Download PDF | Amnon Linder - The Jews in the Legal Sources of the Early Middle Ages-Wayne State University Press (1997).
715 Pages
INTRODUCTION
Jewry law, the corpus of legal texts and practices that regulated the lifeof the Jews in their relations with the medieval Christian society, is oneof the main sources of evidence on medieval Jewish history. This is dueto the central role given to legal concepts and practices in medievalChristian civilization, which usually formulated and explicated policiesin regard to the Jews in legal terms and on legal principles, while thepractical application of these policies caused both governors and governed, Christians as well as Jews, to use-and when the need arose, tocreate-specific judicial machinery and practices.
Although a large proportion of this activity was carried out in legal systems that had no-orvery little-use for written records (with the result that it remainedpractically undocumented), a considerable amount of this type of legalactivity took place in legal systems oriented to written authoritativesources and dependent on written documents for their proceedings; andthis resulted, necessarily, in a sizable body of texts. Most of the customary law systems belong to the first type, while the greater part of thelegal business transacted through Roman-inspired agencies-whether inthe Germanic succession states or in provinces and among populationsgoverned by vulgar Roman law or by imperial and ecclesiasticalauthorities-should be classified under the second type. Jewry law asevolved by the state and by the church is to be found, consequently, inthe texts generated by the secular and the ecclesiastical authorities entrusted with its formulation and application.
The present work aims topresent a comprehensive collection of the legal texts bearing specificallyon the Jews during the early Middle Ages, the texts that added up toform medieval Jewry law in its various aspects and through the different stages of its evolution, from the disappearance of the unitary imperial system in the fifth to sixth centuries to the emergence of centralizedgovernmental structures and the codification of canon law, roughly between the close of the eleventh century and the middle of the twelfthcentury. These texts do not constitute the whole body of Jewry law. In the first place, the entire sphere of customary law-characterized by oral transmission and procedure-is conspicuously and understandably absent from this body of evidence. Most of it is irrecoverable, and the historianis obliged to turn to much later written records or to non-legal evidencein any attempt to gain some knowledge of this type of legal activity. Second, Jewish life in the early Middle Ages was never totally enclosedwithin the boundaries of a legal immunity that shut off completely all "extraneous" bodies of law.
This was clearly the case in societies governed by territorial laws, but it was also true whenever Jews weregranted immunities from the laws in force; for no immunity was of sucha sweeping nature as to cover entirely all points of contact between Jewsand non-Jews, whether economic, social, cultural, or even religious. Some legal innovations-such as the peculiar Jewish Oath-prove, indeed, that common law failed to provide adequate remedies for specificlegal problems arising out of contacts between Jews and non-Jews andthat it was replaced, in such cases, by special dispositions. The general assumption held by the legislator was, therefore, that the Jews wereunder the common law unless they were withdrawn from its ambit through a specific dispensation. Any historical reconstruction of thereality of Jewish life in early medieval Europe that would ignore thisfactor will run the risk of arriving at partial, hence largely unreliable, results.
I have assembled the special legal texts that were evolved in regard tothe Jews, and they are of interest mainly from two points of view. First, they document the ideological stances, policies, and practical means ofapplication adopted and carried out in regard to the Jews by the ecclesiastical and the secular authorities. In so far as the status of the Jews wasdetermined on religious grounds, the church was the foremost legal authority called upon to lay down the law and see to its enforcement; and in so far as that status was determined on public law grounds, withthe Jews treated as citizens or as aliens, the same role reverted to thesecular state authorities. In practice, however, Jewry law was defined inboth spheres and by both authorities, the ecclesiastical as well as thesecular. Our documentation allows us, therefore, to reconstruct theroles performed by these two governmental networks, which practicallymonopolized between them the authority and the responsibility for thecreation and application of Jewry law.
Second, the importance of this body of texts derives from its specificity in regard to the Jews. By definition, common law and other "extraneous" laws were not directed specifically at Jews. They were applicable toJews when Jews were included in a population subject to them or to theextent that Jews were involved in situations they controlled. This legalsituation, which presupposes that Jews and non-Jews share a certainlegal equality, at least in the matters covered by these laws, clearlydiverges from the fundamental assumption that provided Jewry law withits main justification, namely, the legitimate otherness of the Jews asexpressed and embodied in their special legal regime.
The vigor of thisconception could best be appreciated against the enduring backdrop ofthe theories and sentiments on the nature of the Christian society; forJewry law assured the legally protected existence of the Jews as a separate and disparate entity within a society that defined itself in religiousand political terms as unitary and homogeneous, as Una, sancta, catholica, Apostolica et Rornana. While the evidence on the participation ofthe Jews in general legal frameworks should be considered as extremelyimportant, the search for their specificity leads the historian, unavoidably, to the special legal texts and practices evolved in their regard.
The basic distinction between the roles of the ecclesiastical and thesecular authorities in the formation of Jewry law determined my classification of the legal texts into two large divisions, the ecclesiastical and thesecular. On the whole, it proved to be a satisfactory classification; foreach of these divisions is easily distinguishable from the other by bothformal and content criteria. Formal criteria refer to the issuing authorities, the competent enforcement machinery and practices, and the distinctive type of the promulgated text, while content criteria refer to thegoals aimed at and the specific actions and situations liable to be regulated by these texts.
A certain blurring of edges and mutual infusionwere unavoidable; for texts, officeholders, and authorities of one spherefunctioned not infrequently within the other. But even material takenfrom one sphere and grafted onto texts typical of the other can usuallybe recognized and traced back to its authentic source, a further demonstration of the validity of the basic distinction between the two spheres. Each division in the collection is further subdivided into parts comprising texts that share distinctive common characteristics. The secular division (part 2) comprises the Roman and the Germanic legal texts of thesuccession states, as well as the Merovingian, Carolingian, and laterimperial public legislation and charters and the twelfth-centuryGlossators. The ecclesiastical division consists of three parts. Part 3includes papal decretals, part 4 conciliar canons, and part 5 canonicalcollections. Part 4 is subdivided into two groups, ecumenical andnational-provincial councils, with the latter group organized chronologically and geographically.
National councils are assembled together intoseparate subgroups, for example, the Merovingian and the SpanishVisigothic national-provincial councils. Part 5 follows a strictly chronological order (to the extent that these sources can be satisfactorilydated). A third, separate division groups the Byzantine texts (part 1). Evolved in a society that maintained its imperial structure uninterruptedly during the period under discussion, they stand in a closer relation to the unitary tradition of the Christian Roman Empire, combiningin its texts secular and ecclesiastical legislation much more successfullyand for a longer duration than in Western Europe. Their direct dependence on the authentic Roman legal heritage is, correspondingly, muchmore pronounced. This part, too, follows a chronological order, thoughtexts directly related among themselves are presented together as subgroups (e.g., the Basilica with its epitomes and reference works, theEcloga with its directly derivative literature), regardless of the exactplace of each work in the overall chronological arrangement of the part.
I have aimed at comprehensiveness rather than selectivity. As a corpus of texts, this collection should provide the historian with all therelevant texts available in print; and I have supplemented them withcertain texts still unpublished, known from manuscript versions only. It should enable the historian to formulate-and to solve-questions concerning quantities and frequencies (How many? How often?), in addition to the conventional qualitative problems (How harsh? How innovative? How consistent? How important?). Comprehensiveness implies acertain measure of repetition, more particularly in a cultural frameworkwhere the ancient authoritative text is much preferred to the new. Selection of the typical can dispense with the resurrected and the recycled, at the price, nevertheless, of imposing upon the reader the editor's evaluation, channeling his attention unduly to what was innovative instead ofto the common and the influential, and ignoring all quantitative hypotheses.
Most of the texts received into later sources were edited to someextent in the course of that transmission; and once altered, they must beconsidered as original texts. But even texts received in their entirety andwithout any change should be considered afresh, in the new context ofthe work into which they were inserted or integrated. A new context endows an old text with new meanings, and these new meanings becomevisible only when that text is examined in its context. A polite, thoughnot too enthusiastic, letter of recommendation can thus become a canonical directive on the correct way to treat converts to Christianity-oncethe original letter is received into a canonical collection and interpretedas a norm of general validity. I have reproduced, therefore, such texts intheir entirety rather than as short references to the ultimately originalsources, in order to facilitate the use of this collection.
The need to shift back and forth between several texts-sometimes very many texts-inorder to get acquainted with one specific source, would have turned out, surely, to prove both tiresome and exasperating. Furthermore, laterusage was not limited to secondary use only; it spread, not infrequently, to tertiary use, quaternary use, and so on. A string of references endingonly at the ultimate source would have been even more impractical. Ihave resorted to short references in place of full texts, nevertheless, in afew cases, mainly in the chronological canonical collections, where nonew context was created by the compiler. A similar consideration guided my treatment of the relevant textsembedded in larger texts. Original complete texts that deal only withJewry law add up to a minority of our documentation. Most of our textsconsist of parts of heterogeneous documents dealing with many different subjects. I have therefore extracted clauses on Jews from original documents when the latter have no intrinsic unity (e.g., conciliar decreespromulgated by a given council or Carolingian capitularies) but kept them in their original whole contexts when the original documents betray a logical, ordered structure.
The advantages of maintaining therelevant text in its original context are obvious; and the price of reproducing material that has no direct bearing on Jewry law is more thancompensated for by the ability to evaluate the relative role of a given"relevant" clause, in comparison with the other "irrelevant" passages ofthe same original document, on both formal and content criteria. Formal criteria deal with the relative space given to each clause and theplace allotted it in the structure of the whole, content criteria with theopen, as well as the hidden, conceptual links between the various clausesof the document. When Jews are granted the Peace of the Empire, thehistorian is interested, of course, in the mere statement of that fact, butalso in the actual content of that particular Peace and in the relativeposition allotted the Jews among its other beneficiaries- questions that one could not begin to answer without examining the complete text ofthat grant. Again, a charter of urban privileges containing a single clausein reference to Jews should be studied in its entirety if the relativesignificance of that given clause is to be evaluated correctly.
I haveaimed, consequently, at presenting complete original texts, to the extentthat the nature of the documents demanded and common sense allowed. The choice of texts, finally, was determined by the extraordinary transformation of the concept authentically legal since the fifth to sixth centuries. If the authentically legal derived, originally, from the sole legislative and judicial powers of the state, the disappearance of the state as areal, functioning system of government, together with the emergence ofthe church as a parallel network of government in certain spheres of life, resulted in an extraordinary widening of the legitimate sources of the authentically legal. Not only were ecclesiastical legislative and judicial authorities and acts accepted as completely legitimate (indeed, theywere seen, not infrequently, as far more legitimate than any other legislative or judicial authority and act), but the classical distinction betweenprivate and public, so essential for the proper distinction between legal and illegal, was seriously eroded.
It was maintained, to a meaningful extent, in the political and legal systems oriented on the Roman model and is to be found, consequently, in the state legislation issued in theGermanic succession states, by the Carolingians, the Ottonians, and theeleventh to twelfth century emperors. Customary law systems, on theother hand, tended to blur that distinction; and the demise of the state asan effective government system during the greater part of the periodunder discussion could not but further this process. A legal text, therefore, was any text considered as such, whether secular or ecclesiastical, of private or of public origin, regardless of the classical formal or content criteria. Private works became normative and binding both in the ecclesiastical sphere (all the canonical collections up to the twelfth centurywere private enterprises in the sense that they were not commissioned orenforced by an ecumenical authority), and in the secular sphere (theGloss was recognized, eventually, as binding on the court).
Literary andtheological texts were transformed into legal norms through their integration into practical penitentials and canonical collections, in manycases after a long lapse of time. The legal scene of the early Middle Ageswas characterized by a great variety of types and by very loose definitions of what was legal; our choice of legal texts bearing on the Jews wasdetermined, consequently, by the contemporary definitions of the legal. The overall organization of the collection is as follows. The texts havebeen arranged in five parts. Each part consists of separate sources, 142in all. They are divided, again, into 1,016 smaller text-units, given intheir original textual forms (canons, chapters, paragraphs, laws etc.). Each source opens with a short introduction on its history and transmission.
The texts are given in their original version, Greek or Latin, accompanied by English translation. Each text-unit opens with (1) its exact reference (books, titles, chapters, paragraphs, laws, etc.), (2) its original incipit, (3) its rubric, and (4) its inscription in translation. Bibliographical references and footnotes have been restricted to the bare minimum; they were designed to provide, nevertheless, basic pointers for a moreextensive bibliographical search. The Index of incipits of all the textunits should facilitate the consultation of this collection and assist thehistorian in identifying sources and texts. I completed this book in 1987. Various circumstances delayed its publication, but I have been able to update it to 1992 and make use of newstudies and critical editions published in the interval.
I wish to acknowledge, finally, my deep gratitude and debt to the lateJoshua Prawer, my teacher and colleague, who initiated this project andaccompanied it with his usual drive and advice; his untimely demise isstill sorely felt.
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