Emperor Justinian I and the Jews

The Changes to Nusach HaTefilah

The Dispute

Throughout history, Jews have been known to argue.  While arguments like those that appear in the Gemara are an integral part of Torah study, other disputes throughout the years led to much less desirable outcomes.  At times, when Jews turned to the ruling powers to resolve their arguments, the results were tragic and affected the Jewish community for generations to come.

Such was the case when a quarrel in the Jewish community in the Byzantine Empire was brought to Emperor Justinian in the year 553 CE.  As Justinian himself describes in a legal document that became known as Novella 146:¹Translated in Amnon Linder’s The Jews in Roman Imperial Legislation, Wayne State University Press, Detroit, MI, 1987. Page 408.

… when we learnt that they [the Jews] dispute among themselves we could not bear to leave them with an unresolved controversy.  We have learnt from their petitions, which they have addressed to us, that while some maintain the Hebrew language only and want to use it in reading the Holy Books others consider it right to admit Greek as well, and they have already been quarreling among themselves about this for a long time.

Unfortunately, history did not preserve any details of this dispute.  As the Cambridge historian Nicholas de Lange writes:²Nicholas de Lange. Jews in the Age of Justinian. The Cambridge Companion to the Age of Justinian. Cambridge University Press, 2005, page 401.

The main obstacle facing anyone attempting to write the history of the Jews in the Age of Justinian is a shortage of securely datable written texts, especially texts written by Jews.  Apart from a few characteristically laconic inscriptions, all the dated writings that we have were written by non-Jews, and almost all of these are inherently antagonistic to the Jews as a group.

No records exist that could enlighten us as to the mindsets and challenges of the Byzantine Jewish community of the time.  We can only guess how bitter the argument must have been.  Clearly, the Jews lost all hope of resolving the dispute on their own.

What we do know is that the dispute revolved around the Torah reading in the synagogue.  While some community members insisted on reading the Torah in its original Hebrew, others felt that not enough members of the congregation were sufficiently familiar with Hebrew to understand the Torah reading.  They insisted that the Torah should be read in Greek, the spoken language of the Byzantine Empire.  It is not clear whether the proposed Greek reading was to be instead of or in addition to the Hebrew reading.

To Justinian for Justice

In desperation, the Jews turned to Emperor Justinian.  Who was Justinian and why did the Byzantine Jews put their trust in him?

Justinian prided himself in his administration of justice.  He devoted much time and effort to legal matters.  According to Encyclopedia Britannica,³Available at www.britannica.com/biography/Justinian-I, accessed April 2020. Justinian was “noted for his administrative reorganization of the imperial government and for his sponsorship of a codification of laws known as the Code of Justinian.”

A comprehensive collection of laws, compiled by Justinian and his faithful ministers, the Code of Justinian earned praise and admiration not only from contemporaries, but also from many subsequent generations of legal scholars.  In the introduction to an English translation of the Code, Alan Watson, a law professor who edited the book, writes:⁴The Digest of Justinian, Volume 1. United States, University of Pennsylvania Press, Incorporated, 2011.

The compilation of Roman law which was enacted under the Byzantine emperor, Justinian I … has been without a doubt the most important and influential collection of secular legal materials that the world has ever known … All later Western systems borrowed extensively from it.  But even more significantly, that strand of the Western tradition encompassing the so-called civil law systems … derives its concepts, approaches, structure, and systematics of private law primarily from long centuries of theoretical study and putting into practice of the [Code of Justinian].

To this day, Justinian has the reputation of having been a just emperor.  Many of his laws and innovations do indeed seem just, but was that the case when it came to the Jewish residents of his empire?

Justinian and Religion

Justinian was a visionary who dreamed of returning the struggling and fractured Roman Empire to its former glory.  Among his accomplishments was the reconquest of the lands around the Mediterranean Sea that had belonged to the Roman Empire previously, but were taken over by Barbarians.  In describing Justinian’s legacy, Encyclopedia Britannica tells us, “It should not be forgotten that Justinian renewed Byzantine rule and Hellenic influence in parts of Italy for several centuries and that for more than a half century, sound government was given to North Africa.”

However, Justinian’s attempts to unite a large area of land with diverse populations faced a major challenge.  Unlike in the times of the original Roman Empire, when the Romans brought their culture and lifestyle wherever they went, in the times of Justinian, there was no unifying culture or lifestyle that would help the nations under the Byzantine rule feel part of one unified whole.  While some descendants of the original population remained in the region, many of the residents belonged to the conquering Barbarian nations, such the Goths, Vandals, and Arians.  In addition, the lands in the north were often invaded and held by the Huns, Bulgars, and Slavs.  Some of them eventually succeeded in settling in the region.

Thus, the original territory of the Roman Empire was occupied by Christians as well as various pagans with diverse cultures and customs.  These people, who had become neighbors, had nothing in common with each other.  While some of them were loyal to Justinian, others changed sides on a whim, sometimes more than once.  The emperor was desperate to find something that would unite all the people under his rule and earn him their loyalty.

To this end, Justinian turned to religion.  Himself a devout Christian, Justinian hoped that Christianity, the official state religion of the Byzantine Empire, could play the role of that unifying force that would bind the residents of his empire and bring peace and security.

Justinian’s Ambitions and the Jews

Justinian put much time and effort into unifying his empire through Christianity.  He devoted himself to studying theology, addressing and attempting to resolve controversial issues.  Much of his legal codex deals with religious problems.

However, Justinian’s religious policies encountered an obstacle – the existence of non-Christians within his empire.  While greatly outnumbered, non-Christians remained a sizable minority and a threat to Justinian’s vision.  As history and theology professor John Meyendorff explains,⁵Meyendorff, John. “Justinian, the Empire and the Church.” Dumbarton Oaks Papers, vol. 22, 1968, pp. 43–60. JSTOR, www.jstor.org/stable/1291275. Accessed 23 Apr. 2020. Justinian’s religious policy was “directed, on the one hand, towards the final liquidation of dissident groups – pagans, Samaritans, Christian heretics – which were small enough to be dealt with by simple administrative measures and on the other, toward a severe limitation in civil rights of those whose simple annihilation was either impossible or undesirable.  The Jews found themselves in the last category, but the Monophysites presented by far the major problem.”

Most of Justinian’s theological work and religious legislation was aimed at reconciling different branches of Christianity, one of which was the Monophysite sect.  These extensive reconciliation efforts ultimately failed, and the split between the western Roman Catholic and the Eastern Orthodox churches continues until today.

Preoccupied with Christian internal affairs, Justinian might have let the “Jewish problem” slip under the radar.  However, the Jews themselves drew Justinian’s attention with their insistent petitions about their disagreement regarding the language to be used in synagogues.

Status of Jews in the Byzantine Empire before Justinian

Justinian was not the first emperor to mention Jews in his legal code.  Historically and ideologically, the Byzantine Empire perceived itself as the continuation of the Roman Empire, and the Romans had enacted laws regarding Jews from the beginning of their rise to power.

For the first several centuries of its existence, the Roman Empire was pagan and persecuted both Jews and early Christians.  In 311 CE, Emperor Galerius issued the Edict of Toleration, officially ending government persecution of Christians.  How did the edict affect the Jews? American Jewish historian Solomon Grayzel explains:⁶Solomon Grayzel. The Jews and Roman Law. The Jewish Quarterly Review, Vol. 59, No. 2 (Oct. 1968), pp. 93-117.

The pagans had considered Judaism a cold religion; they spoke of circumcision as barbarous.  The Christian emperors adapted and improved on these sentiments, referring to Judaism as “an unworthy superstition,” a “turpitude,” and to Jews as a “feral sect,” and the like.

A century before Justinian, a different emperor, Theodocius, codified Roman law.  Much of Justinian’s legislature was based on Theodosian Codes.  Grayzel finds it striking that “the codes do not use the phrase that Judaism was a ‘permitted religion.’ Closest to it is a negative statement by Theodocius I, dated 393, which reads, ‘It is sufficiently established that the sect of the Jews is forbidden by no law.’”

Nevertheless, says Grayzel, after the Edict of Toleration:

… the Jews enjoyed considerable rights.  They could erect synagogues, observe their Sabbaths and holidays, and practice their religion openly.  They were excused from military service, since that might entail the violation of their Sabbath and the dietary laws.  They were excused from sacrificing to the gods, and needed only to pray for the welfare of the emperor and the Empire.  They could engage in the business of buying and selling slaves and in any other type of commerce.  They could hold office.  In many instances, they could resort to their own laws in litigation, and they could take an oath in their own fashion.

However, once Emperor Constantine made Christianity the official religion of the Roman Empire, religious freedom for non-Christians began to decline.  Grayzel writes that with time, “the anti-Jewish laws became more inclusive and sharper, although there was a certain amount of vacillation.” For example, in 423, Emperor Theodosius II decreed that no new synagogues could be built and that existing synagogues could not be enlarged.  Justinian reaffirmed this law in his own Codes several decades later.  Archeological evidence, however, suggests that the law was not strictly enforced in all regions of the empire.⁷de Lange, page 406.

After examining the available evidence, de Lange concludes:

The consolidation of the Christian Church, with its deeply ingrained hostility to Judaism, as an institution of the Roman state gradually eroded the protected status of the Jewish communities and exposed them to discriminatory treatment, ranging from loss of privileges to expropriations and forcible conversion to the state religion.  The process was very gradual, as we can see from the legal codes.

De Lange goes on to say that Justinian’s Codes “severely limits the rights of Jews in the civic, economic, and religious spheres.” While Jews in the Byzantine Empire were not persecuted to the extent that they were under pagan Roman rule, their civil rights were limited.  Nevertheless, they managed to maintain a vibrant religious and communal life.  They had complete freedom of worship within the walls of their synagogues.  Until, that is, the Jews themselves petitioned Justinian regarding the language of Torah reading, at which point the Emperor saw the perfect opportunity to interfere in Jewish religious life.

Justinian’s Response to the Jewish Petitions

“Having therefore studied this matter we decided that the better case is that of those who want to use also Greek in reading the Holy Books, and generally in any language that is the more suited and the better known to the hearers in each locality,” wrote Justinian in his Codes.⁸lated in Amnon Linder’s The Jews in Roman Imperial Legislation, Wayne State University Press, Detroit, MI, 1987. Pages 408-409.  But that was only the Preamble.  In the body of Novella 146, he continued:

We also order that there shall be no license to the commentators they have, who employ the Hebrew language to falsify it at their will, covering their own malignity by the ignorance of the many … What they call Mishnah, on the other hand, we prohibit entirely…

Thus, when Justinian was invited by the Jews to resolve their dispute, he did much more than choosing the language of krias haTorah.  In his response, he prohibited the study and teaching of Mishna in the synagogue, attempting to eradicate the Torah Sheba’al Peh.

Christian War on Torah Sheba’al Peh

Why was Justinian so opposed to Mishna? The Christians of the time read the Tanach with an agenda.  They took passages of the Tanach out of their traditional context and interpreted them to support their beliefs.  Therefore, they saw the Torah Sheba’al Peh, which transmitted the age-old, authentic Jewish interpretation of Tanach, as an obstacle to world-wide acceptance of Christianity.

Israeli historian Albert I.  Baumgarten explains:⁹Albert I. Baumgarten. Justinian and the Jews. Rabbi Joseph H. Lookstein Memorial Volume. Ktav Publishing House, New York, 1980.

Novella 146 … is really a part of the Jewish-Christian debate about the interpretation of the Scripture.  Both religions, in spite of their differences, claimed to be based on the Hebrew Bible; debate which tradition had exclusive possession of the truth of the Bible was therefore inevitable.

The purpose of Novella 146 was to force the Jews to confront the text of the Bible unhindered by Jewish tradition … Therefore, he decreed that the Bible be read in a language the local Jews understand.

As in prior times in history, Justinian tried to eliminate the Torah Sheba’al Peh, which stood as an obstacle in the way of his grand plans.  And just like rulers before him, he did not succeed.

Consequences of Novella 146

While the effects of Justinian’s devastating decree reverberated throughout the following centuries, Jews continued to find creative ways to keep the study of Torah Sheba’al Peh alive.  Study of Mishna, and eventual compilation of the Gemara, proceeded with full force in Bavel, which was under the rule of the Persian Empire at the time.  Although the Byzantine Empire made numerous attempts to conquer Persia, through tremendous hashgacha pratis, those attempts never succeeded and Justinian’s decree never reached Bavel.

Even within the borders of the Byzantine Empire, Jews managed to learn Mishnah.  Baumgarten concludes:

Justinian … tried to achieve a symbolic triumph over Judaism by banning the mishna.  On a practical level, his legislation must have been ultimately unenforceable.  While Imperial decisions could have considerable force, it is impossible to totally control life and thought … evidence accumulating from the study of materials in the Cairo Genizah clearly shows that in spite of the obstacles erected by the Empire and its legislation, Jewish religious and intellectual life continued.

However, Jews had to modify some synagogue practices to avoid Imperial punishment.  These changes are discussed in Geonic response.  Since Eretz Yisrael was located within the territory of the Byzantine Empire and fell under the authority of its legislature, its community was directly affected by Justinian’s decree.

In an 8th century teshuva, Rav Yehudai Gaon of Sura described the Jews’ predicament under Justinian:¹⁰As cited in Meir Holder’s History of the Jewish People: From Yavneh to Pumbedita. Mesorah Publications, 1986. Page 254.

They had issued a decree of shemad against the Jews of Eretz Yisrael, forbidding them to read the Shema and even to pray; but they were allowed to congregate on the Sabbath morning for the purpose of “reciting poetry and hymns”; they would insert portions of the Scriptures, the Kiddush, and the Shema secretly.

Rav Yehudai Gaon goes on to discuss whether the changes in Shabbos davening should be maintained even after “the Holy One, Blessed is He, has ended the rule of Edom and annulled their decrees, and in their place have come the Ishmaelites, who permit [the Jews] to study the Torah, to read the Shema, and to pray.” Even though he concludes that the prayers should revert to their original order, Rav Sar-Shalom Gaon disagrees.  He writes:¹¹As cited in Meir Holder’s History of the Jewish People: From Yavneh to Pumbedita. Mesorah Publications, 1986. Page 254.

When the decree [against the recitation of the Shema] was annulled, and the Shema was again recited in its proper place, and regular prayers were possible, there were those who wished to remove the Shema [from the Kedusha] altogether.  The sages of that generation decided to leave it in the Mussaf service … so that the miracle should be made known for all generations.

That remains our custom to this day.

Another product of those difficult times are the piyutim written by the rabbis of the time which allowed them to circumvent the restrictions on teaching Torah.

When the teaching of Jewish law was forbidden – and especially those laws relating to the festivals – this information was included, by subtle allusions, in the piyutim (the liturgical poems that were added to the prayer services) of the festivals.  The Rabbis, who were prohibited from teaching Halacha, would also mix halachos into the Sabbath lectures.  Indeed, it is to this period that the Jewish people are indebted for many of the midrashim that have enriched the heritage of the nation, and even more, for the piyutim which grace the Sabbath and festival services.¹²Holder, page 195.

Historically, Jews have usually emerged stronger and more united in response to oppression.  Yet, the historical record makes clear that had the Jews in Justinian’s times found a way to unite on their own and resolve their disputes internally without turning to a hostile ruler, perhaps the oppression they suffered under Justinian’s rule might have been avoided from the outset.