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Legal engagement

 | 
Katell Berthelot
, 
Natalie B. Dohrmann
, 
Capucine Nemo-Pekelman

Legal pluralism under empire

Legal knowledge and its transmission in three marriage contracts from the Judaean desert

Kimberley Czajkowski

Résumé

The archives of Babatha and Salome Komaise have become especially popular case studies of multi-legalism in antiquity. This paper re-examines the three very different marriage contracts from the archives to trace the methods by which knowledge of these different legal orderings could be transmitted within a small, recently annexed community. An emphasis is placed on the importance of preserving documents for the transmission of particular legal forms, and it is suggested that there may have been differences in how models of Jewish Aramaic and Greek contracts were kept and made available in this community. This is also set in the context of the effects of the newly arrived Roman power on the availability of different contractual forms.

Texte intégral

  • 1 See Cotton – Cockle – Millar 1995, p. 214-235, for a survey of the evidence up to that year.
  • 2 For a larger scale study of the archives using this methodological approach, see Czajkowski 2017: (...)

1The Judaean Desert has offered up a wealth of documentary evidence in the last century.1 Among the many finds from this region are the archives of two families, commonly named after the Jewish women to whom most of the papyri belonged: Babatha and Salome Komaise. These women lived in the village of Maoza on the southern coast of the Dead Sea, an area that was first part of the Nabataean Kingdom but later became part of the province of Roman Arabia in 106 CE. The archives are not just diverse in their linguistic range (they include Greek, Jewish and Nabataean Aramaic documents), but in the variety of legal traditions they appear to attest: Babatha in particular has become something of a poster-girl for multi-legalism in the ancient world.2

  • 3 The literature on this is vast, but both Oudshoorn 2007, and Katzoff read many of the documents as (...)
  • 4 The translation of the ancient terms is extremely problematic, though less important than the actu (...)

2Much ink has been spilt in trying to determine the “operative law” of the archives, with fierce advocates of a Jewish and non-Jewish (sometimes Greek, often Roman) framework on opposing sides.3 Some of the fiercest controversy has centred on the interpretation of the marriage documents in these archives. There are three examples of these, two written in Greek and one in Jewish Aramaic. Aside from the variety of legal formulae found in these contracts, they have attracted so much attention in part because of their explicit reference to various different “laws” or “customs” (דין / νόμος / νομοί),4 a feature that is not found in the other documents in the archives. Yet the explicit reference does not make their interpretation in any way straightforward, and the Greek contracts in particular have been read very differently in terms of their legal formulation over the decades.

  • 5 These do not represent the only marriage contracts to have come out of the Judaean desert corpus: (...)

3I do not intend to tackle the problem of the “operative law” of these marriage contracts, but shall instead use them as something of a case study for how the approach typically designated as multi-legalism or legal pluralism can help us to think more about how individuals dealt with their legal transactions within their specific social, cultural, political and geographical settings.5 In particular, the contracts offer a small window into how knowledge about different legal traditions was transmitted in this community and the effects of the Roman presence on this process.

The marriage contracts: a brief overview

  • 6 See Meyer 2007, p. 53-82 on the format of the documents. Cotton 2004, p. 52-54 provides an excelle (...)

4The Babatha and Salome Komaise archives contain three marriage contracts: P. Yadin 10, P. Yadin 18 and P. Hever 65. All are double deeds, i.e. the text is written out twice on the same sheet of papyrus, and the upper text rolled up and secured.6 The idea was that the upper copy of the text could later be opened and checked against the lower version in order to prevent forgery, though it should be noted that the texts are not always identical. Furthermore, although they were all originally double deeds, the inner text for P. Yadin 10 has not survived and the outer text of P. Hever 65 has also been lost.

  • 7 Originally published in Yadin – Greenfield – Yardeni 1994, p. 75-101; see also the re-publication (...)
  • 8 Judah appears as Babatha’s guardian in documents written in 125 CE (see P. Yadin 14, lines 22-23 a (...)
  • 9 On these clauses, see Lapin 2013, p. 79-92, especially at p. 82-83.
  • 10 The relevant passage of the Mishnah is m. Ketubbot 4:7-12. See Yadin – Greenfield – Yardeni 1994, (...)

5P. Yadin 10 is the only document of the three written in Jewish Aramaic.7 This is Babatha’s marriage contract with her second husband, Judah. The date, which would have been at the top of the papyrus, is unfortunately lost, though from the information in the rest of the archive we can probably place it in the mid to late 120s CE;8 it certainly, at any rate, belongs to the Roman era. It is notable for several reasons: first, it contains the only explicit reference in these archives to an act completed “according to the law of Moses and the Judaeans” (כדי]ן מו֗שה ויה[ו]דאי) (line 5). Additionally, many of the clauses within this contract bear remarkable similarities to those that are later laid out in the Mishnah,9 including (though not limited to) the specification of the amount due to the wife at the conclusion of the marriage, and the promise of the husband to redeem her if she were taken captive.10 Because of this, the document is typically classified as an early ketubbah. To add to its singularity, this papyrus is also the only one in these archives that is confirmed to have been written by one of the participants themselves, rather than a professional (or perhaps sometimes semi-professional) writer, meaning it constitutes a more direct attestation of the knowledge of one of the parties themselves and not of some kind of advisor or scribal intermediary.

  • 11 Originally published by Lewis – Katzoff – Greenfield 1987.
  • 12 On ἔκδοσις, see Yiftach-Firanko 2005, p. 67-84, and idem 2003, p. 3-6, 45-46, 59-63; see also Mélè (...)
  • 13 P. Yadin 18, lines 8-9 / 40-41.
  • 14 This addition to the dowry by the groom is one of the points that has proved contentious to interp (...)
  • 15 Katzoff in Lewis – Katzoff – Greenfield 1987, p. 241 translated this phrase as “according to the l (...)
  • 16 Lewis – Katzoff – Greenfield 1987, p. 233 translate this as “in accordance with Greek custom” (cf. (...)
  • 17 The term is used six times in these archives, by two different scribes (in P. Yadin 15, 17, 18, 20 (...)

6The two Greek contracts, at least at first glance, offer a stark contrast to what is usually unequivocally seen as a “Jewish” document. The first of these, P. Yadin 18, is that of Shelamzion, Babatha’s step-daughter (Judah’s daughter) to a certain Judah Cimber, written on 5 April 128 CE.11 The opening formulae of the document are strongly reminiscent of Greek marriage contracts: the bride’s father gives her away by means of an ἔκδοσις clause,12 in contrast to Judah taking Babatha as his wife, as is common in ketubbot. This is closely followed by the acknowledgement of the receipt of the dowry by Judah Cimber from her father, which was paid in “feminine adornment in silver and gold and clothing” (κοσμίαν γ̣υ̣ναικίαν ἐν ἀργύρῳ καὶ χρυσῷ καὶ ἱματισμῷ).13 Cimber, the groom, also promises to add a further amount to this.14 The whole sum is secured on all the groom’s possessions later in the document. The dating formulae, as is typical of the documents in these archives, include both the consular year and the year calculated from the establishment of the province; in addition to these Romanized dating features, the document is also one of those in the archive that concludes with the cautio (the written record of the stipulatio). Furthermore there are two key references to νόμος in this contract: the first is simply κατὰ τοὺς ν̣όμους (lines 7 / 39),15 without further clarification; the second is more specific in reference, to Judah Cimber feeding and clothing his wife and any children ἑλληνικῷ νόμῳ (lines 16 / 51).16 In the upper text, this phrase has been added above the line though little can be deduced from this, since it is fully integrated into the main text in the lower portion of the document: the addition likely represents a correction as the writer checked his work. Both Judahs sign and attest the document in Aramaic at the end, and there are seven signatures (one Greek, the rest Aramaic) on the back of the papyrus, which is written by a certain Theënas son of Simon, who describes himself as a λιβλάριος.17

  • 18 Originally published in Lewis 1989, p. 130-133, as P. Yadin 37; re-published with considerable rev (...)
  • 19 Lewis, 1989, p. 130, read the document as the former, consequently restoring εἰληφέναι in line 4; (...)
  • 20 Originally raised and dismissed by Lewis 1989, p. 130, preferred in the edition by Cotton – Yarden (...)
  • 21 Preferred by Lewis, 1989, p. 130. Katzoff originally suggested this interpretation to Lewis, and f (...)
  • 22 Ilan 1993, p. 247-264.
  • 23 Lewis 1989, p. 132, translates this as “in accordance with Greek custom and Greek manners”; cf. Co (...)

7P. Hever 65, written on 7 August 131 CE, documents the marriage of Salome Komaise and Yeshua, son of Menaḥem.18 Once again, the dating formulae are by consular and provincial year, though the contract then differs significantly in formulation from that of Shelamzion: while the beginning of the text is fragmentary, it is unlikely that the document began with an ἔκδοσις formulation. The structure was therefore either that of the groom taking a bride or the couple forming an agreement ([ὡμολογήσ]α̣το, line 3) to continue to live together, “as also before this time” (ὡ̣[ς κ]αὶ πρὸ τούτου τοῦ χρόνου, line 6).19 The latter is again a significant phrase that has been interpreted variously as (a) revealing a kind of ἄγραφος γάμος institution that we know already from Egypt;20 (b) as evidence of a Jewish custom of cohabitation before betrothal when the bride is an orphan and a minor,21 or (c) as evidence of “premarital cohabitation” as a local practice in second century Palestine.22 The groom confirms receipt of the dowry, which also seems to be secured on his possessions. The dowry is again paid in “feminine adornment,” and the provision to support the wife and any future children, this time ν̣ό̣μ̣[ῳ] [ἑλληνικ]ῷ καὶ ἑλλ̣[η]ν̣ι̣κ̣ῷ τρόπῳ (lines 9-10)23 is also found in this contract. Like P. Yadin 18, the contract concludes with a stipulatio clause.

  • 24 See, for example, Wasserstein 1992, p. 67-68, who supports this; see also Cotton 1994, p. 82.
  • 25 See Katzoff in Lewis – Katzoff – Greenfield 1987; Katzoff 1991; Katzoff 1995 a, p. 37-45; Oudshoor (...)
  • 26 Cotton 1994, p. 81 has already observed more specifically with regard to the clause providing for (...)
  • 27 Oudshoorn 2007, p. 434 [my italics].

8P. Yadin 10 has not attracted quite so much controversy as the Greek documents, which have been read either in terms of Greek marriage practice and legal institutions24 – usually in comparison with what we find in the Egyptian papyri – or through a kind of interpretatio Hebraica that places the contracts in line with specifically “Jewish” practice, even if the litigants did adopt Greek formulaic language.25 But as should also be obvious from this rather brief summary, the Greek contracts themselves, despite their similarities, are in fact far from uniform in nature.26 This is not simply a case of two alternative legal contracts in different languages, nor does it seem easy to classify P. Yadin 10 as “Jewish” and P. Yadin 18 and P. Hever 65 as “Greek,” regardless of how we come down in terms of interpreting the latter documents: this kind of dichotomy implicitly plays into an uncomfortable assumption that what is “Greek” cannot be “Jewish”. As Oudshoorn has already observed, “We have three types of marriage contracts in our archives”.27 A Greek-Jewish dichotomy would therefore be oversimplified; among other things, it also skates over the inclusion of the Romanized elements, possibly assuming that Greek is equivalent to Roman in this context (a decidedly problematic assumption); even within Greek language contracts, there could be quite some considerable variation. While we can continue to debate under which legal sphere this places the contracts, there are a series of other questions that are vital to understanding the contracts and the legal culture of this village: How was such variation made available in the first place? Who knew about these different options and transmitted them?

Language, legal knowledge and its transmission

  • 28 Aside from P. Yadin 18, he wrote P. Yadin 13-17, 32.

9While I have suggested the Greek-Jewish opposition in terms of legal context is an overly simplistic one, the linguistic component is an important point to consider. We should not overlook nor under-emphasize the fact that we are dealing with contracts in two different languages: Jewish Aramaic and Greek. P. Yadin 18 also includes Jewish Aramaic subscriptions in the form of attestations by both Judahs. Furthermore, while P. Yadin 10 was written by the groom himself in his native language, P. Yadin 18 was written by a professional writer, Theënas son of Simon, who is known to have written five other documents in this archive.28 There is no reason to think any of the principals wrote P. Hever 65 themselves either. Generally in the ancient world hired writers would compose such documents, and indeed P. Yadin 10 is the only exception to this rule in these archives.

  • 29 Literacy levels varied considerably in the ancient world, meaning that a straightforward label of (...)

10What are the implications of this? First, we cannot assume the parties to the Greek contracts were fully aware of or fully in control of the legal niceties of their documents. Judah was obviously literate in Jewish Aramaic, and the groom in P. Yadin 18, Judah Cimber, also seems to have been. It is possible, however, that this was to a more limited extent, since we only have a fairly straightforward attestation written by him, not a full contract.29 But their literacy levels in Greek are entirely unknown. “Unknown” (and not non-existent, for example) should be emphasized: these parties might have been able to write no Greek but read some; read only a little to none; speak Greek but not read or write it; or indeed read or write, perhaps simple, Greek but have chosen not to in these circumstances. Equally, however, knowledge of Greek for everyday purposes is an entirely different beast from drawing up a legal contract in the language. The same point could be made with regard to Judah’s knowledge of Jewish Aramaic: drawing up this marriage contract presumes a rather different skill and knowledge set from those linguistic skills employed in day-to-day conversation or simple subscriptions.

  • 30 Yiftach-Firanko 2005, p. 83 raises the possibility that the inclusion of the ἔκδοσις clauses “may (...)
  • 31 See the comments by Kelly 2011, p. 38-39, on such issues in the Egyptian papyri; cf. Bryen 2013, p (...)
  • 32 This might be due to a multitude of factors. A different reaction to the new Roman presence from t (...)

11Thus, there is a strong probability that many of the oft-disputed phrases in the Greek documents had more to do with scribal influence than the innate preferences of the parties themselves.30 Writers, especially legal writers, have stock phrases, a technical vocabulary, and a specialist knowledge (that may also have varied in level, sphere, or quality), which they could and did bring to the documents they composed.31 There is no reason to assume that the parties had this same knowledge base. This is not to deny their influence: they have to explain the situation to their writers, express what they want (perhaps the particular authority to which they wanted to turn in the case of later problems), pick the language in which they wanted a document written and indeed choose which scribe to hire in the first place. For example, it seems to have been a definite choice to have P. Yadin 18 and P. Hever 65 written in Greek. While our knowledge about Salome Komaise and Yeshua is more limited, we know Judah could potentially have drawn up a Jewish Aramaic contract not unlike his own for his daughter and son-in-law if he had wanted to. He did not, perhaps because the couple themselves expressed a preference for a Greek language contract.32 Illiteracy too would not deprive parties of power: a document’s content can be read back, or even verbally translated while it is being drafted and amended as requested. But that being said, we should acknowledge the extra filter in drawing up the documents and be willing to problematize the level of the parties’ control over the exact phraseology of their own contracts, particularly when we place such weight on the interpretation of such phrases. Ultimately, these were the products of a collaboration between scribe and litigant and that collaboration can help to explain the features of the documents.

  • 33 His handwriting has been described as that of a skilled and practised writer, though he was “not a (...)
  • 34 Some caution is needed here in applying the label “Jewish” retrospectively, since later inclusion (...)
  • 35 Hanson 2005, p. 93.
  • 36 Judah’s financial situation has often been assessed to have been poor based on the fact that: a) i (...)

12The normality of hiring scribes makes the fact that Judah drew up his own marriage contract himself all the more significant.33 Errors notwithstanding, the document shows considerable skill and knowledge. Though not skilled to the level of a professional scribe, it is possible that Judah had the relevant literacy skills and legal knowledge to draw up such a contract and did so. This would then demonstrate a rather high degree of familiarity with those traditions and practices which have traditionally been classified as “Jewish,” or which, at any rate, later came to be included in Mishnaic regulations.34 It has already been noted that such literacy skills could have been part of what attracted the rich widow Babatha to Judah,35 though this was based on an unfavourable assessment of Judah’s financial state that might now need to be reviewed.36 But beyond this, if this were an original composition it would also attest a level of legal competence in a Jewish legal ordering within this community, that we could attribute to someone outside of the scribal profession.

  • 37 Wise 2015, p. 321-322; citation at p. 321.
  • 38 P. Yadin 26, lines 7-8: ἀνδρός μου καί σου ἀ̣[πογενομένου]; cf. lines 13-14.
  • 39 This is a contentious subject, and there is strong division over whether this is a case of polygam (...)

13However, another possibility is that Judah copied a model of some sort, simply changing the relevant details. The slips are then copyist errors. This has been suggested recently by Michael O. Wise in a more general study of literacy in the Judaean desert documents: Judah could have copied from a “handbook of notarial practice” or a ketubbah that was in the family archives.37 Indeed it is plausible that Judah had access to such a document. We know he had another wife, Miriam, so perhaps he duplicated the (entirely hypothetical, it should be pointed out) ketubbah that might have been drawn up for his marriage to her. Chronology is a sticking point here since we do not know which marriage occurred first: Judah’s marriage contract to Miriam was not found in the Babatha archive, but if Shelamzion was indeed his daughter by Miriam (as is universally assumed though nowhere actually stated in the papyri) then it seems fairly certain that his marriage to Miriam came first. The marriage is in fact only mentioned in documents written after his death. In these, Judah is referred to by both Babatha and Miriam as “my and your late husband,”38 a phrase that seems to attest the practice of polygamy among second century Jews.39 But if we do assume that Judah copied his own former contract (or another model or some sort), this would have serious implications for our assessment of his personal knowledge of the relevant legal formulae. All this still, however, means that there was some sort of expertise in this kind of tradition available in this community and potentially that this was transmitted through the preservation of documents within a private, familial context.

  • 40 The possibility has even been raised that P. Hever 65 was simply a dowry receipt: Katzoff 2005, p. (...)
  • 41 Cotton 1994, p. 82, has already emphasized the different ideas underlying the marriage settlement (...)

14To return to the Greek contracts: it has already been emphasized that these show significant differences in formulation and perhaps also purpose. While one seems to have been drawn up at the start of the marriage (P. Yadin 18), in the other (P. Hever 65) the couple were already living together; the differences in the opening formulations have already been noted.40 Thus, there were more than one type of “Greek” contract available for use and which were actually employed by people in this community. Whether this also could suggest variety in how the institution of marriage itself was conceived in this region is another matter, but it could at least be documented rather differently even within the Greek language.41

  • 42 The western abutter to the property is listed in P. Yadin 2, lines 4 / 23 as “the houses of Taḥaʾ, (...)

15This variation in how the contracts were drawn up could in fact stand in contrast to the practice we find in other types of contract from the same archives. In comparison to the Greek language marriage contracts, three sales contracts (i.e. three contracts used for the same purpose) from the Nabataean Kingdom are also found in the archives: P. Yadin 2, 3 and P. Hever 2. These were all written in Nabataean Aramaic, and they are remarkably similar in format. This is perhaps not surprising for P. Yadin 2 and 3, which are written by the same scribe and separated only by a month. The seller is also the same in each contract, a Nabataean woman named ʾAbiʿadan, and appears to be selling the same (or perhaps a slightly expanded) package of land, though to different purchasers.42 As such, a close resemblance between the contracts seems rather natural: when the first sale fell through, it would have been reasonable for ʾAbiʿadan to approach the same scribe later to draw up a new contract, and that he might use the same template to do so, making the necessary alterations to the details. But the principals in P. Hever 2 have no apparent connection to those in P. Yadin 2 and 3, making this a rather separate transaction. In this document, a woman called Shalom sells land in Maḥoz Eglatain to a certain ŠʿDLY for the sum of seventy-five selas. The form of the contract is not identical to P. Yadin 2 and 3 but it is remarkably similar in format and in the clauses and phraseology it employs, suggesting that there was some sort of standard model for sales contracts in this era. The level of variation at any rate is not nearly as great as we find in the marriage contracts in the archives in general, nor even between just the two Greek marriage contracts.

  • 43 Both P. Yadin 2 and 3 refer to a leasing tax which was to be paid to the king by the seller until (...)

16The practice of drawing up contracts was therefore not entirely uniform across the archives and across periods. Several factors might explain this. The first is that there were different practices, and perhaps different attitudes, towards different kinds of contracts. Sales of land, such as those contracted above, do not seem to have been so variable. One explanation for this might have been that a tax was payable to the Nabataean monarch on property such as that documented in these sales contracts:43 this requirement might have led people to use a more fixed form, which could have served as a safeguard in case proof of tax-payment were ever demanded. Thus the lack of variability in this type of contract in the earlier era may plausibly be attributed to the closer connection to the state (i.e. through the tax) in these transactions.

  • 44 This is not to deny an influence by the ruling power, which will be outlined below: simply this wa (...)
  • 45 It should be noted that a document was not necessarily required for the formation of a legal marri (...)
  • 46 Lewis in Lewis – Katzoff – Greenfield 1987, p. 230.
  • 47 It is ungrounded to assume, with Katzoff in Lewis – Katzoff – Greenfield 1987, p. 237, that Cimber (...)

17Marriage, however, was a private legal transaction, in which the state (Nabataean or Roman) would have no fundamental interest in and of itself: no tax is applied, and here we are not dealing with prohibited unions of different social status, for example. Furthermore marriage might have elicited rather different feelings and obligations: this is an area with more potential for different embedded indigenous customs to meet, conflict and be negotiated outside of direct and immediate state constraints, concerns or guarantees.44 We have already seen that different circumstances were involved in Shelamzion and Salome’s marriages, but that also means there were different possibilities for documenting a marriage in the first place, and different contracts to meet the purpose.45 Variable generational preferences could also have played a role in this: the Greek language contracts have been used as possible evidence of the “Hellenizing tendencies” of the younger generation, if the interpretatio Hebraica were not followed.46 The Hellenizing label is problematic however; in what ways does using the Greek language in a contract indicate “Hellenization” (in the more culturally-loaded sense it is frequently used in the modern literature)? Still, there is certainly a difference between Judah and Babatha’s choice of contract and that of Shelamzion and Judah Cimber, whose composition was separated by only a few years (mid to late 120s CE and 128 CE respectively). Accounting for the language choice by reference to the groom alone based on his Romanized name also seems unsatisfactory;47 this was a man who himself wrote in Jewish Aramaic, so any assumption of a general preference for Greek language, custom, law or anything else needs to be approached with great caution.

  • 48 Legal pluralism was of course not an invention of the Romans: this Jewish family had its roots in (...)
  • 49 There are possible references to archives in P. Yadin 19, lines 26-27, P. Yadin 20, lines 13/35-36 (...)

18The other possibility is that the legal situation became more complex, or more plural, after the Roman annexation and practices changed to reflect that.48 The details of this need to be unpicked in greater detail: what, exactly did this plurality entail, and how was awareness of these multiple options spread and how were they used? A key point here is that more formulary models were in circulation: unless we suppose that the scribes in question invented the two Greek forms themselves, they were very likely to have been acquainted (at least) with models, which could then be adapted as they saw fit. Here, greater plurality within the same kind of document in the same language is of vital significance for any assessment of levels of legal expertise in the area. It was not just one, single new option that was added to the mix; rather a variety of (Greek) forms became available that do not seem to have been in use in the Nabataean era. If the scribes were connected to the Roman administration – as may have been the case for someone described as a λιβλάριος – then we can posit a variety of formulae available within this province, or at least a level of legal expertise that went beyond one type of form for one type of transaction. In a relatively new province, this is a significant point to note in tracing the extent and manner of the spread of legal knowledge in a new language: it is based heavily on the circulation of paperwork, and model formulary contracts. These models also seem to have been stored and transmitted in a more state-orientated context: if we accept the above construction of P. Yadin 10’s composition, the model from which Judah worked was likely kept within the family rather than in a local administrative archive.49

19The reasons for the increase in plurality in the Roman period also merit further interrogation. Nabataea was still a client kingdom prior to the annexation, and as such had some sort of contact with the Roman imperial centre, though this could have been limited in extent and more confined to the royal household and associates. The vital missing ingredient in terms of the wider population would have been the court of the Roman governor, which toured assize-centres of the province distributing justice (in theory at least) to those who approached it. This was of course the ideal; in reality this system was full of practical problems, including potentially high costs for litigants to travel to the assize-centre, and lengthy delays while they waited around, hoping their case would be heard. But if the more immediate presence of the Roman authorities, and indeed of a Roman court, is the crux in creating a greater number of legal options, that has significant implications which need to be teased out. The court was there to adjudicate and settle disputes if approached: there was no obligation for peregrines to do so. If they did choose to have recourse to this particular legal forum, we might naturally expect paperwork that was intended to be submitted to it to conform to what provincials thought were Roman expectations and/or preferences. From their perspective, meeting such expectations would be sensible: when hoping to win a case, one would naturally try to conform as far as possible to the preferences of the judge(s) in order to create a favourable impression.

  • 50 These more widespread ramifications of the Roman court’s presence are explored in more detail in C (...)

20Marriage contracts, however, are not bound up with such disputes, or not initially at least, and as such it is not immediately clear why the availability of a Roman court in and of itself would lead to a sudden plurality in different kinds of such contracts. Indeed, the fact that there were now such contracts written in Greek would suggest that even at the time of writing, provincials were looking ahead to potential problems and how these might have to be resolved. Their choice of Greek would therefore be just in case they needed to have later recourse to a court which preferred Greek (probably in this case the Roman court) at a later date, and so even when not immediately anticipating the use of this legal forum, they opted to take into account its perceived linguistic and legal preferences right from the start. In other words, the availability of justice in a Roman courtroom had a wide-ranging effect on the way people drew up the documents from early on in the provincial era, an effect that went beyond those papyri that were directly and immediately intended for this particular court. Instead, the Roman presence began to influence the ways that people conducted their legal business even in contracts that had nothing to do with it. None of this was directly imposed by the Roman authorities; these actions represent choices made by the litigants themselves.50

21Furthermore, the availability of expertise that may have been on offer at the peripheries of the court could have had an effect on the way that contracts were drawn up. Writers and legal advisors working for the administration, Roman soldiers who brought their own conventions, even new traders or travellers passing through the province and conveying different spheres of knowledge as they came could all play a part in influencing the way in which people conducted their legal transactions and the multiplicity of forms that were available. Knowledge of Greek language contracts and formulations did not come from nowhere, nor spring up overnight, and since they appear under the Roman administration, this is a likely place to find the expertise involved in transmitting them (at least initially).

22Yet this picture is not universal. While the Roman court presence could, and probably did, have such far-reaching effects on the conduct of legal business, even within this small community and even within the single sphere of marriage there were significant variations. Let us not forget that P. Yadin 10 was written in the Roman era too, and yet seems to take no similar account of Roman preferences or envisage such a potential forum should problems arise in the future. This speaks to the options that were not only available to provincials in this area but were actually employed. It also has interesting implications for assessments of the “provincialization” process, since it evidences very different interactions with the Roman authorities not just within the same province or even community, but within the very same family and even, if we compare this with Babatha’s other paperwork, by the very same individuals. Babatha’s marriage contract, with its apparent lack of such concern for eventual possible recourse to the Roman authorities, represents quite a shift in attitude from what she seems to exhibit in her other transactions. Her apparent willingness to approach the Roman court in her dispute with the guardians of her son, Jesus (P. Yadin 12–15, 28), is well documented but she also conducts other business in Greek: she sells a date crop through two Greek language contracts, for example (P. Yadin 21–22). Judah’s influence is insufficient explanation for the choice of marriage contract, since he too also conducts business in Greek (P. Yadin 17 and 19), even among his own family members. We should perhaps therefore be careful in classifying peoples’ attitudes and behaviour towards their imperial overlords in entirely uniform or consistent terms.

Conclusions: Legal knowledge, its transmission and the coming of Rome

  • 51 For example, Jones 2007, p. 1340-1341, briefly considered the possibility of the involvement of ju (...)

23The very existence of multiple legal traditions in the same kind of documents testifies to the availability of very specific expertise in this region. P. Yadin 28–30, the Roman formula on guardianship, has been used in the past as the most obvious evidence of some kind of Roman legal know-how,51 but the differences we find even within marriage contracts written in the same language is equally important evidence of this kind of legal, even if not specifically Roman, expertise.

24Furthermore, there appears to be a difference between the transmission of knowledge in the Greek documents and in P. Yadin 10. In the latter, Judah himself is either the original source of the legal material or the mediator of it (if he acted as copyist). In either case, he has a much more hands-on role in transmitting legal material than the parties do in the Greek documents. If the “copyist” method is adopted – and it does seem highly plausible – then we might trace a similarity in the reliance on past examples for transmitting knowledge of both the Jewish Aramaic and Greek legal forms. The difference lies in how these were kept, and the context in which they were made available: while examples of the Greek contracts may have travelled and arrived in Roman Arabia with the new imperial regime, the Jewish Aramaic may have originated from a more familial, private context. This might be reason to consider whether different traditions had different methods of passing on legal knowledge and information. In any case the alternative ways in which parties could be involved with the creation of their documents should perhaps give greater pause in the future.

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Notes

1 See Cotton – Cockle – Millar 1995, p. 214-235, for a survey of the evidence up to that year.

2 For a larger scale study of the archives using this methodological approach, see Czajkowski 2017: this essay serves as something of a small-scale case study.

3 The literature on this is vast, but both Oudshoorn 2007, and Katzoff read many of the documents as conforming to “Jewish law”. Katzoff’s work on the marriage contracts will be cited throughout, but for his approach to another type of contract, see also Katzoff 1994 on P. Yadin 19; for the earlier Hebrew version, see idem 1990. Hannah M. Cotton’s work on the archives should also be noted, and frequently stands in opposition to Oudshoorn and Katzoff: see for example Cotton 1993, p. 94-108, in which she preferred a Roman framework as a best-case solution in certain disputes.

4 The translation of the ancient terms is extremely problematic, though less important than the actual sense in which the words were used. Wasserstein 1989, p. 123, makes some extremely sensible comments on this, in response to Katzoff 1987, p. 239-240.

5 These do not represent the only marriage contracts to have come out of the Judaean desert corpus: see also, for example, P. Hever 69, a cancelled marriage contract (Greek); possibly P. Hever 11, though this is very fragmentary (Jewish Aramaic); P. Mur 20 and 21 (Aramaic); P. Mur 115 a remarriage contract (Greek); and P. Mur 116 (Greek). The reason for focussing on these particular documents is that they originate from two family archives, which in turn come from the same village. They thus testify to the choices of one specific, identifiable small community and more than that, of two seemingly connected families within the very same village: see Cotton and Yardeni 1997 on the connections.

6 See Meyer 2007, p. 53-82 on the format of the documents. Cotton 2004, p. 52-54 provides an excellent overview of this phenomenon in the Near East; more broadly on double documents and for further examples, see inter alia Koffmahn 1968; Wolff 1978, p. 57-80; Turner 1978, p. 28-44; Boswinkel – Pestman 1982, p. 176-181, 190. On the demise of the double document in Egypt, see Yiftach-Firanko 2008, p. 203-218, who includes a summary of earlier views.

7 Originally published in Yadin – Greenfield – Yardeni 1994, p. 75-101; see also the re-publication in Yadin – Greenfield – Yardeni 2002, p. 118-141.

8 Judah appears as Babatha’s guardian in documents written in 125 CE (see P. Yadin 14, lines 22-23 and P. Yadin 15, lines 31-32) though is not explicitly described as Babatha’s husband until 21 February 128 CE (P. Yadin 17, lines 4 / 22).

9 On these clauses, see Lapin 2013, p. 79-92, especially at p. 82-83.

10 The relevant passage of the Mishnah is m. Ketubbot 4:7-12. See Yadin – Greenfield – Yardeni 1994, p. 84 for a list of elements commonly found in ketubbot.

11 Originally published by Lewis – Katzoff – Greenfield 1987.

12 On ἔκδοσις, see Yiftach-Firanko 2005, p. 67-84, and idem 2003, p. 3-6, 45-46, 59-63; see also Mélèze-Modrzejewski 1981, p. 231-268. From the Judaean desert corpus, P. Hever 69 (lines 3-5) also contains this clause.

13 P. Yadin 18, lines 8-9 / 40-41.

14 This addition to the dowry by the groom is one of the points that has proved contentious to interpret: Wasserstein 1989, p. 114, argues for a comparison with the institution in Graeco-Egyptian marriage contracts of donatio ante nuptias in dotem redacta, where the husband contributes an additional amount; Katzoff sees this as specifically Jewish based on the prescription in m. Ketubbot 6:3 (Lewis – Katzoff – Greenfield 1987, p. 242).

15 Katzoff in Lewis – Katzoff – Greenfield 1987, p. 241 translated this phrase as “according to the laws,” and argued that the writer was thinking of “Jewish” law at this point; Oudshoorn 2007, p. 408-409 concurred; Wasserstein 1989, p. 113, disagreed. Katzoff 1991, p. 173 did later concede that his case was “weak” on this point, though defended his overall interpretation of the document.

16 Lewis – Katzoff – Greenfield 1987, p. 233 translate this as “in accordance with Greek custom” (cf. the edition of Lewis 1989, p. 80); Wasserstein 1989, p. 108, in discussing this phrase, refers to “Hellenic law and/or custom” (though he does not give this as a direct translation: see idem, p. 123 on the issue of translation). Katzoff 1991, p. 174-176, later defended his reading, arguing the sense of the phrase here is “in the Hellenic standard of living”.

17 The term is used six times in these archives, by two different scribes (in P. Yadin 15, 17, 18, 20, 21 and 22). Its exact meaning is contested: Lewis 1989, p. 64, Isaac 1992, p. 73-74, and Schams 1998, p. 211 read this as a Greek rendering of librarius; Bowersock 1991, p. 339, instead read it as rendering libellarius.

18 Originally published in Lewis 1989, p. 130-133, as P. Yadin 37; re-published with considerable revisions in Cotton – Yardeni 1997, p. 224-237. All description and references to the text here is to Cotton and Yardeni’s revised version unless otherwise stated.

19 Lewis, 1989, p. 130, read the document as the former, consequently restoring εἰληφέναι in line 4; Cotton and Yardeni 1997, p. 225-226, convincingly dispute this restoration in favour of the latter option. It should be noted that Yiftach-Firanko 2005, p. 77 has argued for Lewis’ reading.

20 Originally raised and dismissed by Lewis 1989, p. 130, preferred in the edition by Cotton – Yardeni 1997, p. 228-229.

21 Preferred by Lewis, 1989, p. 130. Katzoff originally suggested this interpretation to Lewis, and fiercely defended it in Katzoff 2005 (see p. 134).

22 Ilan 1993, p. 247-264.

23 Lewis 1989, p. 132, translates this as “in accordance with Greek custom and Greek manners”; cf. Cotton – Yardeni 1997, p. 232 who opt for the same, though change “manners” to singular. Katzoff 2005, p. 136, reads the phrase in the same way as the similar wording in P. Yadin 18, namely as referring to a Hellenic standard of living.

24 See, for example, Wasserstein 1992, p. 67-68, who supports this; see also Cotton 1994, p. 82.

25 See Katzoff in Lewis – Katzoff – Greenfield 1987; Katzoff 1991; Katzoff 1995 a, p. 37-45; Oudshoorn 2007, p. 398-438; Katzoff 2005; slightly less emphatically, Yiftach-Firanko 2005, p. 83.

26 Cotton 1994, p. 81 has already observed more specifically with regard to the clause providing for male and female children in such contracts, “One may detect a lack of uniformity regarding this clause in contemporaneous documentary marriage contracts between Jews, which suggests that things were then still in a state of flux”.

27 Oudshoorn 2007, p. 434 [my italics].

28 Aside from P. Yadin 18, he wrote P. Yadin 13-17, 32.

29 Literacy levels varied considerably in the ancient world, meaning that a straightforward label of “illiterate” or “literate” is probably so over-simplified in most cases as to make it just plain wrong. The bibliography on this is extremely large, but notable works include Harris 1989, to which the series of responses in Beard et al. 1991 should be noted; Bowman – Woolf 1994; Woolf 2000, p. 875-897 and Bagnall 2012. On Jewish literacy in the Graeco-Roman era, see especially Hezser 2001 and Wise 2015.

30 Yiftach-Firanko 2005, p. 83 raises the possibility that the inclusion of the ἔκδοσις clauses “may be attributed to the conservatism of the scribes in this region,” though prefers an alternative explanation; Wasserstein 1989, p. 115-116, also briefly considers notarial practice, in response to Katzoff’s (in Lewis – Katzoff – Greenfield, 1987, p. 247) suggestion that a Jewish writer used models from formulae-handbooks in order to draft the contract. While the use of formulae handbooks in general should not be entirely dismissed out of hand (contra Wasserstein, though he dismissed this only with regard to this contract), this interpretation still does not quite get to the heart of the exact nature of the interaction between scribe and litigant and the implications of this for understanding the document(s).

31 See the comments by Kelly 2011, p. 38-39, on such issues in the Egyptian papyri; cf. Bryen 2013, p. 63, on this.

32 This might be due to a multitude of factors. A different reaction to the new Roman presence from that of Judah would be the most obvious: Greek would make the contract easier to use in a Roman court later, should problems develop (see below).

33 His handwriting has been described as that of a skilled and practised writer, though he was “not a professional scribe” (Yadin – Greenfield – Yardeni 1994, p. 77; Lewis – Katzoff – Greenfield 1987, p. 248; citation from Yadin – Greenfield – Yardeni 2002, p. 118). He also repeats certain words and phrases in the course of composing the document, and makes various slips in his composition: For example, in line 15 he repeats the last word of the preceding line (ואם); there is also a possible repetition of the word מאה (hundred) at the beginning of line 9. There are also quite a few errors: the epigraphic notes and commentary in Yadin – Greenfield – Yardeni 2002, p. 128-141, give a detailed account of these.

34 Some caution is needed here in applying the label “Jewish” retrospectively, since later inclusion in the Mishnah does not necessarily make these clauses specifically “Jewish” in the earlier period: the sages included elements of practice that were found more generally in the Near East.

35 Hanson 2005, p. 93.

36 Judah’s financial situation has often been assessed to have been poor based on the fact that: a) in P. Yadin 17 he acknowledges that he has three hundred denarii on deposit from his wife, Babatha, which he is to repay on demand; b) in P. Yadin 11, when Judah borrows money from Magonius Valens, the sum of forty denarii is crossed out and replaced with sixty in the inner text, a fact that Lewis 1989, p. 41 interpreted as evidence of “a usurious squeeze exerted upon the borrower”. This has convincingly been refuted by Esler 2014, p. 5, who points out that the equivalence sum – fifteen staters – is uncorrected in the inner text and is equivalent to the sum of sixty denarii: the correction was simply of a scribal error. As such, Judah’s financial situation may not have been as dire as is usually thought.

37 Wise 2015, p. 321-322; citation at p. 321.

38 P. Yadin 26, lines 7-8: ἀνδρός μου καί σου ἀ̣[πογενομένου]; cf. lines 13-14.

39 This is a contentious subject, and there is strong division over whether this is a case of polygamy or serial monogamy. For the former interpretation, see Lewis 1989, p. 23-24, Bowersock 1991, p. 337, and Goodman 1991, p. 174. Katzoff 1995 b, p. 128-132, disagrees, preferring to interpret the situation as one of serial monogamy; cf. the response to this proposition by Lewis 1997, p. 152.

40 The possibility has even been raised that P. Hever 65 was simply a dowry receipt: Katzoff 2005, p. 143.

41 Cotton 1994, p. 82, has already emphasized the different ideas underlying the marriage settlement in Greek and Aramaic contracts: “They [Greek documents] embody and reflect an essentially different marriage settlement from that which is reflected and embodied in the Jewish marriage contract written in Aramaic”.

42 The western abutter to the property is listed in P. Yadin 2, lines 4 / 23 as “the houses of Taḥaʾ, daughter of ʿAbad-Ḥaretat,” while in P. Yadin 3, lines 4 / 26 it is “the houses of Ḥunainu, son of Tayim-ʾIlahi, and the houses of Taḥaʾ, daughter of ʿAbad-Ḥaretat”. It is possible that the parcel of land was extended in the second contract (cf. Yadin – Greenfield – Yardeni – Levine 2002, p. 202) or that some of the houses on this side of the plantation had been sold in the intervening month.

43 Both P. Yadin 2 and 3 refer to a leasing tax which was to be paid to the king by the seller until the land in question had been registered with the authorities: see P. Yadin 2, lines 13-14 / 37-38, P. Yadin 3, lines 14-16 / 40-42.

44 This is not to deny an influence by the ruling power, which will be outlined below: simply this was perhaps of a different nature.

45 It should be noted that a document was not necessarily required for the formation of a legal marriage: see Wolff 1939, p. 27, 51-58. The point here is that there were options for such documentation.

46 Lewis in Lewis – Katzoff – Greenfield 1987, p. 230.

47 It is ungrounded to assume, with Katzoff in Lewis – Katzoff – Greenfield 1987, p. 237, that Cimber was a Roman citizen, an assumption that seems to be based on nothing more than his Roman-sounding name.

48 Legal pluralism was of course not an invention of the Romans: this Jewish family had its roots in the pre-Roman era, and Jewish practices were thus a potential option under the Nabataean monarch.

49 There are possible references to archives in P. Yadin 19, lines 26-27, P. Yadin 20, lines 13/35-36, P. Yadin 24, lines 4-6: see the comments by Cotton 1998, p. 169-170.

50 These more widespread ramifications of the Roman court’s presence are explored in more detail in Czajkowski 2017.

51 For example, Jones 2007, p. 1340-1341, briefly considered the possibility of the involvement of jurists in Babatha’s affairs. More specifically, Biscardi 1972, p. 140-151, suggested that these formulae (P. Yadin 28-30) may have originated from a Greek handbook of formulae.

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University of Edinburgh - K.Czajkowski@ed.ac.uk

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