Digest XLVIII.8.11 (Modestinus, Legal Rules VI)

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Antoninus Pius’s ban on circumcision for non-Jews
Name of the author: 
compilers of the Digest; Modestinus
530 CE to 533 CE
Literary genre: 
Legal text
Title of work: 

The text presented here corresponds to a quotation made in Justinian’s Digest of a passage extracted from Book VI of Modestinus’s Legal Rules (Regulae). Herennius Modestinus was born around 185 CE in Asia Minor, and was active during the first half of the third century CE. He was a student of Ulpian and counted among the most famous jurists of the time. Around 228 CE he had been praefectus vigilum (chief of police in Rome). According to the Historia Augusta, he was appointed by Maximinus Thrax to teach the latter’s son, but this fact remains doubtful (Historia Augusta, Vita Maximi XXVII.5). We also know thanks to a passage of the Codex Iustinianus dated from 239 CE, that he was well-known and influent under Gordianus III’s reign (CJ III.42.5) (see PIR2 H 112). It is generally admitted the composition of the ten books of Regulae occurred after Caracalla’s edict, even after 217 CE (see Liebs, “Herennius Modestinus,” p. 197-198). Modestinus is one of the jurists whose work was extensively selected by the jurists in charge of the redaction of the 50 books of Justinian’s Digest, between the 15th December 530 CE (the moment when they had been appointed to this task) and the 30th December 533 CE (that is when the Digest went into effect). The Digest was a collection of selections of the works written by 38 classical jurists. This implies that the jurists of the Digest selected, shortened, rephrased or even sometimes modified the original content of the jurisprudential works to create a new and coherent collection of jurisprudence (on the interpolations in the Digest, see recently Kaiser, “Justinian and the Corpus Iuris Civilis,” p. 128-130). Finally, it is important to recall that the jurists of the Digest inserted the text presented here in Book 48 (the book dealing with public criminal law), more precisely under the title lex Cornelia on murderers and poisoners (for a general presentation of the Digest, see Kaiser, “Justinian and the Corpus Iuris Civilis,” p. 124-125, 127-130; about this passage, see Linder, Imperial Legislation, p. 99-102). The text presented here is particularly interesting because it is one of the few legal sources giving information about the evolution of the Roman legislation related to circumcision. However we have to be cautious in its interpretation as we only know it through two rewordings. The first one is that of Modestinus as he refers to the rescript of Antoninus Pius (138-161 CE) in which the later allowed Jews to circumcise their sons but prohibited people who did not belong to the Jewish religion or ethnos to circumcise themselves or to circumcise other persons. The second is that of the Digest’s compilers who have selected Modestinus’s text.
The reference to this rescript has raised many questions, especially how we can understand it in the framework of Roman legislation regarding castration and circumcision, and who was really targeted by it.

The first question we can ask ourselves is how to understand this reference to Antoninus Pius’s rescript in the framework of the previous Roman legislation related to circumcision. That Hadrian would have promulgated a general ban on circumcision has been and is still considered a valid hypothesis by a majority of scholars (in favour of the thesis of the Hadrianic general ban on circumcision, see for example Smallwood, “The Legislation of Hadrian”; for a bibliographical survey, see Abusch, “Negotiating Difference,” p. 72, n. 2). This communis opinio is usually justified through three arguments and in particular thanks to the passage of the Life of Hadrian in the Historia Augusta, that mentions: “At this time also, the Jews started a war because they were forbidden to mutilate their genitalia” (Moverunt ea tempestate et Iudaei bellum, quod vetabantur mutilare genitalia; for the other arguments see Historia Augusta, Life of Hadrian XIV.2). However, for some scholars, the problematic nature of the source itself and the polemical phrase mutilare genitalia lead to not consider this testimony as reliable to prove the existence of the Hadrianic ban (see Abusch, “Negotiating Difference,” p. 79-80; Oppenheimer, “The Ban on Circumcision,” p. 243-244). These scholars have also brought various elements to counter the other arguments justifying the existence of an Hadrianic ban on circumcision in the whole Empire (about this debate, see Historia Augusta, Life of Hadrian XIV.2). Thus, the position that one adopts concerning the existence or not of this Hadrianic ban clearly influences the interpretation of the text presented here. For those who believe in the Hadrianic ban, they interpret the rescript of Antoninus Pius as being a concession made to the Jews of the Empire who would have protested against the Hadrianic ban (on this question see Historia Augusta, Life of Hadrian XIV.2). Antonius Pius would have answered positively to their request but he would have limited the scope of their privilege: he authorized only the circumcision of Jews’s sons (in that perspective Martin and Nemo-Pekelman, “Les Juifs et la cité,” p. 229-230). In a different perspective, for the scholars who question the existence of the Hadrianic general ban on circumcision, Antoninus Pius would have been the first who would have promulgated a rescript that specified the conditions under which Jewish circumcision could be carried out and he did so “as part of a general trend within imperial legislative policy to address the maltreatment of slaves” (Abusch, “Negotiating Difference,” p. 73).

Leaving aside this debate about the evolution of the Roman legislation related to circumcision, another particularly interesting element provided by this reference to Antoninus Pius’s rescript is of course that of the identity of the persons who were concerned by the authorisation and the banning to circumcise. The first point which can be debated is how to translate the expression Iudaeis filios suos tantum. It is now commonly assumed that the tantum applied to filios and not to Iudaeis meaning that it was stated that Jews were allowed to circumcised their sons only (on this question see Schäfer, Der Bar Kokhba-Aufstand, p. 40-43). The second part of the sentence clarifies even more the first one as it is stated that whoever performed circumcision on someone who was not of the Jewish religio should be punished as a castrator. Thus, for the scholars who did not believe in the existence of a precedent Hadrianic prohibition of circumcision, this rescript of Antoninus Pius would have imposed a restriction on “a previously unlimited and unlegislated freedom” (Abusch, “Negotiating Difference,” p. 86). In addition, the fact that the second component of Antoninus Pius’s rescript contains a reference to the castrantis poena shows that the Roman legislation regulating castration was used as some kind of legal precedent helping to regulate the practice of circumcision. Thus, through his rescript, Antoninus Pius might have proposed, for the first time, a legal definition of circumcision which was thus a sub-category of the Roman legislation regulating castration.
Another crucial element of the text is to understand the relationship between this preamble enunciating the existence of Antoninus Pius’s rescript and the two other paragraphs of Modestinus’s work also retained by the compilers of the Digest. The particularity of these two paragraphs is that they deal with the rights of masters over their slaves. In that perspective, Siro Solazzi has proposed to emend the text, which thus becomes in <servis> non eiusdem religionis qui hoc fecerit; “if anybody shall commit it on slaves who are not of that very religion” (Solazzi, “Fra norme,” p. 396-404). For this scholar, the original version of Modestinus’s reference to the scope of Antoninus Pius’s rescript may have more clearly targeted slaves. He explains the difference between the original text of Modestinus and the version of the Digest either by a cut made by the compilers of the Digest or by an alteration which was already present in the version of Modestinus’s Regulae used by the compilers of the Digest. According to Siro Solazzi’s reasoning, Modestinus’s text would have recalled the rule according to which Jewish masters were prohibited to circumcise their non-Jewish slaves. A quite similar ruling appears in Paul, Sententiae V.22.4, when it is recalled more explicitly: “If Jews shall circumcise purchased slaves of another nation, they shall be banished or suffer capital punishment” (Iudaei si alienae nationis comparatos servos circumciderint, aut deportantur aut capite puniuntur).
Admitting or not the validity of Solazzi’s emendation, the fact that in the first half of the third century CE Modestinus made a reference to this rescript in this part of his compilation shows that, at least at that time, Antoninus Pius’s rescript was understood as a legal statement whose main aim was to protect slaves against the excessive brutality of their masters. As rightly recalled by Ra‛anan Abusch, in Justinian’s Institutes, there are various laws promulgated by Pius whose aim was to fight against the excessive brutality of some masters against their slaves, which was perceived as an abusive use of private property causing social troubles (causing for instance the flights of many slaves to sacred temples or statues of the emperor; see Institutes I.8.1; Abusch, “Negotiating Difference,” p. 87-88). So Antoninus Pius was sensible of the question of the mistreatment of slaves and the fact that, in this text, the illegal practice of circumcision is sanctioned in the same way as castration, shows that Antoninus Pius may have used the older legislation regarding castration as the legal precedent helping to regulate the practice of circumcision. Thus, for scholars who have rejected the idea that there would have existed a general ban of circumcision under Hadrian, this rescript of Antoninus Pius should rather be interpreted as a legal clarification brought in order to officially recognise the right of the Jews to practice circumcision but to present any circumcision carried out outside this framework as a sub-category of castration that should be punished in the same way. For them, the rescript of Antoninus Pius should not be interpreted in the continuity of the Hadrianic ban on circumcision, but in the continuity of the imperial legislation regulating castration (Abusch, “Negotiating Difference,” p. 87). Ra‛anan Abusch thus imagines two situations in which Antonius Pius may have written this rescript. He may have responded to a previous solicitation which could have been that of a Jewish master who wanted to circumcise his non-Jewish slave (and who may have known that the emperor had previously enacted many laws to prevent brutality against slaves), or which could have been that of a non-Jewish slave who would have sought the protection of the emperor (see Abusch, “Negotiating Difference,” p. 88).

The last important point that has to be stressed is that in the Digest’s version of Antoninus Pius’s rescript the practice of circumcision is clearly associated with a distinct Jewish identity. This Jewish identity is defined by the transmission from father to son and by the membership in a distinct religio. The fact that Antoninus Pius may have limited the practice of circumcision to the framework of the Jewish family and to the members of the Jewish religio, raises the question of whether the Roman citizens who converted to Judaism were concerned or not by this law. Before going into the heart of the problem, it is important to recall that circumcision is one of the customs that enabled to mark the distinction between Judaizers – that is to non-Jews who appropriated certain Jewish rituals, customs or beliefs – and converts (on this point see Josephus, Jewish War II.454; Josephus, Jewish Antiquities XX.34-48; Juvenal, Satires XIV.96-106; Berthelot, “To convert”). The main problem we are confronted with to answer this question is that we do not know the original words used by Antoninus Pius. In spite of this major unknown element, Aharon Oppenheimer has concluded about this rescript that “it is clear that circumcision was forbidden to converts” (Oppenheimer, “The Ban on Circumcision,” p. 244). However, we would like to suggest that more caution is required concerning this point. Actually, in Modestinus’s rephrasing of the content of Antoninus Pius’s rescript, there is no reference to the fact that circumcision was prohibited for Roman citizens, as it is the case in Pseudo-Paul, Sentences V.22.3-4. The right to practice circumcision is determined by one’s membership in the Jewish religio, a condition that Roman citizens who converted to Judaism could claim. Nevertheless, we object the fact that, for the Roman legislator, the Jewish religio was intrinsically connected to the Jewish ethnos. For instance, in the first sentence of the text presented here, there is a clear equation between the religious practice of circumcision and the fact that it is authorised only for Jews by birth. The second objection we could formulate is that this rescript was enacted largely before the Constitutio Antoniniana, the reference to the fact that Iudaei could circumcise their sons may have implied that they – or most of them – were not Roman citizens. However, as we do not have the original version of Antoninus Pius’s rescript we cannot go further on this question.

To conclude, the interpretation of this passage of the Digest reproducing an excerpt from the sixth book of Modestinus’s Regulae, itself referring to a rescript of Antoninus Pius, remains difficult for two reasons. First, the system of the successive quotations must have led to simplifications and perhaps also to modifications of the original content and aim of the legal sources. Second, we have seen that the assessment of this rescript of Antoninus has been interpreted variably according to the way one accepts or not the existence of a Hadrianic ban on circumcision which is not explicitly attested by any source – leaving aside the doubtful testimony of the Historia Augusta. The rescript of Antoninus Pius could thus be considered as the first Roman legal source proposing a legal definition of circumcision.
The two other paragraphs going along with the preamble quoting the rescript related to circumcision imply that Modestinus may have selected this law because he may have interpreted it as an important measure to regulate excessive brutality towards slaves – in this case it was the prohibition of circumcision of non-Jewish slaves by Jewish masters which was regulated. The fact that Antoninus Pius seems to have been sensitive to the regulation of unlawful violence towards slaves during his reign could explain why he produced this rescript. In this perspective, this prohibition of the practice of circumcision for non-Jews and the fact that this right was officially recognised to Jews had less to do with the evolution of the rights granted or removed by the imperial power to the Jews than with the evolution of the Roman legislation regarding the castration of slaves. Finally, we have seen that one case remains unclear. This case is that of the Roman citizens who converted to Judaism and who, from a Jewish point of view, were considered as members of the Jewish religio. The question of whether these converts were also concerned by the rescript of Antoninus Pius remains difficult to answer. All that we can say is that the author of the law restated in Sentences V.22.3-4 deals with the same subject and that he clearly envisages the question through the perspective of the civic status of the persons concerned by the right or the ban on circumcision. This difference can be explained by the fact that Antoninus’s rescript might have been much more focused on the issue of slaves forced to be circumcised by their masters.

Bibliographical references: 
Liebs, Detlef, “Herennius Modestinus”, in Handbuch der Lateinischen Literatur der Antike. VIII.4. Die Literatur des Umbruchs von der Römischen zur Christlichen Literatur 117 bis 284 N. Chr (ed. Klaus Sallmann; Munich: C.H. Beck’sche Verlagsbuchhandlung, 1997), 195-201
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Digest XLVIII.8.11 (Modestinus, Legal Rules VI)
Author(s) of this publication: Marie Roux
Publishing date: Tue, 03/06/2018 - 14:29
URL: http://judaism-and-rome.cnrs.fr/digest%C2%A0xlviii811-modestinus-legal-rules%C2%A0vi
Visited: Fri, 03/23/2018 - 19:54

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