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D - Religious Conceptions of Law

David C. Flatto
Hebrew University of Jerusalem
Benjamin Porat
Hebrew University of Jerusalem


Publisher: Cambridge University Press
Print publication year: 2022

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

Steven D. Fraade Footnote *
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.Footnote 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).Footnote 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.Footnote 3 Here is Cover in his own words:Footnote 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:Footnote 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,Footnote 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.Footnote 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.”Footnote 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:Footnote 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.Footnote 10

The midrashic text that we will shortly examine asks, how can the commandments (and the Sinai/Moses mythFootnote 11 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).Footnote 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.”Footnote 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).Footnote 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.Footnote 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.Footnote 16 Here’s the verse (32:46a–b in bold), together with its surrounding verses, to give a sense of its scriptural context:Footnote 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,Footnote 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.Footnote 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,Footnote 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,Footnote 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.”Footnote 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.Footnote 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:Footnote 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)Footnote 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 gratefulFootnote 26 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 JudahFootnote 27 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.”Footnote 28 Had Moses not been great, or had he been someone else,Footnote 29 and had we received his Torah,Footnote 30 would it not have been worth [a thing]?Footnote 31 How much more so!Footnote 32 Therefore it says, “Enjoin them [upon your children to keep].”Footnote 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:Footnote 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,Footnote 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).Footnote 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.Footnote 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]!Footnote 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 observeFootnote 39 all of the Torah’s commandments, presumably in perpetuity (as would seem to be the implied meaning of verse 47).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 46 Survival of Torah depends as much on its private as public transmission through performance.Footnote 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.Footnote 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”)Footnote 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.Footnote 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,”Footnote 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.”Footnote 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.Footnote 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.”Footnote 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,”Footnote 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,Footnote 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.Footnote 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.Footnote 4 However, God does grant absolution for transgressions between man and God,Footnote 5 because they affect only Him, and a king can pardon offenses of lèse majesté.Footnote 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.Footnote 7 Her question is belligerent and polemical, beginning “it is written in your Torah.”Footnote 8 The term used to describe R. Jose’s intervention, nitpal lah – “he dealt with her”Footnote 9 – is also typical of polemic encounters.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.”Footnote 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;Footnote 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.Footnote 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.Footnote 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.Footnote 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]?”Footnote 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).Footnote 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.Footnote 22

Rabbi Akiva, unlike Jesus,Footnote 23 focuses on a single golden rule – love your fellow.Footnote 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.”Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 33 absolute prohibitions with no explanation or stated reward.Footnote 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:Footnote 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.Footnote 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.Footnote 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,Footnote 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 …Footnote 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.Footnote 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.Footnote 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.”Footnote 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).Footnote 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 opinionFootnote 44 is not comfortable with the notion of such repetition and consequently divides them between the two tablets, five on each.Footnote 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).Footnote 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.Footnote 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;Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 52 Legal taxonomy sorts and organizes the law, dividing it into families, branches, groups, etc. Three types of legal taxonomy can be differentiated:Footnote 53

    1. (1) Formal taxonomy classifies and explains law from a theoretical perspective, and has no normative or practical ambitions.Footnote 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.Footnote 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.Footnote 56 It sees disparate and even contradictory phenomena as different and complementary facets of a single harmonious entity.Footnote 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.”Footnote 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.Footnote 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.Footnote 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 …Footnote 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”).Footnote 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.Footnote 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.Footnote 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.Footnote 65 Thus the sociopolitical tensions created a paradox of legal theory and a normative tension between the “religious” and the “legal.”Footnote 66

The gulf in Roman law between “divine” law and the “law” deepens in the wake of the Christian influence on Roman law.Footnote 67 This influence is already discussed in the second half of the fourth century, in the Liber quaestionum attributed to Ambrosiaster.Footnote 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.Footnote 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.”Footnote 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.Footnote 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].”Footnote 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.Footnote 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.Footnote 74

Jesus is familiar with the traditional homily (“you have heard”) that limits the love of one’s fellow by excluding the wicked,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 4 Another important instrument used by the emperors was the prohibition of spectacles on Christian feasts:Footnote 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.Footnote 6

Through the filter of the imperial constitutions, Christian feasts (such as Sunday, Easter, Pentecost, Christmas, Epiphany)Footnote 7 gradually came to be placed alongside civil feasts such as dies Natalis and the emperor’s assumption of the throneFootnote 8 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.Footnote 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.Footnote 10

Nevertheless, the new way of organizing social time brought with it a set of symbols, rites, ceremonies, and values,Footnote 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.Footnote 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.Footnote 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).Footnote 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).Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 20 Therefore, Constantine’s choice of terminology would make it possible to relink his provisions to the cult of the sunFootnote 21 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.Footnote 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)Footnote 23 Constantine intended to impose respect for the Christian feast of Sunday, dies dominicus, by still calling it dies Solis.Footnote 24 According to this different stance, the constitutions with which we are dealing are connected with the Christian cultFootnote 25 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,Footnote 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.Footnote 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.Footnote 28 Since the emperor most probably issued a measure (which we do not know) on respecting Saturday for Jews,Footnote 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,Footnote 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.Footnote 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.Footnote 32 In the Vita Constantini,Footnote 33 the writer mentions various times Constantine’s legislation on the dies Solis, highlighting its connection with the Christian cult.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 41 He underlines that the function of Constantinian legislationFootnote 42 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.Footnote 43 It was therefore a “Paschal” day of the week and, as such, was to be celebrated.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 49

The constitution was issued in Aquileia by Valentinian II, probably under the deep influence of his mother, Justina.Footnote 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:Footnote 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).Footnote 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 … .Footnote 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,Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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:Footnote 62 this is an important reinforcement of the discipline.Footnote 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.Footnote 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:Footnote 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).Footnote 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.Footnote 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 suspendedFootnote 68.

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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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,Footnote 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.Footnote 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).Footnote 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.Footnote 78

The final part of CTh. 9,3,7 is also significant, which provides for the involvement of bishops in the assistance to prisoners,Footnote 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.Footnote 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.Footnote 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.Footnote 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 canonsFootnote 83.

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.Footnote 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.Footnote 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.Footnote 86

We will approach these constitutions in chronological order, examining interventions relating to torture and criminal proceedings.Footnote 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).Footnote 88

The constitution establishes the important and noteworthy rule according to which all criminal proceedings were suspended during Lent.Footnote 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.Footnote 90 However, in Theodosius’s provision, it appears to be used with a more general meaning, that is, related to all criminal proceedings.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 96 while the previous one was applied in the Illyricum.Footnote 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).Footnote 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,Footnote 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.Footnote 100

The law, which refers in part to the contents of the previous oneFootnote 101, 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.”Footnote 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.Footnote 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.Footnote 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:Footnote 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 consolatioFootnote 106 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:Footnote 107 respondit ut nihil cruentum sanctis praesertim diebus statueretur.Footnote 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.

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.Footnote 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”;Footnote 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.Footnote 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).Footnote 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.Footnote 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.Footnote 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 activitiesFootnote 116 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.Footnote 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.Footnote 118

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


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

* This chapter was first presented at a conference on “Jewish Law and the Modern State,” Yale University Law School, New Haven, CT, March 5, 2017. Thanks to Alan Appelbaum, Michal Bar-Asher Siegal, Joseph David, David Flatto, Zeev Harvey, Marc Herman, Hannan Hever, Berachyahu Lifshitz, Maren Niehoff, Ishay Rosen-Zv, Yonatan Sagiv, and Eliyahu Stern for having read or heard and astutely commented upon earlier versions of this paper, to Anthony Kronman for critical insights in response to the original oral delivery, and to Benjamin Porat for help in defining the subject. Finally, I wish to thank the two anonymous reviewers for their penetrating insights.

1 Steven D. Fraade, “Nomos and Narrative Before Nomos and Narrative,” Yale Journal of Law and the Humanities 17 (2005): 8196; republished in Steven D. Fraade, Legal Fictions: Studies of Law and Narrative in the Discursive Worlds of Ancient Jewish Sectarians and Sages, Supplements to the Journal for the Study of Judaism 147 (Leiden: Brill, 2011), 1734.

Cover’s essay first appeared as, “The Supreme Court, 1982 Term – Forward: Nomos and Narrative,” Harvard Law Review 97 (1983), 468; reprinted as “Nomos and Narrative,” in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: The University of Michigan Press, 1992), 95172. On nomos (law) being the Greek word consistently employed by the third-century Jewish Greek translators of the Pentateuch for the scriptural Hebrew word torah (teaching), the consequences of which have been enormous, see Fraade, “Nomos and Narrative,” supra Footnote n. 1, 83–85 (as well as Legal Fictions, supra Footnote n. 1, 20–21).

2 Robert Cover, “Obligation: A Jewish Jurisprudence of the Social Order,” Journal of Law and Religion 5, no. 1 (1987): 6573. It was reprinted in Narrative, Violence, and the Law, supra Footnote n. 2, 239–48. My page citations will be to the reprint. The essay was first given orally at the Columbus School of Law, Catholic University of America, as Cover’s contribution to the Symposium “The Religious Foundations of Civil Rights Law,” sponsored by the Interdisciplinary Program in Law and Religion, on April 19, 1986.

3 See Deut. 29:13–14: וְלֹא אִתְּכֶם לְבַדְּכֶם אָנֹכִי כֹּרֵת אֶת־הַבְּרִית הַזֹּאת וְאֶת־הָאָלָה הַזֹּאת: כִּי אֶת־אֲשֶׁר יֶשֶׁנוֹ פֹּה עִמָּנוּ עֹמֵד הַיּוֹם לִפְנֵי יְהוָה אֱלֹהֵינוּ וְאֵת אֲשֶׁר אֵינֶנּוּ פֹּה עִמָּנוּ הַיּוֹם (“I make this covenant, with its sanctions, not with you alone, but both with those who are standing here with us this day before the Lord our God and with those who are not with us here this day” [NJPS]), taken by some commentators (e.g., the Palestinian targumim) to refer to (and obligate) all future generations. Thus the “myth of Sinai” is not just that the Torah was divinely commanded to Israel there and then, but that all subsequent generations are equally bound by virtue of their have been proleptically included. The universal legal question of whether a constitution can obligate successive generations to fulfill the commitments undertaken by its predecessors is famously discussed in Thomas Jefferson’s letter of September 6, 1789 to James Madison in the Papers of Thomas Jefferson, most recently accessed at See also below, Footnote n. 54.

4 Cover,” Obligation,” supra Footnote n. 2, 240.

5 Footnote Ibid., 242–43.

7 On interpretive polysemy and legal pluralism in classical rabbinic sources, see the following: Steven D. Fraade, “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” AJS Review 31 (2007): 140 (as well as Legal Fictions, supra Footnote n. 1, 427–75); Steven D. Fraade, “Response to Azzan Yadin-Israel on Rabbinic Polysemy: Do They ‘Preach’ What They Practice?AJS Review 38 (2014): 339–61; Steven D. Fraade, “‘A Heart of Many Chambers’: The Theological Hermeneutics of Legal Multivocality,” Harvard Theological Review 108 (2015): 113–28.

8 For a thorough treatment of the problematic reception of commandments in post-enlightenment, secularized Jewish societies, see Arnold Eisen, Rethinking Modern Judaism: Ritual, Commandment, Community (Chicago: University of Chicago Press, 1998). For theological reflections on Jewish law as commandment, see Benjamin D. Sommer, Revelation and Authority: Sinai in Jewish Scripture and Tradition, Anchor Yale Bible Reference Library (New Haven: Yale University Press, 2015), esp. 99–146.

9 Cover, ”Obligation,” supra Footnote n. 2, 241.

11 Since the book of Deuteronomy is narratively framed as Moses’s teachings (see Deut., 1:5) forty years after the revelation at Sinai, Moses here can be thought of as a forty-year extension of Sinai, in terms of Cover’s “myth of Sinai.”

12 For some random examples of the noun and verb used biblically with respect to divinely or Mosaically commanded laws, see Exod. 19:7; 25:22; 34:34; 35:1; Lev. 6:3; 27:34; Num. 30:1; 36:13; Deut. 1:3; 4:2, 5; 5:15, 28; 6:1–2, 6, 25; 11:13; 15:15; 24:18, 22; 30:8; 31:10; 34:9; Mal. 3:22. I calculate the frequency of occurrence of such words among the books of the Pentateuch as follows, indicating rounded frequency per 1,000 words: Genesis 1.3, Exodus 3.2, Leviticus 2.9, Numbers 2.8, Deuteronomy 6.2. Note the significantly higher frequency of occurrence in the book of Deuteronomy. For a broader linguistic treatment of mitzvah in tannaitic rabbinic corpora, see Tzvi Novick, What Is Good, and What God Demands: Normative Structures in Tannaitic Literature, Supplements to the Journal for the Study of Judaism 144 (Leiden: Brill, 2010).

13 See Frances Brown, S. R. Driver, and C. A. Briggs, A Hebrew and English Lexicon of the Old Testament (Oxford: Clarendon, 1907), 845b; Gen. 18:19; 49:29, 33; 50:16; 2 Sam. 17:23; 1 Kgs. 2:1; 2 Kgs. 20:1; Isa. 38:1. It is not until rabbinic literature that the nominal form tzava’ah, for a will or testament, is evidenced in b. Bava Batra 147a. See Avraham Even-Shoshan, Hammillon Heḥadash (Jerusalem: Kiryath Sepher, 1979), vol. 5, 2207b. For Hebrew ethical wills across history, see Israel Abrahams, ed., Hebrew Ethical Wills (Philadelphia: Jewish Publication Society of America, 1926; repr. 1976). For ancient exempla, attributed to biblical patriarchs, see James H. Charlesworth, ed., Old Testament Pseudepigrapha, vol.1 (Garden City, NY: Doubleday, 1983), 773995.

14 There is no definite article in the Hebrew for “(the) Teaching (Torah).” The word torah (teaching, instruction) in the book of Deuteronomy can refer to Deuteronomy as a whole (or to some parts thereof), as in Deut. 1:5; 17:18, 19; 31:11, 12. For Deuteronomy’s expanded understanding of torah, see, most recently, John J. Collins, The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul (Oakland, CA: University of California Press, 2017), 2143 (“Deuteronomy and the Invention of the Torah”). However, here it can refer just to the present section (Deut. 33) or to divine/Mosaic teaching more abstractly. In later times the word would denote the Pentateuch as a whole, and in still later times, as we shall see, to the totality of Torah teaching, both scriptural (“written”) and rabbinic (“oral”). See below, Footnote nn. 20–22. Sir. 24:23 (LXX) equates the Torah of our verse with the “book of the covenant” (cf. Exod. 24:7; 2 Kgs. 23:2). For a variety of midrashic understandings of “heritage” in this verse, see Sifre Deut §345 (ed. Finkelstein, 402), on which see Steven D. Fraade, From Tradition to Commentary: Torah and Its Interpretation in the Midrash Sifre to Deuteronomy (Albany: State University of New York Press, 1991), 5660. For the continuing importance of this verse in Jewish religious culture and education, see Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: Jewish Publication Society, 1996), 321–22; 407 Footnote n. 40. For this verse standing for the Torah as a whole, see b. Sukka 42a; b. Bava Batra 14a.

15 For a detailed analysis of the of Moses’s failed petition in Sifre Deuteronomy, see Steven D. Fraade, “Sifre Deuteronomy 26 (ad Deut. 3:23): How Conscious the Composition?Hebrew Union College Annual 54 (1983): 245301.

16 This is a common question in interpreting midrashic commentary as a redacted collection of discrete exegetical comments. For consideration of this question, pursued with respect to another section of the Sifre Deuteronomy commentary, see Fraade, “Sifre Deuteronomy,” supra Footnote n. 15, 245–301.

17 Unless otherwise indicated, I transcribe the text according to MS London 341, with slight adjustments. I was able to access it from microfilm. This manuscript is adopted by the data base of the Academy of the Hebrew Language (Maʾagarim), since MS Vatican 32, which is generally preferred, is not extant here. Louis Finkelstein’s standard edition (384–85) significantly departs from this and related manuscripts in the last lines of this section of the midrash, which I shall discuss in due course. I only indicate variants to this manuscript when they affect the meaning significantly enough as to have a bearing on my argument. I have treated this passage previously, although in different detail and for different purpose, in From Tradition to Commentary, supra Footnote n. 14, 119–20, with notes. The Sifre to Deuteronomy is an anthology of tannaitic (70–220 CE Palestine) exegetical traditions, redacted in the mid- to late third century CE. For a brief critical introduction, see Menahem Kahana, “Sifrei,” in Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik, 2nd ed., vol. 18. (Detroit: Macmillan Reference USA, 2007), 562–64.

18 For measuring the heavenly Temple, see Ezek. 40:3–42:20; Zech. 2:1–5; Rev. 11:1–2.

19 For the triad of heart (=mind), eyes, and ears, see Deut. 29:3; Isa. 6:10; 32:3–4a; Jer. 5:21. For the combination of seeing and hearing of revelation, see Exod. 20:15 (18), as rabbinically (and Philonically) interpreted, as discussed in my article, Hearing and Seeing at Sinai: Interpretive Trajectories,” in The Significance of Sinai: Traditions about Sinai and Divine Revelation in Judaism and Christianity, ed. George J. Brooke, Hindy Najman, and Loren T. Stuckenbruck, Themes in Biblical Narrative 12 (Leiden: Brill, 2008), 247–68 (as well as Legal Fictions, supra Footnote n. 1, 501–22). For the visual aspects of rabbinic textuality, see Rachel Neis, The Sense of Sight in Rabbinic Culture: Jewish Ways of Seeing in Late Antiquity (Cambridge: Cambridge University Press, 2013).

20 On the rabbinic phrase “words of Torah” denoting both biblical and rabbinic oral Torah, see Fraade, From Tradition to Commentary, supra Footnote n. 14, 258 n. 219. See especially Sifre Deut. 306 (ed. Finkelstein, 339): “So too words of Torah are all one, but they comprise miqrāʾ (Scripture) and mišnâ (oral teaching): midrāš (exegesis), hălākôt (laws), and haggādôt (narratives).” For treatment, see Fraade, From Tradition to Commentary, supra Footnote n. 14, 97.

21 Deut. 17:19; 27:3; 27:8, 26; 28:58; 29:28; 31:12, 24; 32:46. For the later expression “the Torah,” see Neh. 8:18; 2 Chr. 34:14.

22 Josh. 8:34; 2 Kgs. 23:24; Neh. 8:9, 13; 2 Chr. 34:19.

23 This is a fear frequently expressed in tannaitic texts, including in Sifre Deut. See Shlomo Naeh, “ʾOmanut ha-zikkaron: mivnim shel zikkaron ve-tavniyot shel tekst be-sifrut ḥazal,” in Meḥqerei Talmud III: Talmudic Studies Dedicated to the Memory of Professor Ephraim E. Urbach, eds. Yaakov Sussmann and David Rosenthal (Jerusalem: Magnes, 2005), 543–89; Fraade, From Tradition to Commentary, supra Footnote n. 14, 105–19 (on Sifre Deut. §48); Marc Hirshman, The Stabilization of Rabbinic Culture 100 C.E.–350 C.E.: Texts on Education and Their Late Antique Context (Oxford: Oxford University Press, 2009), 3148 (“Sifre Deuteronomy: The Precariousness of Oral Torah”). For the view that the fear here is one of loss of memory, especially of the Oral Torah, see the commentary to the Sifre by David Pardo (1719–92). On the textual reading, “like mountains suspended by a hair,” see the excellent discussion by Michal Bar-Asher Siegal, “Mountains Hanging by a Strand? Re-Reading Mishnah Ḥagigah 1:8,” Journal of Ancient Judaism 4 (2013): 235–56; מיכל בר-אשר סיגל, ‘‘לפשר הביטוי ‘כהררים התלויים בשערה‘ (משנה, חגיגה א, ח)‘‘, Leshonenu 76.1-2 (5774/2004): 137–48, whose argument for replacing the word “mountains” (hararim) with one that denotes “dry desert bushes” (ḥararim) is more relevant to the Mishnah and Tosefta than to the Sifre (where there are no manuscript variants to hararim), and in any case would not change the meaning of the passage for my present argument. The Hebrew word used here for the plural “mountains” (hararim; construct form, harerei) is found both in Scripture (twelve times) and in tannaitic texts (sixteen times). For the former, see Num. 23:7; Deut. 8:9; 33:15; Jer. 17:3; Hab. 3:6; Ps 30:8; 36:7; 50:10; 76:5; 87:1; 133:3; Song. 4:8. For the latter (in addition to Sifre Deut. §335; m. Ḥag.. 1:8; t. Ḥag. 1:9; and t. Erub. 8:23), see Sifre Deut. §353 (ed. Finkelstein, 414.1–2; five times); Midrash Tanaʾim Deut. 33:15 (ed. Hoffman, 217; three times); Mek. R. Ishmael Amalek 1 (ed. Horovitz-Rabin, 177.1); Mek. R. Shimʿon bar Yoḥai Exod. 17:8 (ed. Epstein-Melamed, 119.22); Sifra Mek. Demiluʾim 37 (ed. Weiss, 46a.3); Sifre Num. §161 (ed. Horovitz, 223.7). The frightening image of a mountain (Sinai) cut off and suspended in the air, can be found in the Mekhilta of R. Ishmael Baḥodesh 3 (ed. Horovitz-Rabin, 214.17, with note).

24 MS London 341, with minor adjustments. See above, Footnote n. 17. This manuscript is, by and large, consistent with MS Berlin 151, Yalquṭ Shimʿoni, the First Printing (Venice, 1546), Liqutei Aggadot Sifre (MS Oxford 937, photocopies of which were provided to me by Yonatan Sagiv), being French-Ashkenazi-Italian in provenance. For those noting that the text at the end of the passage, in all its attestations, is corrupt, see the commentaries ad loc. of Eliezer Naḥum (ca. 1660–1746) (מגומגם [“confused”]), David Pardo (מגומגם מאד [“very confused”]), and Louis Finkelstein (1895–1991) (המעתיקים שבשו את כל המאמר [“the copyists ruined the whole passage”]).

25 The words within parentheses are a scribal error, and are marked as such by the scribe. This is presumably an error of homoioteleuton, since the words שהיו רצים appear in the Sifre’s next comment (§336, ed. Finkelstein, 386 line 4), also in conjunction with the expression, על אחת כמה וכמה. My thanks to Yonatan Sagiv for pointing this out.

26 Literally, “I need to give you credit.” Compare m. ‘Abot 2:8; 6:6. For “be grateful,” see Marcus Jastrow, A Dictionary of the Targumin, the Talmud Bavli and Jerushalmi, and the Midrashic Literature (New York: Choreb, 1926), 444b; Eliezer ben Yehuda, A Complete Dictionay of Ancient and Modern Hebrew, vol. 3 (Jerusalem: Makor, 1980), 1491b (Hebrew), citing our Sifre passage. See also Rashi to Num. 25:12, cited by Aruch Hashalem, ed. Alexander Kahut, vol. 3, 361–62, under the entry “חזק”and the sub-entry :‘‘החזיק טוב‘‘ ‘‘‘את בריתי שלום‘. שתהא לו לברית שלום. כאדם המחזיק טובה וחנות למי שעושה עמו טובה אף כאן פירש לו הקב‘‘ה שלומותיו.‘‘ (“‘My covenant of peace’: It should be for him a covenant of peace. Just as a person is grateful and gracious to one who does him a favor, so here the Holy One, Blesed Be He, assured him of his peace”). Finally, see Z. Ben-Ḥayyim, תיבת מרקה [Tibåt Mårqe]: A Collection of Samaritan Midrashim (Jerusalem: The Israel Academy of Sciences and Humanities, 1988), 58 (Footnote n. 2 to Footnote n. 15), for החזיק טובה as the equivalent of Aramaic אחסן טבו. My thanks to Berachyahu Lifshitz for having brought the last to my attention.

27 These are not otherwise known to have been students of Rabbi Judah the Patriarch. See Ofra Meir, Rabbi Judah the Patriarch: Palestinian and Babylonian Portrait of a Leader (Tel-Aviv: Hakibbutz Hameucḥad, 1999), 137–38 (Hebrew). For variant names, see Finkelstein’s critical apparatus ad loc.

28 I take what follows not to be the “words” of Rabbi Judah the Patriarch, but of the anonymous midrashist or redactor.

29 The text’s syntax here (ואילו אחר) is difficult and its meaning unclear. I will return to the word אחר below. I take it to mean that had Moses not been such a great prophet, or had the Torah-giver been someone else (inferior) altogether. But see below, Footnote n. 36.

30 Note the switch here from second-person singular to first-person plural (“we”) here. I understand “his Torah” to refer to the Torah of “someone else.” and “we” to be the perpetual we of the text’s readers/auditors. See below at Footnote n. 52.

31 Compare the expression אינו שוה כלום (“it is not worth a thing”), appearing three times in the Sifra, four times in the Babylonian Talmud, and eleven times in the aggadic midrashim. I take this sentence to be rhetorical, and in disbelief: would not the Torah have had value regardless of its “author”? Note that in the commentary to the Sifre attributed to RaBad (“Pseudo-RaBaD”) (ed. Basser, 315), the commentator comments with a single word, בתמיה (“in disbelief”).

32 I understand this enigmatic statement to mean, “How much more so is it to be valued since it was given by none other than the great Moses and maintained, generation to generation, ever since!” My explanatory insertion is necessary to make sense of the text, especially the awkward, “How much more so.” For similar understandings, see the eighteenth-century commentary to the Sifre, Zeraʿ ʾavraham by R. Abraham Yequtiʾel Zalman Lichtstein, as well as that of R. Moses David Abraham Treves Ashkenazy (1780–1856) in his commentary to the Sifre, Toledot ʾadam. For additional readings and suggested meanings, see Herbert W. Basser, Midrashic Interpretations of the Song of Moses (New York, Frankfort on the Main, Berne: Peter Lang, 1984), 263–65; Herbert W. Basser, In the Margins of Midrash: Sifre Ha’azinu Texts, Commentaries, and Reflections (Atlanta: Scholars Press, 1990), 157, 181. Ishay Rosen-Zvi has suggested to me that a rhetorical understanding of “how much more so” to mean that the value of the Torah is in itself and in subsequent generations having received and maintained it, and not in its having originated with Moses. Its value is all the greater (“how much more so”) for having been passed down from generation to generation regardless of its originator. Stated differently, “Who wrote the Bible?” is irrelevant to its value as having been continually transmitted and received.

33 I understand this to mean, “You (in each generation) are to enjoin (command) them upon your children,” even if they had been originally commanded by someone else, but all the more so since they were commanded by the great Moses.

34 Midrash Ha-Gadol Deut. 32:46 (ed. Fisch, 737); also included in Midrash Tannaʾim ad loc. (ed. Hoffmann, 205) with minor variants; Midrash Leqaḥ Ṭov ad loc. (ed. Buber, 120). The unique relationship between Midrash Ha-Gadol and Midrash Leqaḥ Ṭov is evidenced by the fact that they alone have the following sentence in the above story of Rabbi Judah the Patriarch: לא זז מקרבן עד שקרבן לפני רגליו (“He [Rabbi] did not cease urging them to come closer until they were as close as his feet”). For a stematic chart showing this textual branch, see Menahem Kahana, “Prolegomena to a New Edition of the Sifre on Numbers” (PhD dissertation, Hebrew University, 1982), 276 (Hebrew).

35 Midrash Leqaḥ Ṭov has גדול העולם (“the greatest in the world”).

36 It has been suggested to me that the word אחר in MS London and its related witnesses be taken in the temporal sense of “after” (as previously in אחרי [“after me”] and אחריכם [“after you”]). This too, however would require emendation: אילו אין משה גדול הוא ואילו אחר (ו)קיבלנו תורתו לא הייתה תורתו שוה [כלום (“If Moses had not been great, and if after [him] (and) we had received his Torah, would his Torah have not been worth [a thing]?”). Consider as well Deut. Rab. 8:6, commenting on Deut. 30:11–12: “‘It is not in the heavens’: Moses said to them: So that you should not say another (אחר) Moses will arise and bring us a different (אחרת) Torah from the heavens.” My thanks to Berachyahu Lifshitz for bringing this text to me attention.

37 For this possibility, see Kahana, “Prolegomena,” supra Footnote n. 34, 265 (Hebrew). Note that two of the modern commentators to the Sifre who consider its text to be corrupt (see above, Footnote n. 24), David Pardo and Eliezer Naḥum (ed. Kahana, 432), appear to favor the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov recension, and paraphrase the Sifre’s text accordingly.

38 The word אנו (“for us”) is provided by Finkelstein to make sense of the sentence, but is, as he admits, missing in all manuscripts. As we have seen, the GRA makes the same insertion into the Sifre’s text (“How much more is this the case for us!”). This expression (including “for us”) appears thirty-four times in classical rabbinic literature, twenty-seven of which are in the aggadic midrashim, but this is its only occurrence in the tannaitic corpora. It will be discussed below. Note that in a printed edition of Yalquṭ Shimʿoni (Jerusalem, 1960), 678, the word עכשיו (“now”) is inserted within square brackets where Finkelstein and the GRA insert אנו (“for us”), in either case bringing the midrashic lesson to the present readers of the text.

39 The Hebrew verb employed here, lishmor, is commonly used biblically for keeping commandments or fulfilling obligations. See, for example, Exod. 12:17; 23:15; Deut. 5:1, 12; 29:8. In rabbinic Hebrew, it gains as well the sense of preserving (leqayyem) teachings in one’s memory. See Fraade, From Tradition to Commentary, supra Footnote n. 14, 258 n. 222.

40 Note the emphasis on transmission to both one’s children and children’s children (grandchildren). For a similar emphasis, see Deut. 4:9; 31:13; Exod. 10:2. Since Deut. 34:9 states that the present generation of Israelites “heeded him [Moses], doing as the Lord had commanded Moses,” it might be assumed that Moses’s was more worried about the next generation, not yet part of his audience, than the present generation. Compare Mek. R. Ishmael Beshallaḥ 1 (ed. Horovitz-Rabin, 80.6–10), commenting on Exod. 13:19: “He [Joseph] made the children of Israel surely swear” that they would carry his bones with them when they left Egypt. The doubling (infinitive absolute) of the verb “swear” in the biblical Hebrew is midrashically interpreted to mean that the Israelites, and Joseph’s brothers in particular, not only swore themselves, but legally obligated their children as well under the oath.

41 For the intellectual/pedagogical preoccupation of Deuteronomy see Tigay, The JPS Torah Commentary, supra Footnote n. 14, xvii–xviii. For other examples, see Deut. 1:5; 4:1, 5, 9; 5:1; 6:7, 20–25; 11:19; 17:18-19; 31:11–13.

42 See above, Footnote n. 39.

43 See Sifre Deut. §34 (ed. Finkelstein, 61) to Deut. 6:7: “‘Impress them upon your children’ (וְשִׁנַּנְתָּם לְבָנֶיךָ): These are your students. Similarly, you find that in every place students are called children.”

44 For the dialectical tension between the two, see Yair Furstenberg, “The Agon with Moses and Homer: Rabbinic Midrash and the Second Sophistic,” in Homer and the Bible in the Eyes of Ancient Interpreters, ed. Maren R. Niehoff, Jerusalem Studies in Religion and Culture 16 (Leiden: Brill, 2012), 299328.

45 This occurs in both strands of the tradition. See above, Footnote n. 30 for the MS London tradition, and above, Footnote n. 38 and below at Footnote n. 52, for the Midrash Ha-Gadol – Midrash Leqaḥ Ṭov tradition as incorporated by the GRA and Finkelstein in their emendations.

46 Free choice, but with sharp covenantal consequences either way, is a central theme running through the book of Deuteronomy, but see, in particular, Deut. 11:26–28; 30:15–30. The shift to the more local, intimate, and individualized didactic relation of Judah the Patriarch to his students, might reflect the social reality of the rabbinic “movement” of the time of the Sifre’s composition and redaction (second-third century CE), comprised as it was of small master-disciple study circles. See, for example, Shaye J. D. Cohen, “The Rabbi in Second-Century Jewish Society,” in The Cambridge History of Judaism, vol. 3, The Early Roman Period, eds. W. Horbury, W. D. Davies, and J. Sturdy (Cambridge and New York: Cambridge University Press, 1999), 922–90.

47 For more on this tension, see Natalie B. Dohrmann, “Can ‘Law’ Be Private? The Mixed Message of Rabbinic Oral Law,” in Public and Private in Ancient Mediterranean Law and Religion, ed. Clifford Ando and Jörg Rüpke, Religionsgeschichtliche Versuche und Vorarbeiten 65 (Berlin: De Gruyter, 2015), 187–216.

48 I am indebted to Ishay Rosen-Zvi for these suggestions. For Rabbi Judah the Patriarch (and his successors) receiving the salutation (salutatio) due to a patron, see Aharon Oppenheimer, Rabbi Judah ha-Nasi (Jerusalem: The Zalman Shazar Center, 2007), 5253 (Hebrew). For patronage salutations and gifts in early rabbinic literature, see Mekhilta of R. Shimʿon bar Yoḥai to Exod. 22:24 (ed. Epstein-Melamed, 212). For the “gift economy” and patronage more broadly in the ancient world, see Phebe Lowell Bowditch, Horace and the Gift Economy of Patronage, Classics and Contemporary Thought 8 (Berkeley: University of California Press, 2001), esp. 3163 (“The Gift Economy of Patronage”). For patronage in ancient Jewish societies more broadly, see Seth Schwartz, Were the Jews a Mediterranean Society? Reciprocity and Solidarity in Ancient Judaism (Princeton: Princeton University Press, 2009).

49 See above, Footnote n. 20.

50 See above, Footnote n. 31.

51 See above, Footnote n. 30.

52 For this exegesis in Sifre Deut, see §33 (ed. Finkelstein, 59), to Deut. 6:6; §41 (ed. Finkelstein, 86), to Deut. 11:13; §58 (ed. Finkelstein, 124), to Deut. 11:32; §153 (ed. Finkelstein, 206-207), to Deut. 17:9 and §345 (ed. Finkelstein, 402), citing Deut. 29:9. See Fraade, From Tradition to Commentary, supra Footnote n. 14, 256 n. 196. By my count, “this day” appears forty-two times in the Book of Deuteronomy. For all of Israel, throughout the generations, having been included in the revelation and obligation at Sinai “this day,” see above, Footnote n. 3.

53 See above, Footnote n. 23.

54 See Edmund Burke, Reflections on the Revolution in France (1890), ed. Frank M. Turner (Rethinking the Western Tradition, New Haven: Yale University Press, 2003), 8183 (here 82). Burke continues: “But one of the first and most leading principles on which the commonwealth and the laws are consecrated, is lest the temporary possessors and life-renters in it, unmindful of what they have received from their ancestors, or of what is due to their posterity, should act as if they were the entire masters; that they should not think it among their rights to cut off the entail, or commit waste on the inheritance, by destroying at their pleasure the whole original fabric of their society; hazarding to leave to those who come after them a ruin instead of an habitation – and teaching these successors as little to respect their contrivances, as they had themselves respected the institutions of their forefathers. By this unprincipled facility of changing the state as often, and as much, and in as many ways, as there are floating fancies and fashions, the whole chain and continuity of the commonwealth would be broken. No one generation could link with the other. Men would become little better than flies of a summer” (81), or “like mountains suspended by a hair.” For a philosophical meditation on the necessary confidence in a “collective afterlife” (and the potential consequences of its termination) for human projects including law, see Samuel Scheffler, Death and the Afterlife, with commentaries by Susan Wolf, Harry G Frankfurt, Seana Valentine Shiffrin, and Niko Kolodny, ed. and intro. Niko Kolodny (Oxford: Oxford University Press, 2013), relating to Moses on p. 35. See also above, Footnote n. 3.

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

1 This applies to these categories literally. The idea of a distinction between types of norms, religious and social, is very old and can be found already in Philo, in Roman law, and in early Christianity. See below, Section V.B (Philo); Appendix A (Roman law); Section V.C (early Christianity).

2 Zechariah Frankel, Darkei hamishnah (Tel Aviv, 1958/9), 94 Footnote n. 3; Gedalia Alon, The Jews in Their Land in the Talmudic Age, 70–640 C.E., Vol. 1 (Jerusalem, 1980), 104.

3 B Rosh Hashanah 17b–18a Hebrew according to JTS MS 218 (270 EMC); translation from the William Davidson Talmud (at, accessed March 8, 2017).

Var. lect. : בלודיא | Most MSS: בלוריא; Munich 140: ברוריא.

בתורתכם | Haim Z. Dimitrovsky, Śeride Bavli II.1 (New York: Jewish Theological Seminary, 1979), 233: בתורה.

כאן בעברות שבין אדם לחברו כן בעברות שבין אדם למקום | Munich 95 (and Ed. Venice and Dimitrovsky): כאן בעבירות שבין אדם למקום כאן בעבירות שבין אדם לחבירו | London, BL, Harl. 5508 (400) :(בסיפא) כאן בעבירות שבין אדם לשמים

4 The problem of God’s favoritism appears in several locations in talmudic literature and is resolved in various ways. See Menahem Kahane, Sifre Bamidbar, Annotated Edition, Part II (Jerusalem, 2011), 324.

5 It is possible that Rabbi Jose the Priest’s distinction is based on the context of the two verses cited. The verse that follows “who will not show favor or take bribes” (Deut. 10:17) concerns interpersonal matters: “Who executes justice for the orphan the widow, and loves the stranger, giving him food and clothing” (v. 18). On the other hand, “the Lord will show you favor” is part of the priestly blessing (Num. 6:22–27), as part of a string of the Lord’s favor bestowed on the Israelites through the use of the divine name – clearly in the domain of human-divine relations.

6 The parable of the king and the creditor is based on a well-known practice in the Greco-Roman world, where oaths invoking the ruler’s life were common. See Saul Lieberman, Greek in Jewish Palestine: Hellenism in Jewish Palestine (New York, 1994), 192–93; Samuel Krauss, Paras ṿe-Romi ba-Talmud u-va-midrashim [Persia and Rome in the Talmud and Midrash] (Jerusalem, 1947), 6568. The distinction between the king’s law and heavenly law in relation to false oaths (“for my insult I forgive you, but you must still go and appease your friend.”) represents a well-known and mirror-image situation in Roman law. See the Code of Justinian 82.11.1: “The punishment for perjury oath will be imposed on them by God. … We do not expect that the punishment for perjury will be imposed on them by a human”; Footnote ibid., 6.3.21 (Ulpian): If a person took an oath and subsequently died, and is found to have perjured himself, according to Marcellus, “the religious aspect of the oath shall be taken into account.” See also Krauss, Paras ve-Romi, 68: “Among the Romans, an earthly court did not punish perjury, because judgment is [left for] God.”

Scholars of Roman law have different views about how the courts’ recusal from cases of perjury should be understood. Some have seen it as a result of the fundamental separation that Roman law maintained between religious law and secular law. See Fritz Schulz, Classical Roman Law (Oxford, 1951), 370: an injury to the gods is a matter for the gods (“Deorum iniuria diis curae”). Another opinion is that the prosecution of perjury is reserved to the gods because of procedural considerations: the legal system’s limited ability to take effective action against perjurers. In general, the law resorts to religious tools only as a last resort, when other legal instruments cannot be used. This is the case for curses and oaths, where the difficulty of enforcement leads to a dependence on religious “tools.” See Alan Watson, The State, Law, and Religion: Pagan Rome (Athens, GA: 1992), 4950. For a broader discussion of the distinction between religious law (ius divinum) and human/secular law (ius humanum) in Roman law, see Appendix A.

7 Shmuel Klein, “Shalosh matanot tovot” [Three good presents], Zion 1 (1926), 12; Adolf Büchler, The Economic Conditions of Judæa after the Destruction of the Second Temple (London: Jews’ College, 1912), 6667; Moshe David Herr, “The Historical Significance of the Dialogues between Sages and Roman Leaders” [Hebrew], Proceedings of the Fifth World Congress of Jewish Studies, Division IV (1969): 282–83; Gedalia Alon, The Jews in Their Land in the Talmudic Age, 70–640 C.E., Vol. 2 (Jerusalem, 1984), 561 (Belloria is Valeria); Tal Ilan, Lexicon of Jewish Names in Late Antiquity, vol. 1 (Tubingen, 2002), 50, and 344.

8 “It is written in your Torah” declares the questioner’s attitude towards the Torah – your Torah, not ours. However, Ezra Zion Melamed, Midreshei halakhah shel ha-tanaʻim ba-talmud ha-bavli (Jerusalem, 1988), 347, Footnote n. 4, had difficulty with this formulation and proposed deleting “your Torah”: Belloria is a convert, not a non-Jew. So too Dimitrovsky, Śeride Bavli. However, in all manuscripts the text is “it is written in your Torah.” The tenor of this phrasing is usually critical and belligerent. See, for example: M Avodah Zarah 3:4 (the query addressed by Proclos son of Philosophos to Rabban Gamaliel) and Abraham Wasserstein, “Rabban Gamaliel and Proclus of Naucratus”, Zion 45 (1980): 257–67; Mekhilta de-Rabbi Ishmael, Ba-ḥodesh 6, Horowitz & Rabin ed., 226 (a philosopher and Rabban Gamaliel); B Berakhot 32b (a hegmon and a pious man); B Avodah Zarah 17a (Jacob of Kefar Saknia, “one of the disciples of Jesus the Nazarene,” asked Rabbi Eliezer), and the parallel in Ecclesiastes Rabbah 1:3. See also David Rokeaḥ, “Ben Sitra is Ben Pantera – Clarification of a Philological-Historical Problem”, Tarbiẓ 39 (1969): 912. In one case, a Jewish sage uses this formulation in a polemic against the Kuthites (Samaritans). See J Sotah 7:5 [21c], eds. Academy of the Hebrew Language, 934: “Rabbi Eleazar son of Rabbi Simeon said: I told the Kuthite scribes: You have forged your Torah and have not done yourselves any good, because you wrote into your Torah near Elonei Moreh Shekhem…” See also: Midrash Tanna’im Deut. 15, 10, Hoffman ed., 84 (a philosopher and Rabban Gamaliel).

9 Niṭpal le [he responded to] implies a quarrelsome and sometimes even belittling reply to an antagonistic questioner. See, for example, B Eruvin 64b (Rabbi Ila’i to a non-Jew); B Bava Batra 115b and B Menaḥot 65a (R. Johanan ben Zakkai to Sadducees); Megillat Ta’anit, ed. Vered Noam (Jerusalem, 2004), 61 (R. Johanan ben Zakkai to a Boethusian). See also Ben Yehuda Dictionary, s.v. טפל, 1910 (“began to speak and argue with”); Krauss, Paras ṿe-Romi, 66.

10 Parables (“I shall use a parable to explain what this matter is like”) are used in many non-polemical contexts as well, but are especially common in polemical contexts. See: David Stern, “Tafkido shel hamashal be-sifrut Hazal” [The function of the parable in rabbinic literature], Jerusalem Studies in Hebrew Literature (1985): 92 Footnote n. 5. For additional sources see: Avot de-Rabbi Nathan, Recension B, ch. 8, ed. Schechter, 24; Mekhilta de-Rabbi Ishmael, Ba-ḥodesh VI, 226; B Shabbat 108a; B Bava Batra 10a; B Sanhedrin 91a; B Avodah Zarah 54b–55a.

11 In most cases, this term describes the halakhic revolution that Rabbi Akiva introduced by determining that the halakhah is according to the rulings of the School of Hillel, and not the School of Shammai’s rulings, which had previously been the norm. See: J. N. Epstein, “Le-mishnat Rabbi Yehuda (le-ḥeqer meqorot ha-mishnah),” Tarbiẓ 15 (1943): 5 (“R. Akiva ruled in support of the House of Hillel”); Avraham Goldberg, “Tannaim in the generation of R. Judah the Prince,” Proceedings of the World Congress of Jewish Studies 6 (1973): 9294; Shmuel Safrai, “The Decision in Favor of the School of Hillel in Yavneh,” Proceedings of the World Congress of Jewish Studies 7 (1977): 4041. See also: M Ma’aser sheni 5:8; M Nedarim 9:6 (and parallel, T Nedarim 5:1, ed. Lieberman, 114); T Pesaḥim 1:7, ed. Lieberman, 142; T Mo’ed qatan 2:10, ed. Lieberman, 371; Footnote ibid. 2:14, 372; Sifra, Metzora, Zavim, vol. 3, 79c (and parallel, B Shabbat 64b); B Qiddushin 57a (and parallel, B Bekhorot 6b); B Bava Metzia 62a.

12 Rabbi Jacob Ettlinger noted the link between Rabbi Akiva’s two homilies in Arukh la-ner, Niddah 70b: “And regarding the fact that Rabbi Akiva was uncomfortable with Rabbi Jose the Priest’s resolution, we can say that he is consistent with his own position: … that if one does not repent sins against his fellow, then what sinned against God is not forgiven either. Thus partial repentance will be of no benefit, since ‘from all your sins before God shall you be purified.’ So Rabbi Akiva, consistent with his position and not holding such an opinion, is uncomfortable with this answer, and [instead] reconciles the texts: here, before the final judgment, and there after the final judgment.” See also below, Footnote nn. 17 and 48.

13 Sifra, Aḥarei mot 5:8, acc. to MS Vatican 66.

14 M Yoma 8:8–10, MS Kaufman.

15 Regarding the argument about how the two homilies punctuate the verse, see: Mordechai Breuer, Ṭaʻamei ha-miqra be-21 sefarim u-ve-sifre emet [The cantillation marks in the 21 books and Job-Proverbs-Psalms] (Jerusalem Mikhlalah, 1982), 375; Simcha Kogut, Ha-Miqra, ben ṭeʻamim le-farshanut [Correlations between biblical accentuation and traditional Jewish exegesis] (Jerusalem, 1996), 64, 125–26. Rabbi Akiva’s reading is consistent with the placement of the cantillation marks in the MT. Rabbi Eleazar’s reading is according to the Temple tradition. See Maimonides, Mishneh Torah, Laws of the Yom Kippur Service, 2:7: “During each of the three confessions, he [the high priest] would intend to complete the Tetragrammaton with those blessing [reciting barukh shem kevodo le’olam va’ed – Blessed be His glorious name forever and ever], and he would [then] say to them ‘you shall be purified’ [completing the verse].” In other words, there was a pause in the reading of the verse by the high priest between “The Lord” and “you shall be purified.” The source of this tradition seems to be Jose ben Jose’s liturgical poem Atta konanta, which the Geonim knew. See: Aaron Mirsky, Piyyuṭei Yose ben Yose [Jose ben Jose’s liturgical poems] (Jerusalem, 1977), 1314, 162, 164, 169; Teshuvot ha-ge’onim ha-ḥadashot [The new responsa of the Geonim], ed. Simcha Emanuel, § 115, 23. On the other hand, see: Zvi Malachi, Ha-avodah le-yom ha-kippurim—ofyah, toldoteha, ve-hitpatḥutah ba-shirah ha-ivrit [The Yom Kippur service: character, history, and development in Hebrew poetry] (Jerusalem, 1974), 1920.

In addition to the disagreement about the punctuation of the verse, there is also an hermeneutical disagreement about the word “before.” According to R. Eleazar ben Azariah, it means “in the eyes of” (“designating the one who calculates or evaluates”), meaning: “your sins before God” are the sins in God’s eyes – “between you and Him.” According to Rabbi Akiva, however, “before” “designates the object of the activity” or the “direction,” and “before God shall you be purified” means that the purification is directed towards God. See: Eliezer Rubinstein, “Lifnei ṣ. sh. [Before ṣ. sh.] Leshonenu 40 (1975): 5864. See also BDB, s.v. פנה (Oxford, 1957), 816–17; KBL, s.v. פנה (Leiden, 1996), 942; Menachem Zvi Kaddari, Dictionary of biblical Hebrew, s.v. פנים (Ramat-Gan, 2006), 865.

16 See Kogut, Ha-miqra, 64; Ettlinger, Arukh la-ner.

17 Rabbi Akiva’s homily deduces general purification from all transgression from two verses: First: “And I shall throw upon you pure water and you shall be purified; I shall purify you from all your impurities and from all your fetishes” (Ezek. 36:25). The second: “Hope of Israel! O Lord! All who forsake You shall be put to shame” (Jer. 17:13), which refers to the sins referenced in the preceding verses, including those against God (17:1–3) and those against human beings (v. 11).

18 Other sources preserve a different tradition about Rabbi Akiva’s position. See Numbers Rabbah, 11:7, MS Munich 97. Cf.: Midrash Hagadol, Numbers 6:26, ed. Z. M. Rabinowitz (Jerusalem, 1997), 95.

19 Compare with Footnote n. 6 above.

20 Jesus’s words were originally a “great rule in the Torah,” mistranslated into Greek as “a great commandment.” See David Flusser, “The Ten Commandments and the New Testament,” in ʻAśeret ha-dibberot bi-reʼi ha-dorot [The Ten Commandments through the generations], ed. B. Z. Segal (Jerusalem, 1986), 180; Serge Ruzer, “Ṣemed ha-ṣivvuyim ‘ve-ahavta’ bi-vrit ha-ḥadashah u-ve-sereh ha-yaḥad” [The double love precept in the New Testament and in the Rule of the Congregation], Tarbiẓ 71 (2002): 354, Footnote n. 5.

21 Similarly in Mark 12:28–31 and Luke 10:25–28. See Victor Paul Furnish, The Love Command in the New Testament (London, 1972), 3334; Victor Paul Furnish, “Love of Neighbor in the New Testament,” Journal of Religious Ethics 10 (1982): 327–34. See also: Ruzer, Footnote ibid.

22 Sifra, Qedoshim 2:4.12, MS Vatican 31. It is uncertain whether the core of the debate between Ben Azzai and Rabbi Akiva is exegetical or theological. If the latter, Ben Azzai sees loving one’s fellow as a social and moral obligation (“the genealogy of Man”), whereas Rabbi Akiva sees it as also a religious obligation (see immediately below). If the former, Ben Azzai too holds that loving one’s fellow is a religious obligation and is building mainly on the end of the verse: “This is the book of the genealogy of Man … in God’s image made He him” (Gen. 5:1). See Rabbi Joseph Saul Nathansohn, Ziyyon vi-yrushalayim, on J Nedarim 9:4 (Vilna: 1925/6), 30b.

23 Jesus’s view about the two rules was accepted in the Jewish world of the late Second Temple period, earlier echoes of it can be found at least since Jubilees. See George Foot Moore, Judaism in the First Centuries of the Christian Era, II (Cambridge, MA, 1955), 86; below, Footnote n. 50; David Flusser, ʻAśeret ha-dibberot, 168–69, 172–74 at Footnote nn. 21–27, and 177 at Footnote nn. 35–36 ( David Flusser, Yahadut bayit sheni, ḥakhameha ve-sifrutah [Second Temple Judaism, its sages and literature] (Jerusalem, 2002), 164–65, 168–69, 173; Ruzer, “Ve-ahavta,” 362–65. Flusser holds that some talmudic sages supported the demand for double love (of God and of fellow). See David Flusser, “A New Sensitivity in Judaism and the Christian Message,” Harvard Theological Review 61 (1968): 112–13. However, Flusser, ʻAśeret ha-dibberot, at Footnote n. 28, holds that there is no explicit expression of this position in talmudic literature, in deference to Rabbi Akiva’s authority.

For another discussion about similar polemic between R. Akiva and early Christianity, see Appendix B.

24 M. Weinfeld, “Julius Wellhausen’s Understanding of the Law of Ancient Israel and Its Fallacies,” Shnaton: An Annual for Biblical and Ancient Near Eastern Studies 4 (1980): 69: “The two elements – the love of God and the love of his fellow, were merged by R. Akiva, the most prominent representative of the Pharisees” (as opposed to the Christian separation between the two). It appears that Rabbi Akiva’s position is based on Hillel’s statement in B Shabbat 31a (MS Oxford 366): “On condition that you teach me the entire Torah. … He said to him: that which is hateful to you, do not do to your fellow.” See Theodor’s note in Genesis Rabbah with Minhat Yehudah, J. Theodor and Hanoch Albeck, eds. (Jerusalem, 1965), 237; Israel Abrahams, Studies in Pharisaism and the Gospels (New York, 1967), 2124.

25 J Berakhot 9:5 [14b], ed. Academy of the Hebrew Language, 75, and B Berakhot 61b (the words of Rabbi Akiva himself); Sifre, Deuteronomy 32, ed. Finkelstein, 55 (the words of Rabbi Eliezer, his teacher). See also: Abrahams, Pharisaism, 19.

26 Baruch J. Schwartz, T°rat ha-qedushah: iyyunim ba-ḥuqqah ha-k°hanit she-ba-T°rah [The holiness legislation: studies in the Priestly Code] (Jerusalem, 1999), 323: “The repetition of the formula ‘I am the Lord’ … indicates … that [the author] does not see the precepts between Man and his fellow as an independent category but rather as precepts between Man and God”; Martin Buber, Darko shel Mikra: ʻiyunim bi-defuse-signon ba-Tanakh [The way of Scripture: studies in the Hebrew Bible’s stylistic patterns] (Jerusalem, 1978), 104: “What we have here is not a moral command but a faith-related command. … Inasmuch as human beings are Mine, I command you in this matter.” For an opposite formulation, see Flusser, ʻAśeret ha-dibberot, 178: “We may assume that according to this anthropocentric approach … the first rule, which is love of God, is seen as included in the overall rule of love for one’s fellow.” Such a reading is common in Kabbalah and Hasidism. See, e.g., Haim Vital, Liqquṭei Torah nevi’im u-ketuvim, Qedoshim (Tel Aviv, 1972/3), 190 (in the name of R. Isaac Luria); Toledot Ya’akov Yosef, Qedoshim (Medzhybozh, 1816/7, 73a); Qedushat Levi ha-shalem, II (Jerusalem, 1957/8), 414; Sefat Emet, Korach, 5656.

27 So too the early-fourth century church father Lactantius: “The very same thing you granted to Man is granted to God, because Man is God’s image.” See: Lactantius, “Divine Institutes” 6.10, in The Divine Institutes: Books I–VII, Trans., Mary Francis McDonald (Washington, DC, 1964), 417. See also Abrahams, Pharisaism, 18, 20.

It is possible that this is how Rabbi Tanhuma interpreted Rabbi Akiva’s words. See Genesis Rabbah 24:5, ed. Theodor and Albeck, 237: “Rabbi Akiva said: ‘Love your neighbor as yourself’ is the greater rule; lest you say ‘since I have been debased, let my fellow be debased.’ Rabbi Tanhum said: If you have done so, know whom you are debasing: ‘In God’s image made He him.’” It is unclear whether this is an interpretation of or addition to Rabbi Akiva’s statement. It could even be a contrary position, similarly to the disagreement between Rabbi Akiva and Ben Azzai (above, Footnote n. 22): Rabbi Akiva stresses the human and social aspect, “like you”: because I have been debased, may my fellow also be debased; whereas Rabbi Tanhuma stresses the religious aspect: it is God who is debased.

28 See, e.g., Ibn Ezra, Nahmanides, and Abravanel (below, Footnote nn. 32, 34); David Kimhi on Isa. 5:12; Joseph Albo, Sefer ha-Iqqarim, 3:26.

29 James L. Kugel, The Bible as It Was (Cambridge, MA, 1997), 381.

30 See Eduard Nielsen, The Ten Commandments in New Perspective: A Traditio-Historical Approach, trans. David J. Bourke (Naperville, IL, 1968), 34. This idea was first proposed by Rabbi Joseph ben David of Saragossa, a student of Rabbi Nissim of Gerona, in his commentary on the Torah, ed. Feldman (Jerusalem, 1973, 171); and, after him, Moshe ben Simeon of Frankfurt (eighteenth century) in his commentary on the Mekhilta (below, Footnote n. 49), Zeh yenaḥamenu (Amsterdam, 1712, 48b), and nineteenth–century commentators on the midrash – R. Joseph Zundel and Rabbi Zev Wolf Einhorn, on Song Rabbah 5:12. See also: Edward L. Greenstein, “The Rhetoric of the Ten Commandments,” in The Decalogue in Jewish and Christian Tradition, Henning Graf Reventlow and Yair Hoffman, eds., (New York, 2011), 6, Footnote n. 22. A hint to this effect is found in the Mekhilta (below, Footnote n. 46), which compares the Tablets of the Law to hands, based on the verse “His hands are rods of gold, studded with beryl” (Song of Songs 5:14). See also: Numbers Rabbah 13:15; Song Rabbah 5:14; Tanḥuma, Eqev, 9.

31 Moshe Weinfeld, ʻAśeret ha-dibberot u-qeriʼat shema’: gilguleihen shel haṣharot emunah (Tel Aviv, 2001), 39.

32 Pesiqta rabbati 21, MS Parma 3122, ed. Ish Shalom, 99: “Adrianus (may his bones be ground) asked Rabbi Joshua ben Hananiah. He said to him: … The first ten [sic!] precepts that the Holy [One blessed be He] gave, His name is found in them. … But the latter five precepts … His name is not found in them”; Abraham Ibn Ezra, short commentary on Exodus 20:1: “Therefore, the [divine] name is mentioned in these five precepts (whereas there is no [divine] name in the other five), because these five are between Man and the Creator”; Abravanel on Exodus 20 (eighth question) and Deut. 5:6; Weinfeld, ʻAśeret ha-dibberot, 86.

33 The second tablet contains precepts that are obligations of natural morality and based on the principle of reciprocity, so they require no rationale. By contrast, the precepts on the first tablet are religious and spiritual obligations, and therefore require explanation and persuasion. See Moshe Weinfeld, The Anchor Bible, Deuteronomy 1–11 (New York, 1991), 245; Greenstein, “The Rhetoric of the Ten Commandments,” 7.

34 Nahmanides on Ex. 20:13: “And here, [He] has mentioned the reward for some of the commandments, and not for others, such as in the second commandment ‘a zealous God,’ in the third ‘for [the Lord] will not clear,’ in the fifth ‘so that [your days] last long’; whereas in the others He did not mention a punishment or reward. And this is because the last five commandments are for the benefit of Man, and their reward accompanies them.”

35 Philo seems to have been influenced by the common distinction between “divine law” and “human law” that emerged from classical Greek philosophy and literature, going back to the pre-Socratics, and later in the Stoa. See: Christine Elizabeth Hayes, What’s Divine about Divine Law? Early Perspectives (Princeton, 2015), 5556 (See also her reference to Martens, inn. 3); E. E. Halevi, ʻErkhei ha-aggadah ṿeha-halakhah le-or meqorot yevaniyim ṿe-laṭiniyim [The principles of aggadah and halakhah in light of Greek and Latin sources], I (Tel Aviv, 1979), 21011 and Footnote n. 2. A similar distinction exists in Roman law. See above, Footnote n. 6.

36 Philo, “De Decalogo” #50, in Philo VII, trans. F. H. Colson (LCL, 1984), 31.

37 Footnote Ibid., #106, 61. See: Yehoshua Amir, “Aśeret ha-dibberot al-pi Filon me-aleksandria,” in Segal, ʻAśeret ha-dibberot, 122; Flusser, “Aseret ha-dibberot,” 180; Moshe Greenberg, “The Decalogue Tradition Critically Examined,” in Studies in the Bible and Jewish Thought (Philadelphia, 1995), 300.

38 Philo, De Decalogo, #154; Footnote ibid., #19. See also: Suzanne Daniel-Nataf, introduction to De Decalogo, in Philo, Ketavim [Writings] II (Jerusalem, 1991), 185–86 [Hebrew]; Harry Austryn Wolfson, Philo; Foundations of Religious Philosophy in Judaism, Christianity, and Islam II (Cambridge, MA, 1968 [1947], 181–82, 201–02; See also: Footnote ibid., I, 128; II, 304–05. Regarding the talmudic sages’ position on this matter, see Efraim Elimelech Urbach, The Sages, their Concepts and Beliefs, trans. Israel Abrahams (Jerusalem, 1975), 844–47.

39 Philo, De Specialibus Legibus II, #63. See also Wolfson, Philo, II: 395.

40 For a discussion of Philo’s possible influence on Paul’s attitude towards the Ten Commandments, see: Gottfried Nebe, “The Decalogue in Paul, Especially in His Letter to the Romans,” in The Decalogue in Jewish and Christian Tradition, 58–60. For other parallels between Philo’s and Paul’s interpretations of the Ten Commandments, see Footnote ibid., 64–65.

41 Romans 13:8–10. See, similarly, Mark 10:19; Matthew 5: 21, 27, 43. The idea of emphasizing the precepts between man and his fellow (the second tablet) as the main part of the Torah comes from Jesus, and he repeats it in various contexts. See: Robert M. Grant, “The Decalogue in Early Christianity,” The Harvard Theological Review 40 (1947), 24, 6; below, Footnote note 50 (Didache).

42 Flusser, “Aseret ha-dibberot,” 169–70; Nebe, “The Decalogue in Paul,” 58, 80–83. According to Nebe, Footnote ibid., 81, it is possible that “all other precepts” refers to the first tablet, and “therefore love is the fulfillment of the entire Torah.”

If the idea of the division of the commandments between the two tablets is not stated outright in Romans, though it could be inferred from the text, it does appear, explicitly and systematically, in Augustine. See Appendix C.

43 J Sheqalim 6:2 [49d] (ed. Academy of the Hebrew Language), 625; J Sotah 8:1 [22d], 940. See also Exodus Rabbah 47:6 (according to Jerusalem, NLI, MS ~24 5997): “[This] teaches that the first and latter [commandments] were [different] <the same>. How were the Ten Commandments arranged? Five on one tablet and five on [the other] tablet, according to Rabbi Judah. Rabbi Nehemiah says: Ten on one tablet and ten on [the other] tablet, as is stated ‘And when Moses descended from the mountain’ this were written” (this is mistaken citation, and it probably should be: “And Moses [turned and] descended from the mountain, … on this side and on that side they were written” [Ex. 32:15]).

44 In addition to Rabbi Hananiah ben Gamaliel, Rabbi Judah also holds this position. See Exodus Rabbah 47:6 (previous note).

45 The minority view appears as the consensus position in Mekhilta de-Rabbi Yishmael (next note). This was also Philo’s position (above, Footnote n. 36): “He divided the ten into two sets of five each which He engraved on two tables.” See also Josephus, Antiquities, III 6.8 (§138): “Within this ark he deposited the two tables, whereon had been recorded the ten commandments, five on each of them, and two and a half on either face” (trans. Thackeray, LCL, vol. 4).

46 Mekhilta de-Rabbi Yishmael, ba-Ḥodesh 8, trans. Lauterbach, 731.

47 It is possible that Rabbi Hananiah’s homily is in agreement with Sages’ idea that the two tablets were identical (“twins of a gazelle,” Song 4:5). See Tamar Kadari, “‘Tokho raṣuf ahavah’: al ha-Torah ke-ra’ayah bi-derashot tanna’im le-shir ha-shirim” [“‘Within It Was Decked With Love’: The Torah as the Bride in Tannaitic Exegesis on Song of Songs], Tarbiẓ 71(3/4) (2002): 401. The word כנגד, keneged” [which Lauterbach translated as “opposite it”] can be applied physically to the writing on the tablets, meaning the sixth commandment was written on the same line as and opposite the first commandment, the seventh opposite the second, and so on. But it can also be interpreted symbolically as referring to the content of the commandments, meaning that they correspond, matching and complementing each other. This is the interpretation of the Mekhilta, Pesiqta Rabbati 21 (Shklov 1806), 34c: “The five first Commandments opposite (keneged) the last [five].” Later it states that the Ten Commandments were corresponding to (keneged) the ten utterances with which the world was created, or corresponding to (keneged) the Ten Plagues. For the two senses of keneged, see: Shlomo Naeh, “‘Ezer ke-negdo,’ ‘keneged ha-masḥitim’” [Forgotten Meanings and a Lost Proverb], Leshonenu 59(2) (1996): 108–11 (which shows how keneged can be both a positional and a comparative preposition).

48 Yair Lorberbaum, “‘Al reṣaḥ, ‘onesh mavet, ve-ha-adam be-ṣelem Elohim be-sifrut Ḥazal” [On murder, capital punishment, and man’s creation in the divine image in talmudic literature], Pelilim 7 (1998), 239–42, 253–56. Lorberbaum (241) proposes that the Mekhilta’s homily is based on Rabbi Akiva’s midrash (Genesis Rabbah 34:9, ed. Theodor-Albeck, 326): “Anyone who spills blood is considered to have reduced the [divine] image. Why? Because ‘He who spills the blood of man, etc. [by man shall his blood be spilled, because in His image did God make man]’ (Gen. 9:6).” The identification of human blood and the divine image “blurs the semantic barrier between God and Man, thus blurring the distinction between precepts between Man and God and precepts between Man and his fellow.” See also: Yair Lorberbaum, Ṣelem Elohim: halakhah ve-aggadah [The divine image: halakhah and aggadah] (Jerusalem and Tel Aviv, 2004), 301–02, 354–58. Rabbi Akiva’s and the Mekhilta’s homilies are compatible with Rabbi Akiva’s rejection of any distinction between types of precepts. See above, at Footnote nn. 12 and 17.

49 Moshe Greenberg, “Mesoret ‘aśeret ha-dibberot bi-re’i ha-biqqoret” [The Ten Commandments tradition in light of criticism], in: ʻAśeret ha-dibberot bi-reʼi ha-dorot, 90: “The homily … hints at the reciprocal relationship between the precepts between Man and God and those between Man and his fellow. And the switch of the starting point of each statement from one set of five to the other one, emphasizes the equal value of the two sets”; Zeh yenaḥamenu (above, Footnote n. 30): “That these were opposite those, so one who violates [a precept] on this side is deemed to have violated [a precept] n the other side.”

50 Urbach notes an early midrashic source that includes the “double love” homily, followed by a detailed list of the second five commandments with regard to the obligation to love one’s fellow. This would seem to support the idea of separation. See: Sefer Pitron Torah [The book of the solution of the Torah], ed. Efraim Elimelech Urbach (Jerusalem, 1978), 7980 (Sefer Pitron Torah, ed. Malachi Beit-Arié, facsimile of MS Heb. 40 5767, 63–64): “As the sages said: all the precepts in the Torah depend on two verses: the first, ‘And you shall love the Lord your God’ (Deut. 6:5); the second, ‘And you shall love your fellow as yourself’ (Lev. 19:18); that two hundred forty-eight positive precepts all depend on ‘and you shall love the Lord your God, etc.’…. and the negative precepts depend on ‘And you shall love your fellow as yourself.’…’And you shall love your fellow as yourself’ is the epitome of all the negative precepts stated in regards to a human being. … Thou shalt not take the Lord’s name in vain and thou shalt not murder and thou shalt not commit adultery, and thou shalt not steal and thou shalt not bear [false witness] and thou shalt not covet.” Urbach (Pitron Torah, Footnote ibid) conjectures that “the statement comes from an early source.” But it does not appear to come from the talmudic sages, as Urbach himself says elsewhere. See Efraim Elimelech Urbach, “Ma’amadam shel ‘aśeret ha-dibberot ba-’avodah u-va-tefillah” [The status of the Ten Commandments in the Temple service and in prayer], in ʻAśeret ha-dibberot bi-reʼi ha-dorot, 136 (“a parallel midrash, though from a later source”). See also above, Footnote n. 23.

The source may be the Didache, a Jewish-Christian text. See Flusser, Yahadut u-meqorot ha-naṣrut [Judaism and the sources of Christianity] (Tel Aviv, 1969), 235–36, 244–47. The regnant position dates the text to the second half of the first century CE. See Huub van de Sandt and David Flusser, The Didache: Its Jewish Sources and its Place in Early Judaism and Christianity (Minneapolis: Fortress Press, 2002), 4849. Indeed, in the Didache there is a parallel to the homily in Pitron Torah: “There are two ways, one of life and one of death… The way of life, then, is this: First, you shall love God who made you; second, your neighbour as yourself; and all things whatsoever you would should not occur to you, do not also do to another.” See The Didache, 1:1–2, ed. Kurt Niederwimmer (Minneapolis, 1988), 5977. Subsequent to the “double love” homily, a detailed list of the commandments on the second tablet appears later in the Didache (2:2–7). See Sandt and Flusser, The Didache, 56; and, in greater detail, Huub van de Sandt, “Essentials of Ethics in Matthew and the Didache: A Comparison at a Conceptual and Practical Level,” in Early Christian Ethics in Interaction with Jewish and Greco-Roman Contexts, eds. Jan Willem van Henten and Joseph Verheyden (Leiden, 2013), 245–51. However, as we saw above (around Footnote n. 41), such a model existed in early Christianity. Hence it stands to reason that the passage in question is Christian and not by the talmudic sages. See Philip S. Alexander, “Jesus and the Golden Rule,” in Hillel and Jesus: Comparisons of Two Major Religious Leaders, eds. James H. Charlesworth and Loren L. Johns (Minneapolis: Fortress Press, 1997), 162–64. Some hold that the passage is a synthesis of Jewish and Christian sources. See Grant, “The Decalogue in Early Christianity,” 9. This seems likely, because the text was influenced by various sources – Jewish, sectarian, and Christian (see Sandt and Flusser, The Didache, 56–57, 59, and 70–80).

51 The harmonization is also expressed in the parallel that the talmudic sages drew between the first two sections of the Shema and the Ten Commandments. See J Berakhot 1:4 [3c] (p. 9). This parallel effectively paces all the precepts under the joint title of the two sections: the precept to love God. See: Abrahams, Pharisaism, 28; Aharon Oppenheimer, “Removing the Decalogue from the Shema and Phylacteries: the Historical Implications,” in The Decalogue in Jewish and Christian Tradition, 99–100. See also Urbach, “‘Aśeret ha-dibberot,” 133. He asserts that the Jewish-Christian debate about the recitation of the Ten Commandments during prayer stemmed from the early Christian emphasis on the interpersonal precepts. See above, at Footnote nn. 41 and 42. This is why, the talmudic sages dropped the recitation of the Ten Commandments from the liturgy and included them under the rubric of the precept to love God, including those that clearly apply among human beings.

52 On taxonomy as a phenomenon from a philosophical perspective, see M. Härlin and P. Sundberg, “Taxonomy and Philosophy of Names,” Biology and Philosophy 13 (1998): 233–35.

53 Emily Sherwin, “Legal Taxonomy,” Legal Theory 15 (2009): 2554.

54 Formal taxonomy has another goal: mapping law in order to transfer information from one legal system to another. Such a method is especially common in comparative law. See Ugo Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems,” The American Journal of Comparative Law 45 (1997): 6.

55 Dualism has many types and applies to many domains. On theistic dualism (the Creator’s relationship with Creation), see Leroy Rouner, “Dualism,” The Westminster Dictionary of Christian Theology (London, 2002), 166. On dualism in the context of the psychophysical problem (the relationship between mind and body), see Howard Robinson, “Dualism,” The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, available at:; W. D. Hart, “Dualism,” in A Companion to the Philosophy of Mind, ed. Samuel Guttenplan (Oxford, 1996), 265–68.

56 The complementary approach describes, in very domains of knowledge, complementary relations between causes that are different or opposing in quantum physics, in the wake of Niels Bohr, see: Simon Saunders, “Complementarity and Scientific Rationality,” Foundations of Physics 35 (2005): 417–47; Niels Bohr, “Causality and Complementarity: Supplementary Papers,” in Philosophical Writings of Niels Bohr, eds. Jan Faye and Henry J. Folse, vol. IV (Woodbridge, 1998), 164–69. In the social sciences (complementarianism: men and women as complementary sexes), see, e.g., Prudence Allen, “Man-Woman Complementarity: the Catholic Inspiration,” Logos 9 (2006): 87105 (the Catholic stance); online at In tort law, see Izhak Englard, “The Idea of Complementarity as a Philosophical Basis for Pluralism in Tort Law,” in Philosophical Foundations of Tort Law, ed. David G. Owen (Oxford, 1995), 183–95.

57 In the talmudic corpus, the dominant position about the mind-body problem is monistic and harmonizing. See Julius Guttmann, The Philosophy of Judaism: The History of Jewish Philosophy from Biblical Times to Franz Rosenzweig, trans. David W. Silverman (Northvale, NJ, 1988), 5152; Urbach, The Sages [Heb.], 190–98. See also Nissan Rubin, Qeṣ ha-ḥayyim: ṭiqsei qevurah bimqorot ḥazal (Tel Aviv, 1997), 5464; Lorberbaum, Ṣelem Elohim, 192–93, Footnote n. 81.

58 On the connection between the normative separation and the overall confrontation between dualism and harmonism, see my “Commandments between Man and God and between Man and His Fellow – Between Separation and Completion: A Medieval Debate” (unpublished).

59 Akibah Ernst Simon, Ha’im od yehudim anaḥnu? (Jerusalem, 1982). For a recent discussion of Simon’s stance, see Avi Sagi, “Ha’im od yehudim anaḥnu,” in Hamishim le-arba’im ushemoneh, ed. Adi Ophir (Jerusalem; Tel Aviv, 1999), 7987.

60 For an extensive discussion, see Amihai Radzyner, “Hamishpaṭ ha’ivri bein ‘le’umi’ le-’dati’: ha-dilema shel ha-tenu’ah ha-datit-le’umit,” Meḥqerei Mishpat 26 (2010): 110–18.

61 Yehuda Leib Hakohen Fishman, “Ha-ṣiyonut ha-datit ṿe-hitpatḥutah,” Ezkerah 5 (1936): 121. For a critique of the “catholic” stance of religious Zionism, see Sagi, “Ha’im od yehudim anaḥnu.” See also Avi Sagi, “Ṣiyonut datit: bein segirut liftiḥut,” in Yahadut pnim va-ḥuṣ: di’alog bein olamot, eds. A. Sagi, D. Schwartz and Y. Stern (Jerusalem, 2000), 124.

62 See Servius, In Vergili Georgica, 1.269. For different senses of this distinction, see: Leon ter Beek, Divine Law and the Penalty of Sacer Esto in Early Rome,” in Law and Religion in the Roman Republic, ed. Olga Tellegen-Couperus (Leiden, 2012), 1112; Watson, The State, Law, and Religion (see above Footnote n. 6), 94, Footnote n. 1. See also Watson, Footnote ibid., 86.

For a parallel distinction between the objects of religious law (ius divinum) and human/secular law (ius humanum), see Gaius, Institutiones 2.2–2.8. And at length, James Rives, “Control of the Sacred in Roman Law,” in Law and Religion in the Roman Republic, ed. O. E. Tellegen-Couperus (Leiden and Boston: Brill, 2012), 166–68; Watson, The State, Law, and Religion, 55–57.

63 Watson, The State, Law, and Religion, 73. See also Footnote ibid.., 1. On the secular character, see further Clifford Ando, “Religion and ius publicum,” in Religion and Law in Classical and Christian Rome, eds. Clifford Ando and Jorg Rupke (Stuttgart, 2006), 129, 132–40. Even though law has a secular character, it bears the clear indirect imprint of religious social practices. For example, the source of the civil contract (stipulatio) is religious (votum). See Watson, The State, Law, and Religion, 39–43. Similarly, the religious oath also is employed in the private and civil realm (Footnote ibid., 44–45 and 78–79).

64 See T. J. Cornell, The Beginnings of Rome (London and New York, 1995), 242–71.

65 Thus (according to Ulpian, Digestia, religious matters are part of public law, whereas civil law is part of private law. See Elizabeth DePalma Digeser, “Religion, Law and the Roman Polity: The Era of the Great Persecution,” in Religion and Law in Classical and Christian Rome, eds. Clifford Ando and Jorg Rupke (Stuttgart, 2006), 70.

66 Watson, The State, Law, and Religion, 78.

67 Sophie Lunn-Rockliffe, Ambrosiaster’s Political Theology (Oxford, 2007), 5456.

68 On the author’s identity and the historical and theological background of the work, see: Footnote ibid., 12–17, 33–50; Alexander Souter, The Earliest Latin Commentaries on the Epistles of St. Paul: A Study (Oxford, 1927), 3948.

69 Andrew S. Jacobs, “Papinian Commands One Thing, Our Paul Another”: Roman Christians and Jewish Law in the Collatio Legum Mosaicarum et Romanarum,” in Religion and Law in Classical and Christian Rome, eds. Clifford Ando and Jorg Rupke (Stuttgart, 2006), 9597.

70 Avot de-Rabbi Natan [The Fathers According to Rabbi Nathan], Recension A, chapter 16 (MS New York, JTS 25); trans. Judah Goldin (London, 1956), 86. For textual variants, see, at length: Louis Finkelstein, Mavo le-masekhtot Avot ve-Avot de-Rabi Natan [Introduction to Tractates Avot and Avot de-Rabbi Nathan] (New York, 1950), 4751; Menahem Kister Iyyunim be-Avot de-R. Natan: nusaḥ, arikhah u-farshanut [Studies in Avot de-Rabbi Nathan: text, redaction, and interpretation] (Jerusalem, 1998), 6970; H. G. Becker, Avot de-Rabbi Natan: Synoptische Edition beider Versionen (Tübingen, 2006), 170–71. The statement is attributed to Rabbi Akiva in all textual witnesses except the first printed edition (Venice, 1550). Finkelstein (Mavo, 49–50), holds that the first clause (“Yet it says … [created him]”) is Rabbi Akiva’s, but the end (“those who act/do not act like one of your people”) is not. According to the first clause, the fact that human beings are created in the divine image requires that we love everyone, including evildoers. But the second clause limits the love for one’s fellow to those who “act like one of Your people.” Given this contradiction, Finkelstein proposes that this is a hybrid text: Rabbi Akiva’s authentic homily in the first clause is followed by another, even though it “is not by Rabbi Akiva at all and is only an interpretation and addition to the main point of the baraita and the words of the first authority” (and see, phrased differently, Footnote ibid. 49, n. 88). It is possible that ideology (tolerance and universalism) is lurking in the background of Finkelstein’s proposal. See Jonathan Howard, “Ela ehov et kullam” [Rather, love everyone], Ma’agalim 8 (2013): 106–10. Kister (Iyyunim, 168), adopts Finkelstein’s hypothesis of a hybrid text: “These are two completely different things, and their linkage creates a meaningless statement.” However, his solution is just the opposite: the second clause is based on a common tannaitic homily (167), implying that it is Rabbi Akiva’s original homily; but the first clause is rare and likely a later and inauthentic supplement (Footnote ibid., 70 and n. 160; idem, “Bein ma’amarei yeshu la-midrash” [Jesus’s statements and the Midrash], Meḥqerei yerushalayim be-maḥshevet Yisrael II, (1981/2), 14, Footnote n. 27). Either way, the hybrid text thesis requires further study, based on Rabbi Simeon ben Eleazar’s dictum in Avot de-Rabbi Nathan, Recension A, chapter 16, and the parallel statement by Rabbi Hananiah the Temple prefect (Avot de-Rabbi Nathan, Recension B, ch. 26, MS Parma 2785 [MS Schechter, 53]: “That on which the entire world depends on, a tradition (oath) was said about it from Mount Sinai: If [you] hate your fellow whose deeds are as bad as your deeds – I am the Lord, a judge who will punish that person; and if you love your fellow whose deeds are proper, like your deeds – I am the Lord, merciful and who has mercy upon you.” For this parallel, see: Flusser, “Judaism and the Christian Message,” 114–15; Kister, Iyyunim, 167–168. In this homily, Rabbi Hananiah combines “I am the Lord” (as an oath) with the limitation of the precept to love to those who behave appropriately. However, “I am the Lord” in this version does not refer to the Creator of all humanity, but to the God who commands and judges. In any event, here the combination seems to be original. Kister goes on to reject this consideration (Footnote ibid., 168 and 70 n. 159), but without presenting a decisive argument.

71 It is possible that the formulation of the limitation – “if he acts as thy people do” – hints that the homily draws on the parallel between the command to love one’s fellow and the adjacent precepts in the Torah: “You shall not hate your brother in your heart; you shall surely reprove your fellow and bear no sin for him. You shall not avenge nor bear a grudge against the members of your people…” (Lev. 19:16–17). See Kister, “Ma’amarei yeshu,” 41, Footnote n. 27; Kister, Iyyunim, 167. These precepts do not protect everyone, but only members of one’s close circle. See Sifra, Qedoshim 2:4, ed. Weiss, 89b: “You may take revenge and hold a grudge against others” (meaning non-Jews; see David Henshke, “Ḥametz shel aḥerim” [The leaven of others], Te’udah 1617 (2001): 164–66); Aaron Shemesh, “Ha-mavdil bein bnei ‘or livnei ḥoshekh bein yisra’el la-’amim” [Who distinguishes between the sons of light and the sons of darkness, between Israel and the nations], in Atarah le-ḥayyim, eds. D. Boyarin et. al. (Jerusalem, 2000), 211 and Footnote nn. 8, 9; Ruzer, “Ve-ahavta,” 365–67. For other and even contradictory readings of the set of social precepts, see Schwartz, Torat ha-qedushah, 317–23. Another approach sees the homily as based on an alternative vocalization of the verse: ra’akha “your evil person” instead of re’akha, “your fellow.” In other words, it is obligatory to love not only one’s partners in right religious and social conduct, but also those who behave badly. See: Herbert Basser, “Hed le-midrash qadum bi-vrit ha-ḥadashah” [An Echo of Early Midrash in the New Testament], Proceedings of the World Congress of Jewish Studies 11 (div. C vol. I) (1993): 124–26. This is implausible: First, because it is passed on a faulty reading of the text in a way not employed in the tannaitic literature; see Shlomo Naeh, “Ein em la-masoret o: ha’im darshu ha-tanna’im et ketiv hatorah shelo ki-qri’ato hamequbbelet?” [Did the Tannaim Interpret the Script of the Torah Differently from the Authorized Reading?” Tarbiẓ 61(3/4) (1992): 407–10. Second, if the homily was based on an alternative reading of the verse, the homilist should have made that plain. The explanation proposed here is based on interpreting the words re’akha kamokha [your fellow like you] – a person who is like you; or on “I the Lord – made him.”

72 Compare Rabbi Akiva’s statement in M Avot 3:14: “Beloved is man, because he is created in the image [of God]. … Beloved are Israel, because they are called children of God” with Jesus’s homily (Matt. 5:45): “And you shall love your fellow as yourself…so that you shall be children to your father in heaven.”

73 With regard to the homily in the first clause, see Avot de-Rabbi Nathan, cited above at Footnote n. 70: “And hate (the sectarians)! … And so too David used to say ‘O Lord, I hate those who hate You’” (Ps. 139:21; parallels: T Shabbat 13:5, ed. Lieberman, 58–59: “Sectarian books … they and references to them should be blotted out; and it is in reference to them that the verse said: ‘O Lord, I hate those who hate You’”). Similarly, Avot de-Rabbi Nathan, Recension A, ch. 9, MS New York: “Lest a person keep company with a bad person or an evil person… [as is written ‘Should you help the wicked and love those who hate the Lord?’” (2 Chron. 19:2). The same follows from the Gaon of Vilna’s emendation of the homily: “Yet He says ‘And you shall love your fellow as yourself I am the Lord.’ Why? ‘Because I created him,’ and if he performs acts of justice and righteousness you shall love him, and if not, you shall not love him.

74 Matt. 5:43–48.

75 Ruzer, “Ve-ahavta,” 355, Footnote n. 13. Flusser believes that this is a Sadducean homily: “it is extremely difficult to assume” that it is Pharisaic. See David Flusser, Yahadut u-meqorot ha-naṣrut (Footnote ibid. Footnote n. 50), 227–28.

76 Kister, “Ma’amarei yeshu,” 13–14. The Christian position also adopts an attitude of distancing oneself from and hatred of sinners. The integration of hatred and love creates a complex paradox. See: Liu Qingping, “On a Paradox of Christian Love,” Journal of Religious Ethics 35 (2007): 681–94.

77 The categorical distinction between the two contradicts Rabbi Akiva’s position and fits in with a widespread attitude in the Second Temple period and in later of early Christianity. See above, Footnote n. 23. See also Flusser, “‘Aśeret ha-dibberot,” near Footnote n. 28.

78 Many date Paul’s Epistle to the Romans to 55–58 CE (although a minority opinion, held by Gerd Lüdemann, holds for 51 CE). See F. F. Bruce, The Epistle of Paul to the Romans: An Introduction and Commentary (Leicester, 1983), 12; James D. G. Dunn, Romans 9–16 (Dallas, 1988), XLIIIXLIV. Augustine’s homily is about 350 years later, and was apparently written after 412. See Augustine through the Ages: An Encyclopedia, ed. Allan D. Fitzgerald et al. (Grand Rapids, 1999), 633–40, 774–89.

79 John E. Rotelle, ed., Sermons on the Old Testament (1–19), The Works of Saint Augustine, Vol. III/1, Sermon 9.16 (Brooklyn, 1990), 273. For a discussion of the idea of the division of the Ten Commandments between the two tablets in Augustine’s thought, see also Wilhelm Geerlings, “The Decalogue in Augustine’s Theology,” in The Decalogue in Jewish and Christian Tradition, above Footnote n. 30, 112.

80 John E. Rotelle, ed., Sermons on the Saints (273–305A), Vol. III/8, The Works of Saint Augustine, Sermon 278.6. (New York, 1994), 53; Geerlings, “The Decalogue,” 117; G. B. Sarfatti, “Luḥot ha-berit ke-semel ha-yahadut” [The Tables of the Covenant as a Symbol of Judaism], Tarbiẓ 29 (1960): 388–89. Several other explanations for this division have been proposed. Some have suggested that there must be precisely three commandments referring to God, to match the Holy Trinity. See: Corpus Christianorum: Series Latina, ed. K. D. Daur (Turnhout, 1953), vol. 33, 103; R. H. Charles, The Decalogue: Being the Warburton Lectures (Edinburgh, 1923), 17, Footnote n. 1. According to Greenstein (“The Rhetoric of the Ten Commandments”), the division into three and seven commandments allows for a quantitative balance between the tablets, given that the first five commandments are significantly longer than the second five.

81 Luther followed Augustine in dividing the Ten Commandments into three and seven. See Henning Graf Reventlow, “The Ten Commandments in Luther’s Catechisms,” in The Decalogue in Jewish and Christian Tradition, above Footnote n. 30, 139–40. See also Laurence Vaux, A Catechisme Christian Doctrine (Manchester, 1583), 48 (at For a discussion of other ways of dividing the Ten Commandments in the Christian world, see: Jonathan Hall, “St. Augustine and the Decalogue,” 5–6, 9, at: ; Charles, The Decalogue, Footnote ibid.; Sarfatti, “Luḥot ha-berit,” 389, n. 123.

13 Christian Feasts and Administration of Roman Justice in Late Antiquity

1 General outline in A. Watson, The State, Law and Religion: Pagan Rome, Athens – London, 1992. For various perspectives on the relationship between law and religion in Rome, see the essays in C. Ando ,J. Rüpke (eds.), Religion and Law in Classical and Christian Rome, Stuttgart, 2006. A view of the Roman Republic is provided by the works collected in the recent volume: O. Tellegen-Couperus (ed.), Law and Religion in the Roman Republic, Leiden-Boston, 2012.

2 Hier. Ep. ad Galatas, 2,4, PL 24, c. 596. On these aspects, see A. Di Berardino, Cristianizzazione del tempo civico nel IV secolo, in B. Luiselli (ed.), Saggi di storia della cristianizzazione antica e altomedievale, Rome, 2006, p. 186 ss., to which we refer for some observations contained in this first paragraph.

3 See, among many others, K. L. Noethlichs, Revolution from the top? Orthodoxy and the persecution of heretics in imperial legislation from Constantine to Justinian, in C. Ando, J. Rüpke (eds.), Religion and Law in Classical and Christian Rome, Stuttgart, 2006, p. 118; J. Rüpke, Religion in Republican Rome. Rationalization and Ritual Change, Philadelphia, 2012, p. 94 ss.; Footnote Id., Rationalizing Religious Practices: the Pontifical Calendar and the Law, in O. Tellegen-Couperus (ed.), Law and Religion, cit., p. 85 ss.; G. Forsythe , Time in Roman Religion. One Thousand Years of Religious History, New York-London, 2012, p. 21 ss.; U. Agnati, Costantino e la scansione cristiana del tempo (Cod. Iust. III 12,2 e Cod. Th. II 8,1), in L’indagine e la rima. Scritti per Lorenzo Braccesi, I, Roma, 2013, p. 23 ss.; Footnote Id., Constantine’s Statutes on Sunday Rest. Social and Juridical Remarks, in Calumet-Intercultural Law and Humanities Review, II, 2015, p. 1 ss., with notes 1 and 2.

4 On the above, see in particular M. Bianchini, Cadenze liturgiche e calendario civile fra IV e V secolo. Alcune considerazioni, in Atti dell’Accademia Romanistica Costantiniana. Atti del VI Convegno internazionale, Perugia, 1986, now in M. Bianchini, Temi e tecniche della legislazione tardoimperiale, Torino, 2008, p. 234, with an indication of other literature; D. Baudy, Prohibitions of Religion in Antiquity: Setting the Course of Europe’s Religious History, in C. Ando, J. Rüpke (eds.), Religion and Law, cit., p. 110 s.; M. R. Salzman, On Roman Time. The Codex-Calendar of 354 and the Rythms of Urban Life in Late Antiquity, Berkeley, Los Angeles, Oxford, 1990, p. 235 ss. who stresses that, while in the mid-fourth century “Pagan cult reigned virtually unchallenged,” in the second half of the century Christian emperors attempted “to disassociated paganism from the culture and civic life of the empire.”

5 For this profile, we refer particularly to E. Franciosi, Dies festos nullis volumus voluptatibus occupari. Spettacoli e feste cristiane nella legislazione postclassica e giustinianea, in F. Botta (ed.), Atti del Convegno “Il diritto giustinianeo fra tradizione classica e innovazione”, Torino, 2003, p. 53 ss., and more recently A. Di Berardino, Cristianizzazione del tempo civico, cit., p. 187 s. which equally refers to the legislation abolishing spectacles during Christian feasts.

6 For example, John Chrysostom complained that, in Constantinople, churches were empty during spectacles while the people crowded into the circus: De Anna, sermo IV I, PG LIV, c. 660. Observations on the meaning of the prohibition of spectacula during Christian feasts in N. Spineto, De spectaculis: aspetto della polemica antipagana, in A. Saggioro (ed.), Diritto romano e identità cristiana. Definizioni storico-religiose e confronti interdisciplinari, Rome, 2005, p. 220 ss. On the problem of contested Roman festivals in the fourth century, see F. Graf, Roman Festivals in the Greek East. From the Early Empire to the Middle Byzantine Era, Cambridge, 2015, p. 128 ss.

7 In general, on Christian feasts, see A. Di Berardino, Tempo sociale pagano e cristiano nel IV secolo, in A. Saggioro (ed.), Diritto romano e identità cristiana, cit., p. 104 ss. The list of Christian feasts is provided in CTh. 15,5,5, the constitution of Theodosius II issued in 425 through which Epiphany and Christmas became known as feriae publicae. The constitution, along with the passages of CTh. 2,8,18 and CTh. 2,8,19, is also included in C.3,12,6 (see A. Scarcella, La legislazione di Leone I, Milan, 1997, p. 329, note 29).

8 For a general outline, see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 248 s.

9 Footnote Id., p. 235.

10 Important evidence is given by the Calendar of Polemius Silvius (448–49 AD), from Gaul, in which many pagan festivals and ludi are reported, probably the ones the author considered still useful and necessary and that at the time were commemorated together with the Christian holidays. See M. R. Salzman, On Roman Time, cit., p. 239 ss. For a different stance, see A. Di Berardino, Christian Liturgical Time and Torture (Cod. Theod. 9,35,4 and 5), in Augustinianum, 51,1, 2011, p. 192, who talks about a gradual substitution of the pagan time by the Christian one.

11 In this regard, A. Di Berardino, Tempo sociale pagano e cristiano nel IV secolo, cit., p. 98.

12 See O. Seeck. Regesten der Kaiser und Päpste für die Jahre 311 bis 476 n. Chr., Stuttgart, 1919, p. 62, according to which both laws refer to March 321; M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 235; S. Corcoran, The Empire of the Tetrarchs. Imperial Pronouncements and Government. A.D. 284–324, Oxford, 1996, p. 164, note 188; p. 312. J. Gothofredus, Codex Theodosianus cum perpetuis commentariis, Lipsiae, 1736, p. 137 which seems to exclude the two laws being a single measure, stating that they are two distinct constitutions addressed at different times to vicarius urbis Helpidius.

13 Soz. Hist. Eccl. 1,8. On this problem: A. Di Berardino, Christian Liturgical Time, cit., p. 195.

14 “Emperor Constantine Augustus to Helpidius. All judges and the people in the city should rest, and the work in all crafts should cease, on holy Sunday. But the people in the country may freely and lawfully apply themselves to cultivating their fields, so that the benefit conferred by the providence of God may not perish in an instant, since it often happens that grain can be sown in the furrows and vines planted in the trenches on no better day. Posted March 3, in the consulship of Crispus, for the second time, and Constantine, for the second time.” (English Translation in B. W. Frier et al. (eds.), The Codex of Justinian. A New Annotated Translation with Parallel Latin and Greek Text Based on a Translation by Justice Fred H. Blume, I, Cambridge, 2016, p. 346.

15 “Emperor Constantine Augustus to Helpidius. Just as it appears to Us most unseemly that the Day of the Sun (Sunday), which is celebrated on account of its own veneration, should be occupied with legal altercations and with noxious controversies of the litigation of contending parties, so it is pleasant and fitting that those acts which are especially desired shall be accomplished on that day. 1. Therefore all men shall have the right to emancipate and to manumit on this festive day, and the legal formalities thereof are not forbidden. Posted on the fifth day before the nones of July at Cagliari in the year of the second consulship of Crispus and Constantine Caesars.” (English translation in C. Pharr, The Theodosian Code and Novels and the Sirmondian Constitutions. A Translation with Commentary, Glossary and Bibliography, Princeton, 1952, p. 44.)

16 See J. Gothofredus, Codex Theodosianus, I, cit., p. 137, which summarizes the contents of CTh. 2,8,1 stating: “discrimen igitur facit Constantinus inter actus contentiosae et voluntariae Iurisdictionis.” Gothofredus notes that in the Visigothic Interpretatio there is a mistake. In fact, it mentions the possibility of gesta conficere when the emperor Constantine refers to the fulfillment of the acts of emancipation and manumission and not to the drafting of the related gesta certifying the successful emancipation.

17 On the possible meaning of this exception, see infra, in this paragraph.

18 See J. Gothofredus, Codex Theodosianus, I, cit., p. 137, according to which CTh. 2,8,1 was not the first of Constantine’s measures to ratify the prohibition to perform activities on Sundays – the previous one was therefore C. 3,12,2. An interesting perspective is that of K. M. Girardet, L’invention du dimanche: du jour du soleil au dimanche. Le dies Solis dans la législation et la politique de Constantin le Grand, in J. N. Guinot, F. Richard (eds.), Empire chrétien et Église aux IVe et Ve siècles. Integration ou “concordat”? Le témoignage du Code Théodosien, Paris, 2008, p. 346, according to which CTh. 2,8,1 is part of a rescript urged by Elpidius himself in order to obtain clarifications on C. 3,12,2, regarding the disparity of treatment between pagans and Christians. In fact, Christians were already authorized to proceed with manumissio in ecclesia. A different approach is presented in E. Moreno Resano, El dies Solis en la legislación constantiniana, in Antiquité Tardive, 17, 2009, p. 292, according to which these are fragments of the same imperial constitution.

19 On the use of the expression dies solis also among Christians and Christian emperors to indicate the day of the Lord see U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 10.

20 See L. De Giovanni, Costantino e il mondo pagano, Naples, 1977, p. 108, who, regarding CTh. 2,8,1, underlines how sun worship certainly influenced the emperor in some way and that the subject of assimilation to the sun recurs until the complete decline of Licinius (even after the disappearance of the pictures of the sun from coins, around the year 320). See also M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 235. On the importance of the cult of the sun for the Constantine dynasty, see the recent P.O. Cuneo, Anonymi Graeci oratio funebris in Constantinum II, Milan, 2012, p. 95 ss.

21 Among others, A. H. M. Jones, The Decline of the Ancient World, London, 1966, p. 41 s.; P. R. Coleman-Norton, Roman State and Christian Church, I, London, 1966, p. 83 s.; W. Rodorf, Sunday. The History of the Day of Rest and Worship in the Earliest Centuries of the Christian Church, London, 1968, p. 163 s.; A.S. Scarcella, La legislazione di Leone I, cit., p. 331, note 35, M. Wallraff, Constantine’s Devotion to the Sun after 324, in Studia Patristica, 34, 2001, p. 256 ss.; E. Moreno Resano, El dies Solis en la legislación constantiniana, cit., p. 289 ss.; Footnote Id., La ley constantiniana del dies solis en su context politico y legislativo, in Studia Historica, 27, 2009, p. 187 ss.; G. Forsythe, Time in Roman Religion, cit., p. 153. General outline in U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 10 ss.

22 See, among others, E. Moreno Resano, El dies Solis en la legislación constantiniana, cit., p. 303. On the ambiguity of the law see M. R. Salzman, On Roman Time, cit., p. 236.

23 See J. Gothofredus, Codex Theodosianus, I, cit., p. 137, who starts his comment by stating: “Dies solis, seu Dominico, est haec Constantini M. constitutio: cuius de eodem altera, verum prior tempore ad eundem Helpidium hoc ipso anno extat Cod. Iustinianeo lex 3. Hoc. Tit.

24 Also with reference to this different interpretation, the literature is very vast. We will limit ourselves to remembering B. Biondi, Il diritto romano cristiano, I, Milan, 1962, p. 162 ss.; P. Bonetti, Dies Solis e dies dominicus nella legislazione imperiale romano-cristiana, “Boll. Scuola di perfezionamento e di specializzazione in dir. del lavoro e della sicurezza sociale Univ. Trieste”, 9.25–27, 1963, p. 13 ss.; A. Di Berardino, La cristianizzazione del tempo nei secoli IV-V: la domenica, in Augustinianum, 47, 2002, p. 97 ss.; Footnote Id., Tempo sociale pagano e cristiano nel IV secolo, cit., p. 95 ss.; Footnote Id., Cristianizzazione del tempo civico nel IV secolo, cit., p. 179 ss.; K. M. Girardet, L’invention du dimanche: du jour du soleil au dimanche, cit., p. 341 ss.; P. Siniscalco, Il cammino di Cristo nell’Impero romano, Bari, 2009, p. 170; U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 4 ss.; G. Anello, The Rest and the West. The Legacy of Constantine’s Rules Concerning the Dies Dominica: Anthropological Notes, in Calumet-Intercultural Law and Humanities Review,1, 2015, p. 1 ss.; P. F. Bradshaw , M.E. Johnson, The Origins of Feasts, Fasts and Seasons in Early Christianity, London, 2011, p. 25 ss. J. Rüpke, The Roman Calendar from Numa to Constantine. Time, History and the Fasti, Chichester-Malden, 2011, p. 165: “Although the ruling is delivered in a religiously neutral form, there can be no doubt that its motivation is Christian. In the law’s wording, venerabilis refers to a cult practice that must comprehend more than an astrologically favourable disposition on the ‘day of sun’.”

25 This is the position expressed recently by U. Agnati, Constantine’s Statutes on Sunday Rest, cit., 4 ss.

26 See particularly U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 10 ss. The scholar also reminds us that in the writing of Christian authors, Sunday is often talked about using the expression die Solis: for example in Justin Martyr (1 Apol. LXVII 3); in Gregory of Tours (Hist. franc. III 15), while Tertullian uses dies dominicus when addressing Christians (De idol. XIV 7), and dies Solis when addressing pagans (Apol. XVI, 1). A collection of constitutions of Christian emperors in which the expression dies Solis is used in relation to the Christian Sunday can be found in A. Di Berardino, La cristianizzazione del tempo nei secoli IV-V: la domenica, cit., p. 101.

27 See U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 13 ss., with a collection of sources. On these aspects see also M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 236, which highlights the fact that the name Sol Iustitiae in relation to Christ dates back a long way (as far as Justin Martyr); and G. Forsythe, Time in Roman Religion, cit., p. 133 ss.

28 As testified by Eusebius, Vita Constantini III, XVI–XX: according to the writer, the most important result of the council was not the solution to the Arian question, rather the identification of the date for Easter. On these aspects see A. M. Rabello, L’observance de fêtes juives dans l’Empire romain, in H. Temporini , W. Haase (eds.), Aufstieg und Niedergang der Römischen Welt: Geschichte und Kultur Roms im Spiegel der Neuren Forschung, II, 21.2, Berlin-New York, 1984; A. M. Rabello, The Jews in the Roman Empire: Legal Problems, from Herod to Justinian, Aldershot, Burlington Usa, Singapore, Sydney, 2000, p. 1309 ss.; A. Di Berardino, L’imperatore Costantino e la celebrazione della Pasqua, in G. Bonamente , F. Fusco (eds.), Costantino il Grande, I, Macerata, 1992, p. 363 ss.; M. Delcogliano, The Promotion of the Constantinian Agenda in Eusebius of Caesarea’s on the Feast of Pascha, in S. Inowlocki , C. Zamagni, Reconsidering Eusebius. Collected Papers on Literary, Historical and Theological Issues, Leiden, 2011, p. 39 ss.; U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 20 ss. It should also be observed that until the second half of the fourth century, i.e. until the Council of Laodicea, from a liturgical point of view Sunday had still not taken on a precise physiognomy; some oriental communities continued, for example, to observe Saturday. The fact that Christians united on Sundays to pray and celebrate the Eucharist was more a custom than an obligation. On these aspects see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 236 ss., with further bibliographical indications. For a collection of texts from which it emerges how important it was to the ecclesiastical hierarchies that the believers attended the Sunday service, see U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 24 ss.

29 Eusebius, Vita Constantini IV,18,2. See U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 19.

30 According to U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 22, it is not a question of protecting rest in itself, rather for the purpose of the Christian cult and prayer. Different stance in J. Rüpke, The Roman Calendar from Numa to Constantine, cit., p. 166.

31 See again U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 23.

32 This is highlighted by J. Gothofredus, Codex Theodosianus, I, cit., p. 137.

33 On the work, and on the reliability of Eusebius, see in particular A. Cameron , S. Hall, Eusebius. Life of Constantine, Introduction, Translation and Commentary, Oxford, 1999, p. 6 ss., with a discussion of the problem of the citation of Constantine’s imperial legislation within the work.

34 It is not possible to establish whether the writer is referring here precisely to CTh. 2,8,1 and C. 3,12,2 or to other measures with similar content of which we are not aware. The testimony of Eusebius of Caesarea on this point is considered by many, including A. Di Berardino, La cristianizzazione del tempo nei secoli IV–V: la domenica, cit., p. 110 ss.; J. Rüpke, The Roman Calendar, cit., p. 165; U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 8. See also the observations of K. M. Girardet, L’invention du dimanche: du jour du soleil au dimanche, cit., p. 349 ss., according to which the words of Eusebius (with general indications without stopping to look at any concrete circumstances or exceptions) confirm the existence of a general rule of rest on the dies solis (to be interpreted in the Christian sense) prior to 321, presumably straight after the conversion of Constantine. CTh. 2,18,2 and C. 3,12,2 according to the scholar are some exceptions to a previously established rule. In the same regard see R. Soraci, Dies solis e dies Domini. Dai riti mistagogici al culto cristiano, in V. Aiello , L. Di Salvo (ed.), Salvatore Calderone (1915–2000). La personalità scientifica, Messina, 2010, p. 242 s.

35 Eusebius, Vita Constantini, IV, XVIII, 1.

37 Footnote Id. On this see K. L. Noethlichs, Revolution from the Top?, cit., p. 117.

38 A. Di Berardino, La cristianizzazione del tempo nei secoli IV–V: la domenica, cit., p. 111, notes also that in Eusebius, Vita Constantini IV, XVIII–XIX the writer also talks about the need to celebrate the dies solis by the army. See also Eusebius, Laudes Constantini IX,10, where the writer reminds us again that Constantine established that a day must be devoted to prayer: again here it talks about the first day of the week, the day of the Lord and the Savior.

39 It is very likely that the measures relating to Saturday issued by Constantine, and interpreted by Eusebius in the Christian sense, allowed Jews to abstain from work on Saturdays. On these aspects see S. G. Hall, Some Constantinian Documents in the Vita Constantini, in S. N. C. Lieu , D. Monserrat (eds.), Constantine, London, 1998, p. 101 ss. On the problem, see also U. Agnati, Constantine’s Statutes on Sunday Rest, cit., p. 18 ss. The point made by Eusebius is also confirmed by CTh. 16,8,20, Honorius’s and Theodosius’s constitution issued in 412 in which the emperors, within the context of a series of provisions in favor of Jews, confirm respect for Saturdays referring to various previous imperial constitutions which, unfortunately, have not been kept.

40 A critical stance on the interpretation of the bishop of Caesarea is shown, for example, by M. Wallraff, Constantine’ s Devotion to the Sun after 324, cit., p. 260, who considers the testimony to be unreliable and reproposes the idea that Constantine’s constitutions referred to the cult of the sun. See also E. Moreno Resano, El dies Solis en la legislación constantiniana, cit., p. 304.

41 Soz. Hist. Eccl. I,8, II.

42 J. Gothofredus, Codex Thedosianus, I, cit., p. 137, relates Sozomen’s passage with CTh. 2,8,1.

43 There are mentions of Sozomen’s testimony in A. Di Berardino, La cristianizzazione del tempo nei secoli IV e V: la domenica, cit., p. 111; Footnote Id., Tempo sociale e pagano, cit., p. 103.

44 See also John 20,19 and Justin Martyr in the Prima Apologia (LXVII, 8).

45 See E. Moreno Resano, El dies Solis en la legislación constantiniana, cit., p. 304. It is to be remembered that from the point of view of the councils, it was necessary to wait for the Council of Laodicea (the date of which is uncertain, but presumably in the second half of the fourth century) which establishes that believers were to honour Sundays by abstaining from work. On this point see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 237, with note 8.

46 As for the problem of contractual activities which should have been banned, E. Moreno Resano, El dies solis en la legislación constantiniana, cit., p. 296, considers that all commercial activities in urban centers were prohibited, whereas it was still possible to perform small activities in rural centers, also in light of CIL. III, 4121, an inscription that commemorates the institution, by the emperor Constantine, of a market (nundinae) to be held on the dies Solis at the bath complex of Aquae Iasae. According to scholars, the inscription dated back to shortly before the legislation passed in 321.

47 On this issue, see the thoughts put forward by U. Agnati, Costantino e la scansione cristiana del tempo, cit., p. 27 s., who goes over the ancient debate testified by Serv. Dan. ad Verg. Georg. I, 268. A different approach can be find in J. Rüpke, The Roman Calendar from Numa to Constantine, cit., p. 166.

48 As mentioned in the preamble, a further series of constitutions contains the provision of prohibiting the organization of all kinds of spectacles, which could interfere with the meaning of the religious feast. See, for example, CTh. 2,8,20 and CTh. 15,5,2. On these aspects of late imperial legislation, see abundantly E. Franciosi, Dies festos nullis volumus voluptatibus occupari, cit., p. 56 ss.; M. R. Salzman, On Roman Time, cit., p. 239 stresses that pagan festivals and holidays nevertheless continued to be celebrated.

49 For the different positions, see, among many, M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 248 and note 38; A. S. Scarcella, La legislazione di Leone I, cit., p. 331, note 35; E. Franciosi, Dies festos nullis volumus voluptatibus occupari, cit., p. 56 ss.

50 J. Gothofredus, Codex Theodosianus cum perpetuis commentariis, II, Lipsiae, 1737, p. 618.

51 Some extracts of this constitution can also be found in the title De feriis of the Codex Iustinianus, in C. 3,12,6, together with passages from another text, CTh. 2,8,19.

52 “CTh. 2,8,18. Emperors Gratian, Valentinian, and Theodosius Augustuses to Principius, Praetorian Praefect. On the Day of the Sun, which our ancestors rightly called the Lord’s Day, the prosecution of all litigation, court business, and suits, shall be entirely suspended. No person shall demand the payment of a public or a private debt, nor shall there be any cognizance of controversies before arbitrators, whether they have been requested in court or chosen voluntarily. 1. That person shall be adjudged not only infamous but also sacrilegious who turns aside from the inspiration and ritual of holy religion. Posted on the third day before the nones of November at Aquileia: November 3. Received on the eighth day before the kalends of December at Rome in the year of the consulship of Emperor Designate Honorius and of Evodius-November 24, 386.” (English translation in C. Pharr, The Theodosian Code, cit., p. 44).

53 A. Di Berardino, Tempo sociale pagano e cristiano, cit., p. 103 underlines that the expression dies solis is maintained here, specified through the words quem dominicum rite dixere maiores, hence understandable both for pagans and Christians.

54 CTh. 8,8,1. Regarding this constitution, following the comment of Gothofredus (J. Gothofredus, Codex Theodosianus, II, cit., p. 615 s.), a “sectorial” provision is to be highlighted, in the sense that the constitution only regards tax collection. An extremely significant aspect lies in the fact that here the emperor is still talking about the dies Solis defining it as qui dudum faustus habetur, hence showing the awareness of a previous discipline governing the theme of Sunday. Gothofredus also notes that the constitution only related to Christians.

55 On these texts see A. Di Berardino, Tempo sociale pagano e cristiano, cit., p.104 and recently F. Graf, Roman Festivals in the Greek East, cit., p. 105 ss. Some parts of CTh. 2,18,8, of CTh. 2,8,19 and of CTh. 15,5,5 converge in C. 3,12,6.

56 On CTh. 2,8,19 see M. R. Salzman, On Roman Time, cit., p. 236; F. Graf, Roman Festivals in the Greek East, cit., especially p. 114 ss.

57 Interpretation: “On the Day of the Sun (Sunday), which is deservedly called the Lord’s Day, lawsuits of all men shall cease, so that non-payment of either a private or public debt shall be exacted. There shall be no trials, either public or private. If any person should not observe this regulation, he shall be held guilty of sacrilege” (English translation in C. Pharr, The Theodosian Code, cit., p. 209).

58 J. Gothofredus, Codex Theodosianus, II, cit., p. 617.

59 D. 4,8,36 (Ulp. libr. 77 ad ed.). See K. H. Ziegler, Das private Schiedsgericht im antiken römische Recht, Munich, 1971, p. 187.

60 See infra, in this paragraph.

61 J. Gothofredus, Codex Theodosianus, II, cit., p. 617.

62 The stance of A. S. Scarcella, La legislazione di Leone I, cit., p. 329 does not appear to be convincing, according to which in the constitution in question, only moral reprobation was to be expressed against anyone violating the provisions relating to Sundays. Observations on the term sacrilegus in the constitution can be found in R. Bratož, Aquileia tra Teodosio e i Longobardi, in G. Cuscito (ed.), Aquileia dalle origini alla costituzione del ducato longobardo, Trieste, 2003, p. 483. On crimen sacrilegii in late antiquity, see in general O. Robinson, Blasphemy and Sacrilege in Roman Law, in The Irish Jurist, 8, 1973, especially p. 364 ss.; Footnote Id., The Criminal Law of Ancient Rome, London, 1995, p. 84; B. Santalucia, Diritto e processo penale nell’antica Roma, Milan, 1998, p. 290: in late antiquity it was conceived as a crime against Christian religion. Again, offenses against priests and places of worship are also included in this area, as is failure to comply with the legislative and administrative provisions of the emperor. In CTh. 16,2,25 and CTh. 16,5,8 the sacrilegium is referred to with reference to heretics: see C. Humfress, Orthodoxy and the Courts in Late Antiquity, Oxford, 2007, p. 236.

63 In CTh. 8,8,2 in relation to the prohibition to collect taxes from Christians, a sanction is envisaged. In fact, general reference is made to periculum.

64 It is also necessary to remember that in C. 3,12 De feriis there is a text, C. 3,12,6(7) which merges passages of CTh. 15,5,5 (constitution of Theodosius II dated 425) with CTh. 2,8,18 and CTh. 2,8,19; there is also a reference here to the need to observe Sundays, indicated by the expression dies Solis: C. 3,12,6(7), 4–5.

65 In that regard, E. Franciosi, Dies festos nullis volumus voluptatibus occupari, cit., p. 63 s.

66 “C. 3,12,9(11). Emperors Leo et Anthemius to Armasius, Praetorian Prefect. We do not want the festal days, the days dedicated to the Highest Majesty, to be taken up with pleasures or profaned by vexatious demands. 1. We decree therefore that the Holy Lord’s Day shall always be honored and venerated and excused from all executions of judgments. No summons shall disturb anyone; no exaction for providing surety shall be made; the clerks of the court shall be silent; let advocates retire from court; trials shall not be held on that day; the harsh voice of the auctioneer shall not be heard; litigants shall relax from controversies and have respite from their contracts; let adversaries come together without fear, let reciprocal penitence enter their minds; let pacts be made and settlements speak loudly. 2. But despite allowing this leisureliness on a day dedicated to God, We permit no one to give himself over to unseemly pleasures. The day shall not be open for the theater, the competition of the circus, or the tearful spectacle of wild beasts. If Our birthday or the day when We came to the throne should fall on Sunday, its celebration shall be deferred. 3. If anyone ever attends spectacles on that festal day, or if any clerk of a judge should believe that he can rashly violate the provisions of this law under the pretext of public or private business, he shall suffer the loss of his office and confiscation of his property. Given December 9, at Constantinople, in the consulship of Zeno and Marcianus (469).” (English translation in B. W. Frier et al. (eds.), The Codex of Justinian, I, cit., p. 645 s.).

67 The consideration is, again, by E. Franciosi, Dies festos nullis volumus voluptatibus occupari, cit., p. 66.

68 For the analysis of Leo’s text see A. S. Scarcella, La legislazione di Leone I, cit., 328 ss.

69 J. Gothofredus, Codex Theodosianus, II, cit., p. 617.

70 Pagans continued to appreciate their religious meaning, while Christians had a different approach; starting from 392 the emperors legislated against these spectacles on Sundays and then on other Christian holidays (see CTh. 2,8,20; 2,8,21; 2,8,23; 2,8,24). On the problem M. R. Salzman, On Roman Time, cit., p. 237 ss. For the reconstruction of the imperial legislation, starting from 392 AD., which prohibits the performance of spectacles on Christian feasts, see also E. Franciosi, Dies festos nullis volumus voluptatibus occupari, cit., p. 56 ss. It can perhaps be sustained that the prohibition of the celebration of spectacula was complementary to the suspension of judicial activities, and was used by the emperors, although in a gradual way, as a means of spreading Christianity within the context of a society that was still profoundly pagan.

71 In CTh. 2,8,18 but that clearly did not apply according to Leo and Anthemius, and, then, from Justinian’s perspective.

72 On these aspects of the text, see the considerations of A. S. Scarcella, La legislazione di Leone I, cit., p. 332. Of certain interest there is also a canon of Concilium Tarraconense dated 516 (can. IV, Mansi, col. 541 s.), prohibiting the clergy from passing judgment on Sundays, which was actually allowed on other days, with the exclusion of criminal proceedings. It is striking that conciliar sources actually include provisions of this kind following compliance with imperial legislation. This canon is mentioned in C. Ventrella Mancini, Tempo divino e identità religiosa. Culto rappresentanza simboli dalle origini all’VIII secolo, Turin, 2012, p. 188, note 63.

73 The law is also reported in Codex Iustinianus (C. 1,4,9), in the title De episcopali audientia. On precautionary imprisonment, see, among others, M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 250; A. Lovato, Il carcere nel diritto penale romano dai Severi a Giustiniano, Bari, 1994.

74 “CTh. 9,3,7. Emperors Honorius and Theodosius Augustuses to Caecilianus, Praetorian Prefect. (After other matters) On every Lord’s Day, judges shall inspect and question the accused persons who have been led forth from the confinement of a prison, lest human needs be denied these prisoners by corrupt prison guards. They shall cause food to be supplied to those prisoners who do not have it, since two or three libellae a day, or whatever the prison registrars estimate, are decreed, by the expenditure of which they shall provide sustenance for the poor. Prisoners must be conducted to the bath under trustworthy guard. Fines have been established, fixed at twenty pounds of gold for the judges and the same weight of gold for their office staffs, and for the high ranking members of the office staffs fines of three pounds of gold have been set, if they should scorn these very salutary statutes. For there shall not be lacking the laudable care of the bishops of the Christian religion which shall suggest this admonition for observance by the judge. Given on the eighth day before the kalends of February at Ravenna in the year of the eight consulship of Honorius Augustus and the third consulship of Theodosius Augustus – January 25, 409.” (English translation in C. Pharr, The Theodosian Code, cit., p. 229).

75 On the commmentarienses, recently, see L. Minieri, I commentarienses e la gestione del carcere in età tardoantica, in Teoria e storia del diritto privato, IV, 2011, p. 1 ss.

76 On the contents of the constitution, see in particular M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 251; A. Di Berardino, La cristianizzazione del tempo nei secoli IV-V: la domenica, cit., p. 105; A. Lovato, Il carcere nel diritto penale romano, cit., p. 209 ss.; C. Corbo, Paupertas. La legislazione tardoantica, Napoli, 2007, p. 173 s.; L. Minieri, I commentarienses, cit., p. 32.

77 See, for example, CTh. 9,3,1 = C. 9,4,1, of Constantine and CTh. 9,3,6 of Theodosius I. On the constitutions referred to herein, see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 250 as well as the observations of A. Lovato, Il carcere nel diritto penale romano, cit., p. 197 ss.

78 Some evaluations on this can be found in M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 251 s.

79 See also Sirm. 13, the further constitution of Honorius dated 419, through which the emperor agreed that bishops could enter the prisons.

80 See also M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 254, which reminds us that the lex shows the gradual growth of the power of bishops in the cities and states that the requirement of the presence of bishops here cannot easily be related to Justinian’s provisions of 529 contained in C. 9,4,6, where the presence of bishops in prisons is separated from the dies dominicus.

81 For a list of the imperial provisions that led to the progressive involvement of bishops in civil issues see J. Gothofredus, Codex Theodosianus cum perpetuis commentariis, III, Lipsiae, 1738, p. 45; Gothofredus describes Honorius’ laws as interventions against the cruelty of the times. On these problems, see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 252 ss.

82 Concilium Aurelianense V, a. 549, can. XX, in Mansi, IX, col. 134.

83 The affinity between can. XX of the Concilium Aurelianense and CTh. 9,3,7 is underlined by J. Gothofredus, Codex Theodosianus, III, cit., p. 46. On the relationship between the constitution of Honorius and the canon, see also C. Ventrella Mancini, Tempo divino e identità religiosa, cit., p. 188.

84 On these aspects, as well as the authors referred to in Section II, see also A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 191 ss., with literature cited in note 26. The testimony of Athan. Ep. ad Afros episcopos 2, PG 26, c. 1032 is significant. See C. Ventrella Mancini, Costantino e il dissenso: i concili e la sua visione sociale, in Rivista di Diritto romano, XIII, 2013, p. 7.

For an overview of the history of Easter, Lent and the Holy week, see P. F. Bradshaw, M. E. Johnson, The Origins of Feasts, Fasts and Seasons in Early Christianity, cit., p. 39 ss.

85 See the observations of A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 195 ss. The scholar remembers the recognition of a period of preparation for Easter that was progressively longer and a subsequent period. On Lent see also M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 239, note 18.

86 See M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 240, note 19, according to which granting amnesty for Easter could not be placed on the same plane as the constitutions that provided for the adaptation of the time scales of the judicial administration to Christian feasts. In fact, similar measures had already been issued to mark certain events or occasions. On the theme of Paschal amnesty, for example, G. Bassanelli Sommariva, Il giudicato penale e la sua esecuzione, in Atti dell’Accademia Romanistica Costantiniana. XI Convegno internazionale, Naples, 1996, p. 57; A. Di Berardino, Cristianizzazione del tempo civico, cit., p. 191 ss.

87 The Easter period, defined by the words diebus quindecim paschalibus (for which see C. 3,12,6(7)) is also taken into consideration in CTh. 2,8,21 of Theodosius, dated 392. These days were also used by the emperor to affect judicial and contractual activities, which seem to undergo a complete suspension: CTh. 2,8,21. Imppp. Valentinianus Theodosius et Arcadius Tatiano PP. Actus omnes seu publici seu privati diebus quindecim paschalibus sequestrentur. Dat. VI. K. iun. Constantinopoli Arcadio A. ii et Rufino conss. (a. 392). The version of the constitution accepted in Codex Iustinianus, C. 3,12,7(8) is also interesting: C. 3,12,7 (8). Imppp. Valentinianus Theodosius et Arcadius AAA. Tatiano pp. Actus omnes seu publici seu privati diebus quindecim paschalibus conquiescant. in his tamen emancipandi et manumittendi cuncti licentiam habeant, et super his acta non prohibeantur. Dat. VI. K. iun. Constantinopoli Arcadio A. ii et Rufino conss. (a. 392).

As can be noted, the correspondence with the text from the Codex Theodosianus is not perfect: Justinian’s version of the constitution also reproduces part of the Constantinian CTh. 2,8,1 dedicated to the dies Solis (which, as we remember, was not referred to by the Justinian compilers). In particular, there is a point in which Constantine allowed emancipations and manumissions to be performed, actions that were considered compatible with the Christian feast. Hence, this derogation was used, within the Code of Justinian, with reference to the fifteen Paschal days, through combining two constitutions that originally referred to different feasts.

88 “CTh. 9,35,4. Emperors Gratian, Valentinian, and Theodosius Augustuses to Albucianus, Vicar of Macedonia. During the forty days which anticipate the Paschal season by the auspicious beginning of cerimonies, all investigation of criminal cases through torture shall be prohibited. Given on the sixth day before the kalends of April at Thessalonica in the year of the fifth consulship of Gratian Augustus and the first consulship of Theodosius Augustus – March 27, 380.” (English translation in C. Pharr, The Theodosian Code, cit., p. 251).

89 On calculation of the forty days of Lent, see P. F. Bradshaw, M. E. Johnson, The Origins of Feasts, Fasts and Seasons in Early Christianity, cit., p. 109 ss.

90 For a general analysis of the contents of CTh. 9,35, see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 238 ss.

91 See J. Gothofredus, Codex Theodosianus, III, cit., p. 278 who underlines that the inclusion of the title De quaestionibus of the Codex Theodosianius in the constitution is the result of a misinterpretation by the compilers. Its placement in Justinian’s code is more correct, in C. 3,12 De feriis. Contra, C. Pharr, The Theodosian Code, cit., p. 251: the author translates omnis cognitio criminalium quaestionum as “all investigation of criminal cases through torture” (see note 88).

92 Interpretation: “During the days of Quadragesima, in reverence for religion, all criminal actions shall be in abeyance.” (English translation in C. Pharr, The Theodosian Code, cit., p. 251).

93 See M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 240. In relation to the prohibition of torture for certain parties (e.g. the honestiores), see, among others, P. Garnsey, Social Status and Legal Privilege in the Roman Empire, Oxford, 1970, p. 213 ss.

94 A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 202, stresses that it is not possible to know if it was applied also in the other provinces; for the year 380 probably it had not concrete application elsewhere.

95 In that regard, see the reflections of M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 290.

96 It was issued at the Forum Flaminii, a Roman municipality, after Theodosius’ first visit to Rome. See A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 215.

97 On these issues see in particular J. Gothofredus, Codex Theodosianus, III, cit., p. 277, as well as the observations of M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 291.

98 “CTh. 9,35,5. Emperors Valentinian, Theodosius, and Arcadius Augustuses to Tatianus, Praetorian Prefect. On the consecrated days of the Quadragesima, during which time the absolution of souls is awaited, there shall be no corporal punishment. Given on the eighth day before the ides of September at Forum Flaminii in the year of the consulship of Timasius and Promotus – September 6, 389.” (English translation in C. Pharr, The Theodosian Code, cit., p. 251).

99 99 De statuis, 13,137.

100 In that regard, see J. Gothofredus, Codex Theodosianus, III, cit., p. 278. It is to be noted that according to M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 241, note 21, this hypothesis is not very likely. Since an insurrection of Antiochia was testified in 387 and the law of Theodosius being dated to two years later, it would mean that some defendants, two years after the events, were still in prison and on trial. All of this cannot be excluded considering the fact that precise time limits for precautionary custody had not been established, as far as we are aware, until Justinian’s era. A different stance can be found in A. Berardino, Christian Liturgical Time and Torture, cit., p. 202 s.

101 That, according to A. Berardino, Christian Liturgical Time and Torture, cit., p. 203, seemed not to be known by Libanius or Chrysostom writing on the facts of Antiochia.

102 That is, when absolution of souls is required, there shall be no corporal punishments. See J. Gothofredus, Codex Theodosianus, III, cit., p. 278.

103 See CTh. 9,38,4; observations in A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 198.

104 On all this, see M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 242 s. The author actually excludes the constitution being only inspired by Christian mercy.

105 De statuis, 13,137. A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 198.

106 On this work by Ambrosius, see in particular E. Peretto, Testo biblico e la sua applicazione nel De obitu Valentiniani di Ambrogio, in Vichiana. Rassegna di studi filologici e storici, 18, 1989, p. 99 ss.

107 See J. Gothofredus, Codex Theodosianus, III, cit., p. 278. A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 216, points out that, to refer to the period of Lent, John Chrysostom uses the expression sancta quadragesima while Agostino talks about sancti dies.

108 De obitu Valentiniani consolatio, 18.

109 “CTh. 9,35,7. Emperors Honorius and Theodosius Augustuses to Anthemius, Praetorian Prefect. The judges of the provinces shall be admonished that in the examination under torture of the Isaurian brigands, the betrayal of the wicked plans of the brigands shall not be deferred, although such betrayal must be sought through the torture of the brigands. They shall not suppose that any day of the Quadragesima or the holy day of Easter shall be excepted, since pardon of the Highest Divinity is very easily hoped for in regard to such action, by which the safety and welfare of many are obtained. Given on the fifth day before the kalends of May at Constantinople in the year of the consulship of Bassus and Philippus – April 27 (February 26), 408.” (English translation in C. Pharr, The Theodosian Code, cit., p. 251).

110 On all of this see essentially E. Stein, Histoire du bas-empire. 1.1. De l’etat romain a l’etat byzantine, Texte, Bruges, 1959, p. 238. There is reference to the various episodes that featured the Isaurians as protagonists in the thread of testimonies of Ammianus Marcellinus and Zosimus, in J. Gothofredus, Codex Theodosianus, III, cit., p. 280.

111 On this problem in C. 3,12,2 see J. Rüpke, The Roman Calendar from Numa to Constantine, cit., p. 166 ss.

112 See J. Gothofredus, Codex Theodosianus cum perpetuis commentariis, III, cit., p. 280.

113 “Emperors Honorius and Theodosius Augusti to Anthemius, Praetorian Praefect. Let the judges of the provinces be warned not to think that they should omit any of the forty days of Easter or even the holy day of Easter itself in examining bandits (under torture) and especially the Isaurians, so that the disclosure of criminal conspiracies, which is to be sought through the torture of bandits, may not be deferred, since for this purpose, through which the safety and peace of many is secured, pardon from the Almighty is unquestionably hoped for. Given April 27, in the consulship of Bassus and Philippus at Constantinople (408).” (English translation in B. W. Frier et al. (eds.), The Codex of Justinian, I, cit., p. 645 s.).

114 On this aspect of the Justinian version of the constitution, see R. Bonini, Ricerche di diritto giustinianeo, Milan, 1990, p. 120 and note 85.

115 See A. Di Berardino, Christian Liturgical Time and Torture, cit., p. 220.

116 M. Bianchini, Cadenze liturgiche e calendario civile, cit., p. 255 ss. Note how what is described appears to be a specular mechanism with respect to the one used by the Church which, starting from Constantine’s era, started to take on similar administrative structures to the imperial ones.

117 In that regard, still in relation to CTh. 2,18,1 and C. 3,12,2, G. Anello, The Rest and the West, cit., p. 4.

118 See Footnote id., p. 4, with reference to Constantine’s legislation on the dies Solis.

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