History of The Jews in The Byzantine Empire - Theodosian Code: 404-527

Theodosian Code: 404-527

In 404, Jews were excluded from certain governmental posts. In 418, they were barred from the civil service, and from all military positions. In 425, they were excluded from all remaining public offices, both civilian and military—a prohibition which Justinian I repeated. Such restrictions, however, inevitably compromised the theological arguments for restricting the Jewish religion; although they empowered the Christian citizens of the empire at the expense of its Jews, all laws dealing with the Jews implicitly recognized the continued existence and legality of the Jewish religion.

Thus Theodosius found that he had to balance the first two of the three factors governing the treatment of Jews in the empire—theology, political pragmatism and enforceability. He could not, however, effectively control the third. In 438, Theodosius had to reaffirm the prohibition on Jews holding public office, because it had been poorly enforced. Even in 527, a decree which renewed this prohibition began by observing that "heedless of the laws' command infiltrated public offices".

There was one office, however, that Jews were not forbidden from assuming. This was the office of decurion, a tax collector who was required to pay all deficits in revenue from his own pocket. Theodosius II, who laid out much of the legal precedent and foundation for Byzantine law in his Theodosian Code, permitted Jews, like other citizens, to hire a substitute to perform the duties of decurion in their place. Justinian, whose legal code included 33 laws relating to the Jews, initially maintained this ability, but it was abolished in 537. Sharf explains that the purpose of this was so that the Jews "never enjoy the fruits of office, but only suffer its pains and penalties".

In addition to the matter of holding public office, Jews were also unequal to Christians with respect to the ownership of slaves. Restrictions on the ownership of Christian slaves by Jews were in place through the reign of many emperors, under the fear that Jews would use conversion of slaves as a means to increase their number. Additionally, this was designed to provide an incentive for non-Christian slaves to convert into Christianity, and an economic restriction on the Jews. Restrictions on slave-owning could not, however, be excessively burdensome, because the Byzantine economy relied heavily on slave labor. Under the Theodosian Code, therefore, ownership of Christian slaves by Jews was not prohibited, although their purchase was. Thus, one who gained possession of a slave by means such as inheritance would remain his or her owner. Purchase of slaves was usually penalized by compelled sale at the original purchase price.

Slave ownership produces another example of the threefold balancing act of Legislation dealing with the Jewish minority of Byzantium: ownership of Christian slaves undermined the "living testament" theology, but was a pragmatic requirement of the time, and the prohibition thereof could not be entirely enforced, since freedom may not necessarily have been a desirable option for a slave who was well-treated by his masters.

The third important restriction on Judaism—in addition to the limitations on public service and slave ownership—was that the Jewish religion, though allowed to survive, was not allowed to thrive. Theologically, the victory of Christianity could be successfully asserted by maintaining a small contingent of Jews within the empire, although allowing them to become too sizable a minority would threaten the theological monopoly of Orthodox Christianity within the Empire.

One important ramification of this policy was the prohibition on the construction of new synagogues within the Empire, though the repair of old synagogues was permitted. This prohibition was difficult to enforce, as archaeological evidence in Palestine indicates that illegal synagogue construction continued throughout the sixth century. The synagogue did continue to be respected as an inviolable place of worship until the reign of Justinian.

Beginning at this time, most legislation regarding the Jews—even laws which expanded the rights which they were afforded—were "prefaced by unambiguous expressions of hatred and contempt for Judaism".