linguistic and literary features relevant to a polemic, but the matter at dispute is not obvious.

Belloria’s question seems to be testing the limits of divine forgiveness, and, thus, of divine justice. Rabbi Jose the Priest’s answer may be taken as tactical and superficial: transgressions between a man and his fellow do not fall under the purview of divine justice and fall into the exclusive jurisdiction of human instances. As in the parable, a debt to one’s fellow does not concern the king.¹⁹ Rabbi Jose the Priest’s proposal evidently satisfied the second generation at Yavneh. Later, however, Rabbi Akiva rejected it by asserting that divine judgment applies also to transgressions between Man and his fellow, which, like those between man and God, can be pardoned only until the final verdict has been rendered.

The tannaitic discussion centers on the legal and religious status of the norms of personal conduct. A similar question seems to have been at the center of a polemic between Rabbi Akiva and early Christianity.

In Jerusalem, Jesus responds to a question posed by one of the Pharisee “experts in the law”: “Which is the great commandment in the law [Torah]?”²⁰ He replies:

And he said to him, “You shall love the Lord your God with all your heart, and with all your soul, and with all your mind. This is the great and first commandment. And a second is like it, You shall love your neighbor as yourself. On these two commandments depend all the law and the prophets”

(Matthew 22:34–40).²¹

A few decades later, Rabbi Akiva replied to the same question in a completely different way (Sifra, Qedoshim II 4:12):

“‘And you shall love your fellow as yourself” (Leviticus 19:18)—Rabbi Akiva says: This is a great rule in the Torah.” Ben Azzai says: “This is the book of the genealogy of Man [, on the day God created Man, He made him in the divine image]” (Genesis 5:1) is an even greater rule than that.²²

Rabbi Akiva, unlike Jesus,²³ focuses on a single golden rule – love your fellow.²⁴ Of course, we should not conclude from this that Rabbi Akiva discarded the precept to love God; he also ruled, based on the verse, “And you shall love the Lord your God with all your might” (Deuteronomy 6:5), that this applies “even if He takes your life.”²⁵ It appears, rather, that Rabbi Akiva believed that the obligations to love one’s fellow and love God are interlinked, just as the verse itself links the two domains of relationships: “And you shall love your fellow as yourself, I am the Lord” (Leviticus 19:18).²⁶ In other words, the declaration “I am the Lord” follows the commandment to love one’s fellow in order to teach that loving one’s fellow is not only a human and social matter but in fact derived from the obligation to honor God, because God made humans in the divine image.²⁷

V The Two Tablets

The polemic between some of the tanna’im and early Christianity about the relationship between one’s duties to God and those to other people can be examined from an additional perspective: the arrangement of the Ten Commandments on the two Tablets of the Law.

A The Division

The notion that the Ten Commandments were divided between the two Tablets of the Law appears frequently in medieval Jewish philosophy and biblical commentaries.²⁸ The idea is that the Ten Commandments were divided equally: the first five, commandments “between Man and God,” were written on one tablet, and the second five, commandments “between Man and his fellow,” were written on the second tablet. Various considerations seem to lie behind this separation, both practical and textual.

Let us begin with the practical considerations. In the ancient Near East, most texts were written on a single tablet. Hence breaking up a rather short text onto two tablets may well indicate some internal distinction between the two parts, and the division of the commandments between the tablets might be the result of this distinction.²⁹ Moreover, the Decalogue is a fundamental and important text, one that should be committed to memory. The division into two sets of five is convenient for this purpose, because it is common to use the fingers to tally memorized items, and two sets of five corresponds to the fingers on each hand.³⁰

There are also textual considerations. Several literary and philological elements distinguish the first five commandments from the second five. Commandments six through ten (as found in Deuteronomy 5:17–18) are linked by the conjunctive vav, whereas the first five commandments are separate statements.³¹ In addition to this syntactic difference, there are a number of literary differences as well. God’s name appears (either as Elohim or as the Tetragrammaton) in each of the first five commandments, but never in the second five.³² All those in the first group are lengthy and include their rationales and in some cases the reward or sanction for their observance or violation; whereas the second five are short and laconic,³³ absolute prohibitions with no explanation or stated reward.³⁴

B Philo: The Roots of the Idea

Given these reasons – both the practical and the textual – the bipartite division of the commandments and the corollary distribution between the two tablets appear quite logical. However, the first explicit mention of this division seems to be by Philo of Alexandria, in his treatise on the Ten Commandments:³⁵

He divided the ten into two sets of five which He engraved on two Tables. … The superior set of five. … Thus one set of enactments begins with God the Father and Maker of all, and ends with parents who copy His nature by begetting particular persons.³⁶

… the fifth commandment on the honour due to parents … He placed on the border-line between the two sets of five; it is the last of the first set in which the most sacred injunctions are given and it adjoins the second set which contains the duties of man to man.³⁷

Philo’s division of the commandments between the two tablets derived from his fundamental view of both the tablets and the Torah precepts in general. He believed that the tablets, and the Ten Commandments written on them, included all the precepts,³⁸ which were divided into two main branches or main headings:

But among the vast number of particular truths and principles there studied, there stand out practically high above the others two main heads: one of duty to God as shewn by piety and holiness, one of duty to men as shewn by humanity and justice …³⁹

Thus the bipartite division of the commandments, which, for Philo, include all the precepts, reflects the two categories of precepts: the first tablet deals with “duty to God,” and the second with “duty to men.”

C The Christian World

Philo’s thesis has echoes in the Christian world. The idea of the distinction between the two tablets can be found as early as Paul’s Epistle to the Romans, at least partially and indirectly.⁴⁰

Owe no one anything, except to love one another; for he who loves his neighbor has fulfilled the law. The commandments, “You shall not commit adultery, You shall not kill, You shall not steal, You shall not covet,” and any other commandment, are summed up in this sentence, “You shall love your neighbor as yourself.” Love does no wrong to a neighbor; therefore love is the fulfilling of the law.⁴¹

Paul writes that the second five commandments are summed up by the core rule of loving one’s neighbor as one’s self. While he does not explicitly mention Jesus’s “double core rule” of loving God and loving one’s fellow, it is possible that he hints at it when he mentions “any other commandment” and “the law.” If so, the first five commandments are summed up by the other commandment to love – “You shall love the Lord your God.”⁴²

D The Talmudic Literature

We have seen that the idea of a distinction between the first five and the second five commandments, and their separate inscription on the two Tablets of the Law, originated with Philo and was taken over by early Christianity and the Church Fathers. The idea was also common in the rabbinic scholarship of the Middle Ages. Now we must ask how the talmudic sages viewed this idea.

There does not seem to have been a consensus among them on this matter. The majority position opposed the idea of the distinction, holding that all ten commandments were written on each of the two tablets, possibly on both sides. The division into five on each tablet was a minority opinion:

How were the tablets written?

Rabbi Ḥananiah ben Gamaliel says: “Five on one tablet and five on the other tablet.” This is as is written: “And he wrote them on two stone tablets” (Deut. 4:13): five on one tablet and five on the other tablet.

And our rabbis say: “Ten on one tablet and ten on the other tablet.” This is as is written (Deut. 4:13): “He declared to you the covenant that He commanded you to observe, the Ten Commandments … ”: ten on one tablet, and ten on the other tablet.

Rabbi Shimon ben Yohai said: twenty on one tablet and twenty on the other tablet. As is written: “And he wrote them on two stone tablets” (Deut. 4:13): twenty on one tablet and twenty on the other tablet.

Rabbi Simai says: forty on one tablet, and forty on the other tablet. “From this side and from that side they were written” (Ex. 32:15): a tetragon (solid with four written faces).⁴³

For most of the tanna’im, the Ten Commandments constitute a single indivisible unit. Because the Ten Commandments are described as written on two tablets and on both of their sides, they must have been written twice on each tablet, for a total of four times, and possibly even on all four sides of each tablet, for a total of eight times. The minority opinion⁴⁴ is not comfortable with the notion of such repetition and consequently divides them between the two tablets, five on each.⁴⁵

We might propose that the disagreement here is relevant to the distinction between the types of precepts – those “between Man and God” and “between a man and his fellow.” That is, perhaps the minority opinion divides the commandments into five on each tablet because it supports this distinction. However, examination of Rabbi Hananiah ben Gamaliel’s homily in the Mekhilta reveals that this is not the case:

How were the Ten Commandments arranged? Five on the one tablet and five on the other.

On the one tablet was written: “I am the Lord thy God.” And opposite it on the other tablet was written: “Thou shalt not murder.” This tells that if one sheds blood is accounted to him as though he diminished the divine image. …

On the one tablet was written: “Thou shalt have no other god.” And opposite it on the other tablet was written: “Thou shalt not commit adultery.” This tells that if one worships idols it is accounted to him as though he committed adultery, breaking his covenant with God. …

On the one tablet was written: “Thou shalt not take [the Lord your God’s name in vain].” And opposite it on the other tablet was written: “Thou shalt not steal.” This tells that he who steals will in the end also swear falsely. …

On the one tablet was written: “Remember the Sabbath day,” and opposite it on the other tablet was written: “Thou shalt not bear [false witness against your fellow].” This tells that one who violates the Sabbath as it were bears witness before He who spoke and the world came into being that He created his world in six days and did not rest on the seventh, and one who keeps the Sabbath bears witness before He who spoke and the world came into being that He created his world in six days and rested on the seventh …

On the one tablet was written: “Honor your father [and your mother,” and opposite on the other tablet was written: “Thou shalt not covet.” This tells that one who covets will end up bearing a son who curses his father and honors those who are not his father.

It was for this that the Ten Commandments were arranged five on one tablet and five on the other.—These are the words of Rabbi Ḥananiah, the son of Gamaliel.

And the sages say: ten on one tablet, and ten on the other tablet, as it is written: “And these words spoke the Lord to all your congregations … ” and “Your two breasts are like two fawns … ” (Song of Songs 4:5) and “His hands are rods of gold … ”

(ibid. 5:14).⁴⁶

For Rabbi Hananiah ben Gamaliel, the division of the commandments between the tablets is actually meant to negate the distinction into two categories; their parallel inscriptions (“On the one tablet was written … and opposite on the other tablet was written … ”) emphasized their integration and complementary nature.⁴⁷ The complementarity goes both ways. On the one hand, precepts “between a man and his fellow” are also “between Man and God.” Murder is not only a transgression between human beings but also between humans and God, inasmuch as one who spills blood has also assaulted God’s image;⁴⁸ similarly, theft may lead to false oaths. On the other hand, precepts “between Man and God” are linked to those “between a man and his fellow”: an idolater is like an adulterer, and one who observes or violates Shabbat is like a witness standing before the judges.⁴⁹

We conclude that the tanna’im rejected the notion that the Decalogue has two subsets – commandments “between Man and God” and those “between Man and his fellow.” First, the idea of such a division has no explicit source in talmudic literature.⁵⁰ Second, in the sources that do discuss the arrangement of the Ten Commandments on the two tablets, the majority opinion rejects the idea and holds that all ten were written as a single unit. Third, the minority opinion, which posits a physical division of the Ten Commandments onto two separate tablets, believes that this division was meant to lead to an integrated reading. This does not accord with the idea that the Decalogue falls into two subsets and instead supports a harmonization of the different categories of commandments.⁵¹

It appears, then, that a widespread position of the talmudic sages rejects the idea of a division of the precepts into those “between Man and his God” and those “between Man and his fellow.” All the tanna’im oppose the early Christianity approach that maintained this division. This may support the possibility that the issue was an item of dispute between Jews and Christians.

VI Final Thoughts

Above we discussed the relationship between the two “wings” of halakhah – the “religious” and the “sociolegal” – in the rabbinic literature, and against the background of the parallel Jewish-Christian debate. We chose to focus on those aspects that we see as primary, from a philological-historical approach to the rabbinic literature. However, there are clearly other aspects that may affect the question of the relationship between the two wings. Here, briefly, are three of them:

1. A. Legal theory aspect: One of the basic tools used to organize a scientific system is taxonomy.⁵² Legal taxonomy sorts and organizes the law, dividing it into families, branches, groups, etc. Three types of legal taxonomy can be differentiated:⁵³

   1. (1) Formal taxonomy classifies and explains law from a theoretical perspective, and has no normative or practical ambitions.⁵⁴

   2. (2) Functional taxonomy defines the framework of the dispute between litigants and helps resolve them. This mode of organization may have a normative influence, although it is indirect and focused on the particular case and its outcome.

   3. (3) Rational taxonomy is the most activist of the three. It offers a normative explanation and meaning, and thus influences decision-makers in both the legislature and the judiciary.

      The distinction between the types of precepts might be made in any of these taxonomies. In the tannaitic literature it appears in the attempt to resolve a theological and exegetical problem, evidently in the context of the Jewish-Christian polemic. This distinction might therefore be formal, and perhaps even functional. However, it is doubtful whether it also claims to define a general theological and legal position.

2. B. The epistemological aspect: The human mind may relate to different and contradictory factors within a single system in two polar ways. One of them is dichotomous and dualistic.⁵⁵ Here reality is seen as separate entities: the metaphysical is distinct from the physical, and the divine from the natural. Therefore, according to this method, in a normative system there will be a separation between the legal wing and the religious wing.

   Another method proposes a harmonious and complementary approach.⁵⁶ It sees disparate and even contradictory phenomena as different and complementary facets of a single harmonious entity.⁵⁷ Torah law completes what is missing in natural morality and human law, and views civil law as simultaneously religious law. In this way, the precepts “between man and his fellow” may also be an aspect of “between man and God.”⁵⁸

3. C. The religious aspect: Ernst Akiva Simon distinguished two paradigms of religion: “Catholic” and “Protestant.” The Catholic pattern is total: religion is involved in every aspect of life; and just as God is present everywhere and everything is subject to His authority, so too all normative systems are subordinate to religion. The Protestant paradigm is “softer.” Here religion is flexible and liberal regarding aspects of life that are not clearly religious and grants them autonomy.⁵⁹

The “Catholic” paradigm will not acknowledge a distinction between precepts that are between man and God and precepts that are between man and his fellow. The “Protestant” paradigm can do so. About a century ago there was a sharp debate between representatives of the two modes, with regard to the application of halakhah as a legal system in a modern Jewish state.⁶⁰ The secular wing affiliated with the Hebrew Law Society called for a separation between “religious law” and “civil law.” The religious Zionist wing opposed this vehemently:

If for other peoples, religion and state are two domains, … for the Jewish people both of them, religion and state, are bound together and connected, and anyone who would separate them is cursing the people’s soul. Our Torah contains not only precepts between man and God, but also precepts between man and his fellow and between man and his country …⁶¹

The ideas presented in this chapter may support the latter position. The controversy hovers above the question of the separation that took place in its infancy during the second and third generations in Yavne. A reexamination of the statements by the tanna’im, against the background of the Jewish-Christian debate of those years, may lead to the conclusion that the rabbinic literature tends to reject the distinction and to combine the precepts between man and his fellow with those between man and God.

Appendix A (Note 6): Between Ius Divinum and Ius Humanum in Roman Law

Roman law distinguishes religious law from secular law. It recognizes both fas (divine law or sacred law) and ius (human law). According to the definition by Servius Sulpicius Rufus, “fas relates to religion, and iura to humans” (“Ad religionem fas, ad homines iura pertinent”).⁶²

The roots of this distinction is in the Twelve Tablets. There, in the first foundations of Roman law, we encounter a paradox: law is strictly secular in nature, even though intended for an especially religious society.⁶³ The background here is sociopolitical: in the early fifth century BCE, in the wake of a severe socioeconomic crisis, tension emerged between the ruling elite (the Patricians) and the masses (the Plebeians). The Plebeians organized themselves in various political groups and demanded a written code to regulate the relations between the citizen and the state.⁶⁴ The written law – the Twelve Tablets – was enacted for the Plebeians; but religious laws were removed from it, because that applied to the Patrician religious establishment.⁶⁵ Thus the sociopolitical tensions created a paradox of legal theory and a normative tension between the “religious” and the “legal.”⁶⁶

The gulf in Roman law between “divine” law and the “law” deepens in the wake of the Christian influence on Roman law.⁶⁷ This influence is already discussed in the second half of the fourth century, in the Liber quaestionum attributed to Ambrosiaster.⁶⁸ In various passages the author describes Paul’s separation of human law from divine law and the adoption of this Pauline idea by Roman law.⁶⁹

Appendix B (Note 23): Rabbi Akiva and Early Christianity – Another Polemic

It is possible that Rabbi Akiva’s integration of love for one’s fellow and love for God is at the heart of another polemic between him and early Christianity:

Love all these (disciples and am ha’-ares) and hate the sectarians, apostates and the informers …

[Rabbi Akiva says: “Yet it says,] ‘But thou shalt love thy neighbour as thyself: I am the Lord. And why is that? Because I [the Lord] have created him. Indeed! If he acts as thy people do, thou shalt love him; but if not, thou shalt not love him.”

Rabbi Simeon ben Eleazar says: “This matter was stated with a great oath: ‘And you shall love your fellow as yourself [because] I am the Lord,’ who faithfully pays rewards and extracts punishment.”⁷⁰

Both the text and meaning of Rabbi Akiva’s homily are doubtful. According to our version (in footnote 71), the homily seems to be based on the declaration “I am the Lord” that is attached to the injunction to love one’s fellow.⁷¹ This declaration bases the obligation to love one’s fellow on the fact that all human beings were created in the divine image: “And you shall love your neighbor as yourself [I the Lord have created him].”⁷² A person who shirks his connection to God and does not act “like one of your people” is not worthy of his fellow’s love.⁷³

Jesus opposed this. In the Sermon on the Mount he prescribes love for all:

You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, Love your enemies and pray for those who persecute you, so that you may be sons of your Father who is in heaven; for he makes his sun rise on the evil and on the good, and sends rain on the just and on the unjust. … You, therefore, must be perfect, as your heavenly Father is perfect.⁷⁴

Jesus is familiar with the traditional homily (“you have heard”) that limits the love of one’s fellow by excluding the wicked,⁷⁵ but turns it on its head: Yes, love for one’s fellow derives from “I am the Lord.” But precisely for this reason one must love also one’s enemies and the wicked, because they too are the children of their Father in Heaven, who is perfect, and who does not distinguish in his mercies, whose sun shines and rains fall on righteous and wicked alike.⁷⁶

The two homilies – Rabbi Akiva’s and Jesus’s in the Sermon on the Mount – share an assumption: that “And you shall love your fellow as yourself” and “I am the Lord” are linked. Both assume a connection between the obligation to love one’s fellow and imitatio Dei, but apply the latter in different ways: Rabbi Akiva infers that only fellow-men who follow in the path of the Lord are worthy of love, whereas Jesus preaches that it is God’s love of all His creatures and benevolence towards them – including our enemies and the wicked – that is to be emulated.

It is possible that underlying this unspoken debate between Rabbi Akiva and early Christianity is the relationship between obligations towards God and obligations towards other human beings. Rabbi Akiva integrates the two categories and makes one depend on the other: those who breach their obligations to God do not merit the fundamental right at the basis of societal norms.⁷⁷ Early Christians rejected this link and viewed the two types of duties as parallel, separate, and independent. Love for one’s fellow is mandatory, even if it indirectly detracts from God’s honor.

Appendix C (Note 42): The Division of the Ten Commandments in Augustine

The idea of the division of the commandments between the two tablets appears, explicitly and systematically, in Augustine.⁷⁸ He presented the “golden rule” as the basis for the Ten Commandments and proceeded to explain their division between the two tablets accordingly:

So that one commandment [the commandment to love] contains two [the commandment to love God and the commandment to love one’s fellow], those two contain ten, those ten contain them all.⁷⁹

According to Augustine, the allocation of the Ten Commandments among the tablets is not five and five. Rather, there are three commandments that refer to love of God (the first, which is belief “I am the Lord” and “You Shall have no other gods”; the second (in the Christian enumeration), the prohibition against vain oaths – “Thou shalt not take the Lord’s name in vain”; and the third (still in the Christian enumeration, remembering and observing the Sabbath), and seven commandments that refer to love for one’s fellows (including the precept of honor one’s parents).⁸⁰ Thus Augustine finalizes the division into two categories; henceforth the precepts that apply between Man and God are distinct from those that apply between Man and his fellow.⁸¹

13 Christian Feasts and Administration of Roman Justice in Late Antiquity

Silvia Schiavo

I Introduction

Law as religion and religion as law: these expressions evoke the intertwining of two experiences, the legal one and the religious one, which characterizes every society, ancient and modern.

In pagan Rome the interconnection between fas and ius led to noteworthy consequences. Think, for example, about the role of the pontifices, not only in the religious dimension, but also in the interpretation and creation of law or, further, the close connection, in various legal and government contexts, between the magistracies and the sacerdotal colleges.¹

In this work, however, our attention is drawn towards late antiquity and the relationship between the Christian religion and imperial legislation on administration of justice.

We will look at the problem of the articulation of the “times” of trials which, from a certain moment onwards, took on the Christian dimension of time as a new point of reference, examining how Christianity managed to influence the rhythms of the judicial administration.

Since the second century, the central Christian feasts were Sunday and Easter, both referred to the resurrection of Christ. As time has gone on, particularly at a local level, also commemoration of great martyrs took on importance. Unlike the pagan and Judaic feasts, Christian holidays were not connoted by a specific quality, there being no distinction between a “sacred” day and a “profane” day, since every day is a day of the Lord. As Jerome explains, the resurrection of Christ is celebrated every day, but some days are established for meetings between Christians, so as not to let people’s faith diminish and so that there is more joy in the mutual meeting.²

However, a considerable change took place over the fourth century. In fact, the old pagan Roman calendar was based on a different conception, according to which sacred time took on a different meaning compared to profane time: think of the distinction between dies fasti, devoted to commercial activities and trials and dies nefasti, during which significant jurisdictional and political activities were not permitted.³

Based on these principles, legislation began to move in a similar direction and the Christian articulation of time very slowly became intertwined with the civil calendar, influencing it profoundly. The emperors used “religious time” to articulate “legal time.”

This happened, for example, through the establishment of some of Christian feasts as feriae publicae, thanks to the recognition of some days or periods of the year for the accomplishment or suspension of certain acts; in parallel with the abolition of pagan public sacrifices and feriae connected with pagan feasts, which became ordinary working days.⁴ Another important instrument used by the emperors was the prohibition of spectacles on Christian feasts:⁵ games and theatrical performances distracted believers from Christian services and this is confirmed by many invectives in the works of the Fathers of the Church.⁶

Through the filter of the imperial constitutions, Christian feasts (such as Sunday, Easter, Pentecost, Christmas, Epiphany)⁷ gradually came to be placed alongside civil feasts such as dies Natalis and the emperor’s assumption of the throne⁸ and became a powerful instrument for spreading the Christian message. All of this particularly follows the Edict of Thessalonica issued in 380, after which the most significant testimonies, which will be analyzed herein, are placed.⁹

It was not a complete replacing of the Roman calendar, because the “Christian time” started working alongside the “Pagan time.” The attempts of Christian emperors to make pagan festivals and holidays illegal were only partially successful: they were celebrated also in the fifth and sixth centuries. They progressively lost their original religious meaning, rather becoming a matter of popular custom and culture.¹⁰

Nevertheless, the new way of organizing social time brought with it a set of symbols, rites, ceremonies, and values,¹¹ eventually conditioning people’s daily lives.

Our attention will focus on texts that cover the dies dominicus and the Easter cycle. Hence, some constitutions will be examined through which Sunday and the days of the Easter cycle are used to influence and govern the times of trial, in particular (but not only) through the establishment of the obligation to suspend certain activities.

The statutes we will examine, chronologically to be placed after the 380, come mostly from the Theodosian Code. Later, some of them have been incorporated into the Justinian one. With reference to the two codifications, consequently, a complete, definitive picture emerges, showing that the Christian festivals have profoundly impacted the civil calendar.

It must however be pointed out that the various laws, at the time of their promulgation, were destined to different geographical areas, and were therefore measures in response to specific local needs, or that reacted to particular problems. Where possible, we will try to highlight these aspects, emphasizing the occasion in which the various constitutions were issued.

II Constantine and the “dies Solis”

However, before examining the legislation on dies dominicus and the Easter festivity, it is first necessary to look at some measures of the Constantinian era, very well-known and debated among scholars, that is, two constitutions through which contractual activities and trials were suspended on the dies Solis.

They were C. 3,12,2(3), from C. 3,12 De feriis and CTh. 2,8,1, from CTh. 2,8 De feriis : formally two distinct measures, both addressed to Elpidius vicarius urbis Romae, the former issued on March 3, 321 and the latter on July 3 of the same year, but which some scholars consider to be two fragments of a single law.¹² Anyway, the constitutions were initially applied only in the West, and after the victory over Licinius they were extended also to the Eastern provinces.¹³

C. 3,12,2(3). Imp. Constantinus A. Helpidio. Omnes iudices urbanaeque plebes et artium officia cunctarum venerabili die solis quiescant. ruri tamen positi agrorum culturae libere licenterque inserviant, quoniam frequenter evenit, ut non alio aptius die frumenta sulcis aut vineae scrobibus commendentur, ne occasione momenti pereat commoditas caelesti provisione concessa. PP. V. non. Mart. Crispo II et Constantino II conss. (a 321).¹⁴

CTh. 2,8,1. Imp. Constantinus A. Helpidio. Sicut indignissimum videbatur, diem solis, venerationis sui celebrem, altercantibus iurgiis et noxiis partium contentionibus occupari, ita gratum ac iocundum est, eo die, quae sunt maxime votiva, compleri. Atque ideo emancipandi et manumittendi die festo cuncti licentiam habeant, et super his rebus actus non prohibeantur. PP. V. non. Iul. Caralis, Crispo ii. et Constantino ii. Caess. Conss.

(a 321).¹⁵

Constantine intervened with C. 3,12,2 establishing that on the dies Solis the activities of all judges and inhabitants of the cities must have rest and that only inhabitants of the countryside could work in the fields. With CTh. 2,8,1 the emperor underlined that litigation must stop, in place of which suitable space should be left for the activities he referred to as votiva compleri. The only acts that could be accomplished were emancipations and manumissions, due to their non contentious nature.¹⁶

In relation to the time relationship between the two texts, the opinion of Gothofredus appears worthy of consideration, according to which CTh. 2,8,1, where the emperor talks about the past (sicut indignissimum videbatur), follows C. 3,12,2 from a chronological viewpoint: hence Constantine first established the prohibition of all judicial activities and, for the inhabitants of the cities, the suspension of all activities. The rule was different for the inhabitants of the countryside, who could continue their agricultural work.¹⁷ At a later date, through the measure referred to in CTh. 2,8,1, the emperor is considered to have extended the range of permitted exceptions, stating that emancipations and manumissions could also be performed on Sundays.¹⁸

The texts mentioned, as has been seen, contain a reference to the dies Solis, an expression connoted by a certain amount of ambiguity, since it can be attributed both to the pagan solar cult and to Christian thought, which indicates Sunday as the day of the Lord.¹⁹

As we know, scholars have always been divided on the question and diverging interpretations of these texts have also been provided in recent times.

To briefly summarize the discussion, it is first necessary to remember that some of the words used by Constantine, that is, venerabilis dies Solis and dies Solis veneratione sui celeber, and the absence of motivations that openly refer to Christian thought, point towards the preeminent will of the emperor to reconnect with the cult of the sun, to which Constantine and the members of his family were dedicated prior to the conversion to Christianity.²⁰ Therefore, Constantine’s choice of terminology would make it possible to relink his provisions to the cult of the sun²¹ while not being able to fully deny the fact that this choice would give life to a sort of compromise between the Christian and the pagan worlds, thus allowing a not too clear position to be taken, during years which were undoubtedly still a time of transition. Hence, Christians benefited, although indirectly, from Constantine’s provisions.²²

On the other hand, for an opposite interpretation (already identifiable for example in the comment that J. Gothofredus dedicates to CTh. 2,8,1)²³ Constantine intended to impose respect for the Christian feast of Sunday, dies dominicus, by still calling it dies Solis.²⁴ According to this different stance, the constitutions with which we are dealing are connected with the Christian cult²⁵ on the basis of different signs.

In particular, it should be considered that in the legislation of the Christian emperors of the fourth century who, through different measures, attempted to overcome the paganism that still covered civil society (we will look at some examples below), the expression dies Solis is used to indicate Sunday without any pagan connotation. This implies that it may also be used in this sense in Constantine’s texts,²⁶ and not in relation to the cult of the sun. Again, it should not be forgotten that in the Christian conception Christ had been considered the Sol Iustitiae for some time, and that the cult of the sun had certainly had a strong influence on the Christian worship.²⁷

To this it must be added that Constantine pursued policies that clearly distinguished Christian feasts from Jewish ones. Think about the Council of Nicaea, during which the independence of the Christian Easter with respect to Passover was established with the identification of a common date for all the Christian communities.²⁸ Since the emperor most probably issued a measure (which we do not know) on respecting Saturday for Jews,²⁹ it is very likely that with the constitutions of C. 3,12,2 and CTh. 2,8,1, Constantine also intended to promote the Christian cult, connoting the day of dies Solis as a holiday to be considered the day of the Lord, and not as being connected with the cult of the sun.

Therefore, the two constitutions allegedly aimed to favor Christians who, free from any civil and trial-related commitments, could dedicate Sunday to rest for praying,³⁰ without the risk of any negative consequences. Through Constantine’s decrees, Sunday was therefore taken away from judicial and commercial activities, which by their very nature were forebears of hostility, exchange of money, and the risk of fraud.³¹ In fact, as pointed out, in CTh. 2,8,1 acts such as emancipations and manumissions remain outside the emperor’s provisions.

It is difficult to know which position to take within this debate and to opt for one interpretation over another.

However, an aspect that appears to be significant is that of the sure “appropriation” by Christians of Constantine’s constitutions. We refer to the operation led by some writers who see the aforementioned measures as indisputably connected with Sunday as the day of the Lord.

First of all, Eusebius of Caesarea.³² In the Vita Constantini,³³ the writer mentions various times Constantine’s legislation on the dies Solis, highlighting its connection with the Christian cult.³⁴

According to Eusebius, Constantine established that the most important day of the week, the one that “really comes first” be dedicated to prayer and belong to the Lord.³⁵ Again, the author reminds us that the emperor ordered all citizens of the empire to rest on the days of the Savior, and people were also required to respect Saturdays. The writer specifies that this probably happened to remember the actions which according to tradition were performed by the Savior.³⁶ Finally, he stated that the provincial governors were obliged to observe the day of the Lord; the emperor also required them to honor the festivities of the martyrs and to celebrate the feasts of the Church: all this according to Constantine’s wishes.³⁷

The words of the bishop of Caesarea describe Constantine’s interventions as being undoubtedly connected to the Christian cult, focused on respecting Sunday as the day devoted to prayer.³⁸ In the perspective adopted by Eusebius the strong link between Constantine and Christianity emerges, without any doubt; it is also significant that in Eusebius, Vita Constantini, IV,XVIII,2 a “parallel” intervention is remembered in relation to respecting Saturday, most likely addressed to Jews.³⁹

Scholars who sustain the connection of C. 3,12,2 and CTh. 2,8,1 with the cult of the sun do not consider the words of Eusebius to be reliable, believing that he must have been motivated by apologetic reasons.⁴⁰

Eusebius of Caesarea was not alone in underlining the connection between Constantinian legislation and the Christian cult. The testimony of Sozomen of Gaza also suggests the same, stating that Constantine established the obligation to observe the day of the Lord.⁴¹ He underlines that the function of Constantinian legislation⁴² is to respect Sunday as a day devoted to the Lord, through the prohibition to perform judicial and contractual acts: Sunday must instead be used for prayer, therefore believers are exonerated from any activities that could hinder the spirituality of the day in any way.

Sozomen also offered an opening on the reason why Constantine dictated such rules, suggesting that Sunday was the day on which Christ rose again, hence beating death.⁴³ It was therefore a “Paschal” day of the week and, as such, was to be celebrated.⁴⁴

In short, these testimonies show that beyond what should have been the original meaning of Constantine’s measures, C. 3,12,3 and CTh. 2,8,1 (or similar measures) were immediately linked to Christianity and therefore perceived as a way of enhancing Christian worship.⁴⁵

Returning now to the contents of the two Constantinian laws, they establish abstention from all judicial and contractual activities, with the exception of emancipations and manumissions. Again, as has been seen in C. 3,12,2 the emperor asked for the work of the inhabitants of the cities to stop, while those living in the countryside could continue their activities if necessary.⁴⁶

There has been some discussion as to the meaning of this exception. According to scholars who consider the law to be connected to the Christian cult, it was a prudent stance by the emperor, who did not want to impose a law inspired by Christianity on the inhabitants of the countryside who were connected to paganism.⁴⁷

As for judicial activities, specifically of interest to us, the words of the emperor point towards the suspension on Sundays of all proceedings. This is the starting point to be considered for looking now, in greater depth, at the problem connected with the relationship between Christian feasts and administration of justice.

III Christian Sunday from Valentinian II to Leo

The suspension of judicial and contractual activities on Sunday is found in 386, in a western constitution by Valentinian II. For those who already see a link to Christianity in the Constantinian constitutions, this text surpasses all related ambiguities, presenting a definitively Christian connotation of the dies Solis and contributing to the idea that Sunday is the day of the Lord.⁴⁸ On the other hand, according to those who believe Constantine was still connected to the cult of the sun, it is the first intervention envisaging the suspension of judicial and contractual activities on the Christian Sunday.⁴⁹

The constitution was issued in Aquileia by Valentinian II, probably under the deep influence of his mother, Justina.⁵⁰

It is CTh. 2,8,18, from the title De feriis, also reported by the compilers of the Codex Theodosianus in CTh. 8,8,3 and CTh. 11,7,13:⁵¹

CTh. 2,8,18. Imppp. Gratianus, Valentinianus et Theodosius AAA. ad Principium Praefectum praetorio. Solis die, quem dominicum rite dixere maiores, omnium omnino litium, negotiorum, conventionum quiescat intentio; debitum publicum privatumque nullus efflagitet; nec apud ipsos quidem arbitros vel iudiciis flagitatos vel sponte delectos ulla sit agnitio iurgiorum. et non modo notabilis, verum etiam sacrilegus iudicetur, qui a sanctae religionis instinctu rituve deflexerit. Proposita III non nov. Aquileiae, accepta viii k. dec. Romae Honorio n.p. et Evodio conss.

(a. 386).⁵²

If we accept the theory according to which Constantine had already imposed respect for the Christian Sunday, the text is undoubtedly placed in a continuous line with those provisions, more clearly defining the connection with Christian thought and outlining the conception of the feast in the Christian sense. Significantly, the expression dies Solis is specified here through the words … quem dominicum rite dixere maiores … .⁵³

Again, another common thread connects CTh. 2,8,18 with a previous law of Valentinian I, which established that on the dies Solis Christians could not be subjected to tax collection,⁵⁴ whereas in a later one, CTh. 2,8,19 issued in 389, Sunday, still known by the expression dies Solis, was listed among the feast days.⁵⁵ Here Theodosius states that “all days shall be court days” enumerating exceptions, among which dies solis and holy Paschal days, with the seven preceding and following days.⁵⁶

Coming to an in-depth analysis of the contents of the constitution, Valentinian II requires that on the dies Solis/dominicus all proceedings and contractual activities be suspended, including acts before arbitrators.

All this is confirmed further in the Interpretatio that accompanies the text (CTh. 8,8,3) in the Breviarium Alaricianum:

Int. ad CTh. 8,8,3. Die Solis, qui Dominicus merito dicitur, omnium hominum actio conquiescat, ut nec publicum nec privatum debitum requiratur, nulla iudicia neque publica neque privata fiant. Quod qui non observaverit, reus sacrilegii teneatur.⁵⁷

The interpreter grasps the extent of the prohibition ratified by the emperor, which covers all iudicia, privata or publica.

As underlined in the commentary of J. Gothofredus (on CTh. 8,8,3), the measure therefore has a very extensive scope of application.

Ratione causarum, since according to the constitution, all types of proceedings must be suspended. Ratione personarum, because no-one, on the day of the Lord, can be involved in judicial proceedings: the provision also relates to non-Christians. Ratione iudicum, given that proceedings in front of judges are stopped but also those run by arbitrators, whether such arbitrators are called upon by judges or magistrates, or spontaneously chosen by the parties.⁵⁸

On this aspect, the connection has been noted with what was already provided for in the late classic period in a passage by the jurist Ulpian, who talked about the inefficacy of the sententia arbitris issued on feast days.⁵⁹

Again, it is to be pointed out that in 469 the emperors Leo and Anthemius, with a constitution that we know through the Codex Iustinianus, C. 3,12,9 (11), and about which we will talk shortly,⁶⁰ underlining the prohibition of judicial activities on Sundays, allowed litigants to conclude agreements and transactions which, again according to J. Gothofredus, could be favored by recourse to arbitrators.⁶¹

An aspect that appears particularly significant to us comes from the grave consequences envisaged in the event of violating the rules dictated in the constitution. Anyone who did not respect these rules, infringing the Sunday rest (qui a sanctae religionis instinctu rituve deflexerit) was to be considered not only infamous (notabilis) but also sacrilegious (sacrilegus).

Hence, in the case in question, crimen sacrilegii is applicable, as on the other hand also clarified by the Interpretatio:⁶² this is an important reinforcement of the discipline.⁶³ The emperors used Sunday as a day for suspending judicial proceedings and contractual activities for a decisive thrust towards the spread of the Christian religion and to do so the instrument of criminal sanctions was also necessary.

As mentioned above, there is another important text, by the emperors Leo and Anthemius, C. 3,12,9(11), focusing on respect for Sundays, as well as other Christian feasts, which returns, among other issues, to the suspension of judicial activities.⁶⁴

The constitution, which dates back to 469, was placed by Justinian’s compilers in C. 3,12 De feriis, a title which shows the by then established link between the Christian festivities and the civil calendar:⁶⁵

C. 3,12,9(11). Impp. Leo et Anthemius AA. Armasio pp. Dies festos, dies maiestati altissimae dedicatos nullis volumus voluptatibus occupari nec ullis exactionum vexationibus profanari. 1. Dominicum itaque diem semper honorabilem ita decernimus venerandum, ut a cunctis exsecutionibus excusetur, nulla quemquam urgueat admonitio, nulla fideiussionis flagitetur exactio, taceat apparitio, advocatio delitescat, sit idem dies a cognitionibus alienus, praeconis horrida vox silescat, respirent a controversiis litigantes, habeant foederis intervallum, ad se veniant adversarii non timentes, subeat animos vicaria paenitudo, pacta conferant, transactiones loquantur. 2. Nec tamen haec religiosi diei otia relaxantes obscaenis quemquam patimur voluptatibus detineri. nihil eodem die sibi vindicet scaena theatralis aut circense certamen aut ferarum lacrimosa spectacula: etiam si in nostrum ortum aut natalem celebranda sollemnitas inciderit, differatur. 3. Amissionem militiae, proscriptionem patrimonii sustinebit, si quis umquam hoc die festo spectaculis interesse vel cuiuscumque iudicis apparitor praetextu negotii publici seu privati haec quae hac lege statuta sunt crediderit temeranda. D. v id. Dec. Constantinopoli Zenone et Marciano conss.

(a. 469).⁶⁶

With the constitution in question, provision is therefore made for all the Christian feasts. It is very significant that the names of each feast are not listed: reference is hence only made to “festal days, the days dedicated to the Highest Majesty.” This is probably a sign of the then established awareness of the people of the meaning of Christian feasts and the religious duties resulting therefrom.⁶⁷

Respect for such feasts implies abstention from civil activities and from amusements, voluptates. With particular regard to the dies dominicus, Leo and Anthemius provide for it being dedicated to rest and prayer, therefore a series of activities, meticulously listed in the constitution, were to be suspended: exactions, admonitio, which was an introductory act of trials, advocatio, that is, the activities of lawyers; and all trials (cognitiones) were suspended⁶⁸.

With reference to vivid images that communicate the harshness of the procedural activities, the emperor provided for the horrida vox of the town crier (praeco) to be quiet and for litigants to take a break from the disputes in which they were involved (respirent a controversiis litigantes), so that a truce could be created between them.

The only activity still possible was that leading to the conclusion of agreements and transactions, clearly perceived as being compatible with the festivity considering their nature as instruments for pacification.

It was mentioned above that in CTh. 2,8,18 the prohibition of judicial activities on the dies Solis also related to arbitrators, both appointed by a judge and by the litigants themselves and that passage of the constitution is also referred to in the Justinian code, in C. 3,12,6.

J. Gothofredus noted a different stance in CTh. 2,8,18 with respect to Leo’s subsequent law.⁶⁹ Can a contrast between the two provisions be effectively recognized? We do not think so: while the constitution of 386 intended to stop the judicial activities of arbitrators, Leo and Anthemius probably referred to out-of-court activities for concluding agreements and transactions.

Alongside these prescriptions, it was also prohibited to hold spectacles. Within the context of a path already marked out previously, the emperors provided that on religious days, to be dedicated to prayer and contemplation, no theatrical performances or circus events or spectacles involving beasts could be held, not even to celebrate the birthday or accession to the throne of the emperor.

The spectacles are here specified with the word voluptates, amusements, as in previous laws collected in the Theodosian Code. Describing ludi as voluptates, the Christian emperors tried to disassociate the spectacles themselves from the pagan holidays to which they were originally connected, indicating them as cultural events, without a religious meaning.⁷⁰

In the final part of the constitution, some sanctions were provided for against anyone violating the various prohibitions. Amissio militiae and proscriptio patrimonii are mentioned, that is, loss of public office and confiscation of assets, to be applied both to anyone taking part in spectacles on days dedicated to festivities, and to the clerk of any judge marring them with the excuse of public or private proceedings. With reference to the suspension of civil activities and proceedings, we have seen that negative consequences had already been envisaged, as the application of crimen sacrilegii.⁷¹

This constitution from certain viewpoints seems to conclude the iter undertaken by other emperors, perhaps by Constantine himself, an iter that aimed to push people to respect Christian feasts and, in particular, Sundays. It has been said that the emperor showed his desire to give a moral and religious imprint to judicial activities, not only by considering the dies dominicus as a solemn feast day, but also as a day of conciliation and penance. Hence there is undoubtedly an idea of the establishment of justice being profoundly influenced by what was by then the State religion.⁷²

It should be pointed out, again, that the reiterated need for emperors to intervene to promote respect for Sundays probably indicates the great difficulty in ensuring compliance with such provisions.

IV Sunday, Precautionary Custody and Bishops in a Constitution by Honorius

Sunday as a feast day is also taken into consideration in an important imperial constitution by Honorius, issued in Ravenna (409 AD). The text comes from the Theodosian title De custodia reorum, dedicated to precautionary custody in prison, applied both in civil and criminal suits.⁷³ Again here, the Christian feast is used by the emperor, in some way, as an instrument for controlling and managing some stages of the procedure, and as a mechanism for spreading Christian thought. The text is:

CTh. 9,3,7. Impp. Honorius et Theodosius AA. Caeciliano praefecto praetorio. Post alia: iudices omnibus dominicis diebus productos reos e custodia carcerali videant et interrogent, ne his humanitas clausis per corruptos carcerum custodes negetur. Victualem substantiam non habentibus faciant ministrari, libellis duobus aut tribus diurnis vel quot existimaverint, commentarienses decretis, quorum sumptibus proficiant alimoniae pauperum. Quos ad lavacrum sub fida custodia duci oportet, multa iudicibus viginti librarum auri et officiis eorum eiusdem ponderis constituta, ordinibus quoque trium librarum auri multa proposita, si saluberrime statuta contempserint. Nec deerit antistitum christianae religionis cura laudabilis, quae ad observationem constituti iudicis hanc ingerat monitionem. Dat. VIII. kal. febr. Ravennae, Honorio VIII. et Theodosius III. aa. conss.

(a. 409).⁷⁴

With this constitution, Honorius imposes some positive changes to the conditions of prisoners through the application of the observance of the dies dominicus.

In fact, the emperor orders that on Sundays judges must investigate the condition of prisoners, by meeting them and obtaining information from them. In particular, they were to check that the detainees were not subject to any treatments against humanitas and ensure that the commentarienses, appointed to manage the prisons and the custody of the detainees,⁷⁵ saw to providing sustenance for them and that the prisoners were taken to the baths under custodia.

If the judges or their officia did not enforce these provisions, they would be fined twenty pounds of gold (while the high-ranking members of the office staff three pounds of gold). Again, the emperor established that the bishops were to be involved, guaranteeing assistance and religious comfort for the detainees, also dealing with controlling the officials.⁷⁶

The constitution marks an important step forwards in the discipline relating to precautionary imprisonment, a sector already affected by different imperial interventions (particularly, by constitutions that aimed to make the situation of the detainees less harsh, or to accelerate proceedings to make imprisonment as short as possible).⁷⁷

The interesting aspect here for us lies in the close connection between the innovations introduced by Honorius and the festivity of Sunday. According to some scholars, the dies dominicus is used by the emperor for spreading the Christian message further, a message which must find practical application in an environment of pain and suffering as prison is, even though it has also been highlighted that Honorius had an “affected” attitude, which was not actually guided by a profound sense of justice.⁷⁸

The final part of CTh. 9,3,7 is also significant, which provides for the involvement of bishops in the assistance to prisoners,⁷⁹ an involvement which on one hand can be seen as a sign of Christian charity and on the other could be interpreted as the necessary integration of a state organization that was inefficient in itself.⁸⁰

From this point of view, it has to be stressed that Honorius himself issued other constitutions involving bishops in various frameworks of civil life; this could be seen as a sign of the decadence of the public system of the Western empire at that time.⁸¹

From this point of view, it may be interesting to remember that in the sixth century, within the Concilium Aurelianense V dated 549, rules are established that are very similar to those that can be read in Honorius’ constitution. In fact, intuitu miserationis, it is provided that anyone in prison must be visited by the archdeacon or by the manager of the church; in compliance with the divine precepts, with mercy, they should be assisted in their needs. Again, the bishop was to appoint a diligent and faithful person, who saw to finding the essential items for prisoners; the bishop himself was responsible for providing the necessary supplies, to be taken from the episcopal residence.⁸² It seems worthy of attention that in conciliar sources, rules of this type are testified for the sixth century. From this point of view, on the other hand, the emperors appear in the front line, anticipating models that were to be imposed subsequently in the conciliar canons⁸³.

V Paschal Period and Criminal Trials: Two Constitutions by Theodosius I

Among the imperial interventions relating to Christian feasts subsequent to the Edict of Thessalonica significant for judicial activities in general, various constitutions placed between 380 and 408 are reported. With these measures, through similar mechanisms to that seen in relation to the Sunday feast, the emperors govern the Paschal period in a “special” way.

On this point it is useful to remember, as already mentioned in the second paragraph, that the Christian Easter was originally celebrated in relation to the Jewish one, and that Constantine was the first emperor to treat this festivity ex professo. During the Council of Nicaea in 325 a single date was determined for all the Christian communities, to be celebrated on a Sunday.⁸⁴

Over the course of the fourth century, the Christian Easter and the pre-Paschal period developed greatly from a liturgical and organizational point of view, also thanks to the legislative interventions of the Christian emperors.⁸⁵ Think, just by way of example, about the important laws on Paschal indulgentia, obviously inspired by the dimension of forgiveness which cannot be dealt with here.⁸⁶

We will approach these constitutions in chronological order, examining interventions relating to torture and criminal proceedings.⁸⁷

The first constitution, CTh. 9,35,4, was issued by Theodosius just a month after the Edict of 380, when the emperor was still in Thessalonica, and it was accepted in CTh. 9,35 De quaestionibus. It was also included in Codex Iustinianus, under the title C. 3,12 De feriis (C. 3,12,5):

CTh. 9,35,4. Imppp. Gratianus Valentinianus et Theodosius AAA. Albuciano vicario Macedoniae. Quadraginta diebus, qui auspicio cerimoniarum paschale tempus anticipant, omnis cognitio inhibeatur criminalium quaestionum. Dat. VI. Kal. April. Thessalonicae, Gratiano A. V. et Theodosio A. I conss.

(a. 380).⁸⁸

The constitution establishes the important and noteworthy rule according to which all criminal proceedings were suspended during Lent.⁸⁹

The text is not clear as the expression cognitio criminalium quaestionum is used here. The word quaestio, as we know, usually refers to torture, to the application of tormenta, which in the Roman criminal trial was used both in relation to defendants and to witnesses. In fact, the title 9,35 of Codex Theodosianus, De quaestionibus contains constitutions dedicated to various profiles connected with the discipline of such inquiry measure.⁹⁰ However, in Theodosius’s provision, it appears to be used with a more general meaning, that is, related to all criminal proceedings.⁹¹ For confirmation of this see, for example, Interpretatio of the constitution within the Breviarium Alaricianum:

Int. ad CTh. 9,35,4. Diebus quadrigesimae, pro reverentia religionis, omnis criminaliter actio conquiescat.⁹²

The interpretation clarifies the idea that the constitution is directed towards the general suspension of criminal proceedings (it says omnis criminaliter actio conquiescat). Further, with respect to Theodosius’s text, the ratio of the imperial intervention is also explained: pro reverentia religionis, in reverence for religion.

Therefore, the constitution aims to introduce a cause for the suspension of all activities relating to criminal proceedings, including the application of torture, during the period of Lent before Easter. Clearly, all this is related to the idea of forgiveness and rebirth connoting the Paschal period, which Theodosius decides to use as a way of governing and influencing the time scales of the criminal trial, providing for the suspension thereof.

As has been highlighted, the suspension of the criminal proceedings and torture during the period of Lent is established intuitu temporis, that is, considering the peculiarities and sacredness of the moment in time. Up to now, exemptions from the application of tormenta were envisaged, for example, intuitu personae, with regard to the status taken on by the party who was to be subjected to torture, and never in relation to the time in which the use of this measure of inquiry was used.⁹³

The expression of “forty days” reflects the duration of Lent in the Illyricum and in Greece: it was a law issued concerning the Macedonian provinces.⁹⁴ By scholars who believe that through CTh. 2,8,1 and C. 3,12,2 Constantine continued to move in a pagan context, the innovative importance of Theodosius’s constitution is underlined. It appears to be the first measure by a Christian emperor to envisage the interference between the liturgical festivities and the civil (judicial) calendar. It also appears to be the first testimony of the adaptation of the time scales of the judicial administration to the reality of Christianity.⁹⁵

Some years later, the emperor Theodosius returned to the subject through a new constitution, in 389. The constitution is addressed to the praetorian prefect of the East,⁹⁶ while the previous one was applied in the Illyricum.⁹⁷ Therefore, we read CTh. 9,35,5:

CTh. 9,35,5. Imppp. Valentinianus Theodosius et Arcadius AAA. Tatiano P.P. Sacratis quadragesimae diebus nulla supplicia sint corporis, quibus absolutio expectatur animarum. Dat. VIII. Id. Septemb. Foro Flaminii, Timasio et Promoto conss.

(a. 389).⁹⁸

A very similar precept is established here to the one found in the previous measure, although more restricted; whereas CTh 9,35,4 provided for the suspension of all criminal proceedings, here the emperor’s attention concentrates only on the supplicia corporis, hence exclusively on the application of torture, which is suspended during Lent. It therefore follows that on the basis of this law, in the East, there was no limitation of the criminal trial as a whole, rather only in relation to the use of tormenta against rei and witnesses.

From the comment dedicated by Gothofredus to the constitution clues also emerge that allow some hypotheses to be put forward on the events that led to its promulgation, although only in brief. In fact, Gothofredus also points out that in literary sources, particularly in the work of John Chrysostom,⁹⁹ a revolt is remembered that took place in Antiochia, in relation to which the criminal trial was held during Lent that year. The revolt, caused by the imposition of new taxes, led to the destruction of some statues of the emperor.

It appears that during the trial the judges made use of torture against witnesses in such a cruel way as to push the bishop Flavianus to appeal to the emperor to ask for his intervention, which would actually have led to the issue of the law of CTh. 9,35,5.¹⁰⁰

The law, which refers in part to the contents of the previous one¹⁰¹, prohibits the use of supplicia during Lent with a very clear reason: it is a time reserved for absolutio animarum. During this period, bodies had to be left in peace: “Non sunt seculari iudicio corpora supplicio afficienda, quando a caelesti iudicio absolutio animarum expetitur.”¹⁰²

Lent is thus dedicated to penitence, reconciliation, conversion and admission of guilt: the constitution therefore reflects the evolution which over the course of the fourth century the conception of the Paschal period underwent.

The reciprocal forgiveness has become a fundamental aspect of this moment, and the Lenten preaching insisted a lot on the idea of Christian mercy. The idea under the law by Theodosius was probably the same inspiring legislation on amnesty: the celebration of Easter leads to the necessity of pardon for persons tormented by judicial investigation under torture and the fear of punishment.¹⁰³

Moreover, it cannot be excluded that through this constitution Theodosius intended to involve in some way the work of the priests in the penitential ministry, ensuring that confessions were obtained without the judges having to resort to the application of tormenta.¹⁰⁴ From this point of view, it is interesting to note that, according to John Chrysostom, during the trial after the insurrection in Antiochia, the judges themselves suffered for the torture, because they were forced to be instruments of an awful tragedy:¹⁰⁵ application of torture seems to be, first of all, a problem for the torturers.

The constitutions seen now, as mentioned, originally regarded the Illyricum and the Eastern prefecture.

However, it is quite possible that even in the Western part of the Empire there was legislation that aimed to prevent the application of torture during the Paschal period or connected with certain Christian feasts.

In De obitu Valentiniani consolatio¹⁰⁶ Ambrosius reconstructs the reaction of the emperor Valentinian in relation to a query from the praetorian prefect regarding a criminal trial: the response points towards excluding all types of cruelty during the days defined as sancti:¹⁰⁷ respondit ut nihil cruentum sanctis praesertim diebus statueretur.¹⁰⁸ It is not unlikely that the reference is to a prohibition to apply the inquiry measure of torture.

VI The Case of latrones Isauri

It has therefore been seen that with reference to Lent, criminal proceedings and torture undergo an important suspension intuitu temporis, hence connected with the particular nature of the reference time. However, this does not prevent the emperors from intervening, also providing for important derogations, dictated by contingent reasons.

Still on the subject of the relationship between the Paschal period and criminal procedure, and in particular suspension of torture, there is in fact a constitution of Theodosius II that we must remember, since it introduces a significant exception to the prohibition expressed in the previous constitution. This is the text, dated 408:

CTh. 9,35,7. Impp. Honorius et Theodosius AA. ad Anthemium pp. Provinciarum iudices moneantur, ut in Isaurorum latronum quaestionibus nullum quadragesimae nec venerabilem pascharum diem existiment excipiendum, ne differatur sceleratorum proditio consiliorum, quae per latronum tormenta quaerenda est, cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. Dat. V kal. Mai. Constantinopoli Basso et Philippo conss.

(408).¹⁰⁹

The emperor admonishes the judges of the provinces who were not to suspend the application of torture against latrones Isauri during Lent and on Easter day. As we know, the Isaurians can be attributed with numerous raids and, in particular, they can be blamed for the depredation, between 404 and 408, of South and East Asia Minor, of the Diocese of the East and the island of Cyprus.¹¹⁰

It is therefore a constitution that contains emergency rules, clearly dictated to reinforce the instruments available to the iudices when it was time for them to try those responsible for such actions.

The explanation that the emperor provides on the need for such exceptional treatment is very significant: … cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. Theodosius II states that the application of torture on latrones Isauri is justified for reaching safety and welfare of many: and in view of this divine forgiveness can be easily obtained.

The words of the emperor combine requirements for justice and religious aspects perhaps even more clearly than what happens in the other constitutions examined up to now: the application of Christian time, previously also used for governing civil and legal activities (criminal trial, application of torture, etc.) finds a limit here depending on contingent requirements.

It is perhaps possible to make out a connection with what was established by Constantine in C.3,12,2: as will be remembered, by ratifying abstention from work on the dies Solis, Constantine had however allowed work in the fields, clearly for reasons of “public utility”;¹¹¹ Theodosius II, again to satisfy practical needs (in the case in question security and safety), established the possibility for the judges to resort to torture also on days considered as feasts.¹¹²

Within the context of the Codex Iustinianus derogation to the right of torture appears to be wider. In fact, by including the constitution in C. 3,12 De feriis, the compilers made a significant change to the text:

C. 3,12,8(10). Impp. Honorius et Theodosius AA. Anthemio pp. Provinciarum iudices moneantur, ut in quaestionibus latronum et maxime Isaurorum, nullum quadragesimae nec venerabilem pascharum diem existiment excipiendum, ne differatur sceleratorum proditio consiliorum, quae per latronum tormenta quaerenda est, cum facillime in hoc summi numinis speretur venia, per quod multorum salus et incolumitas procuratur. D. v. k. Mai. Constantinopoli Basso et Philippo conss.

(a. 408).¹¹³

Justinian’s version of the constitution says in quaestionibus latronum et maxime Isaurorum: this means that the judges were free to apply torture during Lent and on Easter day against all latrones, and not only against Isaurians.¹¹⁴

VII Conclusion

The collection of constitutions examined herein has enabled us to reconstruct, although briefly, how the Christian emperors used some of the Christian feasts to influence the civil calendar, with special regard to the administration of justice.

It is an operation pursued particularly following the Edict of Thessalonica of 380 but that could possibly have its roots further back in time if we accept the idea that Constantine’s constitutions on the dies Solis already had a Christian connotation, as many scholars believe.

These statutes are originally intended for different regions, issued to respond to particular, local needs. Think, for example, at CTh. 9,3,7 by Honorius. Involving the bishops on Sunday for the benefit of those in pre-trial detention in prison, the emperor dictated a measure justified by practical, contingent needs of integration of an inadequate public apparatus. Or to CTh. 9.35.5, of Theodosius I, who suspended torture during Lent probably following what happened after the revolt of Antiochia, when even the judges were horrified by the harshness of torture. Again for local needs, the same emperor re-enacts the torture during Lent, when the Isaurian thieves came into consideration.

In spite of the different motivations behind the various constitutions, it is possible to glimpse a common line gradually brought forward by the emperors: the occasion of the Christian feasts is taken for the introduction of measures soothing brutal aspects of trials and administration of justice; also the pagans could benefit from these measures.¹¹⁵

Through imperial legislation, what we can define as “Christian time” became, at least with reference to certain sectors, the “time of law.”

The Roman emperors began articulating time based on the liturgical days, and the most important Christian feasts became reference points for handling judicial activities¹¹⁶ and, more generally, for a new social organization.

Reference was made in the first paragraph to the fact that the emperors apply, in their constitutions on the times of the trial, a pattern that comes from the pagan world, where there was a distinction (unknown to Christianity) between dies fasti and dies nefasti. We remembered Jerome in the first paragraph, for whom every day, without distinction, is a feast, because the resurrection is celebrated every day.

From this point of view it is possible to state that the pagan culture, through law, had an important impact on Christianity. These imperial constitutions led to a significant outcome: exactly as happened in the Roman pagan world, the days of Christian feasts took on a particular connotation which made them different from the others. Sacred time therefore obtained a special connotation, a qualitas that it did not have before.

A quick examination of the language used by the emperors in the different measures clarifies this point. Think, for example, about one of the constitutions dedicated to Sunday (CTh. 2,8, 18) where the emperor states that who does not respect the Sunday is a sacrilegus, because he turns aside from the inspiration and ritual of holy religion. Again, in Leo’s constitution, Christian feast days are defined as dies festi and are connoted as special, since they are days dedicated to the Highest Majesty. In the measures on the suspension of torture during Lent, Theodosius I states that this period has a singular quality, being reserved for absolution of souls.

At the same time, the opposite assumption is also true: through imperial legislation, Christianity, with its liturgical feasts, has a strong impact on the Roman world.¹¹⁷ Contractual and legal activity, precautionary imprisonment, the criminal trial, and torture are governed also considering the liturgical requirements of Christians.

This means that the importance of the feasts leaves the “private circle” of Christian communities and meets with the “public circle,” contributing to regulating times and social organization, with deep consequences (in a much wider perspective) on the Western world.¹¹⁸

A significant example of “law as religion” and “religion as law.”