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Legal engagement

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

Legal pluralism under empire

Imperialism and the creation of local law

The case of rabbinic law

Yair Furstenberg

Abstract

Following the destruction of Jerusalem in 70 CE and the imposition of a direct Roman rule over Palestine, the rabbis transformed the corpus of biblical commandments, Judean legal practices and customs into a comprehensive and detailed legal system. How can we explain the surprising fact that it was specifically under Roman jurisdiction that Jewish law emerged for the first time as a cohesive and codified system of civil law? In this article I argue that rather than functioning as an ideological or utopian construct, the creation of rabbinic law under Rome follows a familiar pattern well attested in the study of indigenous law under colonial rule. Scholars have recurrently described the development of local legal practices into fixed and formal legal systems, following colonial standards, thus triggering the invention of colonized “customary law”. In a similar manner, papyrological evidence attests to the crystallization of a corpus of “laws of the Egyptians” during the second century CE. Rabbinic material, however, offers the most detailed account of the processes by which the diversity of local customs characteristic of the pre-Roman period transformed into a fixed and general system of law at the hands of local experts. The article surveys three aspects of rabbinic legal innovation that feature elements of colonized “customary law”: the creation of new legal fields, codification of custom, and the establishment of a Roman-like court procedure. Together, these elements reflect the rabbinic effort to transform normative practices of different sources into a comprehensive legal system befitting imperial legal landscape.

Full text

1Following the disintegration of Judean political structures with the destruction of Jerusalem in 70 CE, and the reorganization of Roman administration in the province of Judea, the rabbis transformed the corpus of biblical commandments, Judean traditions, and legal customs into a comprehensive and detailed legal system. It was particularly during this period, as Roman imperial power reshaped judicial practice and legal atmosphere in the provinces, that rabbinic law came into being. Although it drew in part from earlier traditions and judicial practices, as a whole it was a new creation, forming a comprehensive rule of law, which was clearly distinct from all legal discourses of the Second Temple period. What then was the role of Rome in the creation of a new system of Jewish law? Despite the accumulating evidence for the influence of Roman legal presence on various aspects of rabbinic law, we still lack an account of the over-all impact of this legal environment on rabbinic law-making.

2In this essay I argue that not only were the rabbis exposed to a Roman legal environment and implemented various elements from it, but that the very formation of a local system of civil law was a direct result of the provincial situation, and it was intended to offer a viable option under Roman jurisdiction. In some sense, we cannot speak of a cohesive and codified system of “Jewish” civil law before the population of the province of Judea/Syria Palaestina was brought under direct Roman jurisdiction. In a manner familiar from the study of indigenous law within the legal pluralism of colonial rule, the rabbinic material reveals a variety of strategies for making space for its own law within the confines of the Roman government. Working within the framework of the scholarship on colonialism and law, I suggest a reappraisal of rabbinic legalism, and its function under imperial power.

New features of rabbinic legalism

  • 1 See Cohen 2007; cf. Baer 1952.
  • 2 Hezser 1997; Schwartz 2001, p. 103-128; Lapin 2012, p. 98-125.
  • 3 Berkowitz 2006; Dohrmann 2008; Rosen-Zvi 2017.

3While earlier scholarship often uncritically projected rabbinic law back to earlier periods, the novelty of much of the rabbinic legal system is now widely acknowledged.1 Furthermore, in addition to building upon earlier Jewish legal traditions, the rabbis also developed a highly sophisticated and detailed form of legal discourse. Paradoxically the development of a legalist discourse came hand in hand with the demise of political authority. Taking into consideration the growing impact of Rome over the Jews in Palestine, recent scholarship has tended to depict the rabbis in the image of philosophers or legal theorists, whose teachings were primarily ideological and restricted to their relatively small academic circles. Since they lacked institutionalized authority over their fellow Jews,2 the rabbis of the Mishnah, this thinking goes, preferred celebrating an alternative imaginary order rather than offering practical means to negotiate the current legal circumstances.3 Their activity seems to have been driven primarily by the rabbinic aspiration to acquire some spiritual authority within a disintegrating Jewish society under Roman rule.

4The works of Hayim Lapin, Moshe Halbertal, and Natalie Dohrmann highlight particular features of this new ideologically constructed discourse, offering complementing approaches for explaining the paradoxical expansion of a seemingly nonfunctional legal discourse at this stage. However, I will argue that the evidence shows us that far from being merely theoretical, rabbinic literature reflects familiar features of the development of local law under imperial rule, and therefore that the rabbis were not operating in the realm of ideas – theological, jurisprudential, or philosophical – but they were also developing viable legal options which suited current juristic discourse and could function within the new legal environment.

Creating civil law

  • 4 Lapin 1995a; Lapin 1995b.
  • 5 Lapin 1995a, p. 167.

5In his work on tractate Bava Metz‘ia and rabbinic civil law, Hayim Lapin pointed out the fundamental gap between the mishnaic treatment of issues such as deposits, loans, labor, and lost objects and the evidence from Second Temple literature.4 He persuasively argues that although the Torah is concerned with these issues, they remained in the form of ethical demands and were not developed prior to the rabbis into a system of civil law. Writers of the Second Temple period alluded to biblical instructions concerning the appropriate behavior toward fellow Israelites and their property, but these references did not provide more than a form of “moral guidance,” associated with the acts of charity and social responsibility.5

  • 6 Lapin 1995a, p. 173-181. There are only very few statements in tractate Bava Metz‘ia, as well as i (...)

6Lapin further argues for the relatively late appearance of an identifiably “Jewish” civil law. Not only does it scarcely appear in Second Temple sources, and never generates discussion or polemic, but there are indications within the rabbinic sources themselves that it is a relatively late development.6 Clearly, one may assume (although we do not have much direct evidence) that during the Second Temple period and under Hasmonean rule in particular, courts in Judea would have dealt with property, contracts, and other aspects of civil law in accordance with prevailing practices and customs. However, there is no indication that these were associated with the commitment to the Torah or that they were identified as belonging to a unique Jewish system, let alone that these practices were codified in any manner.

  • 7 Lapin 1995a, p. 170-171.
  • 8 Lapin 1995a, p. 172.
  • 9 Lapin 1995a, p. 182.

7Furthermore, according to Lapin, this legal situation continued into the second century with the rise of the rabbinic movement. The documentary evidence from the Judean desert, primarily that of the Babatha archives, indicates that legal practice in Judea continued to provide a flexible array of solutions that were hardly exclusively Jewish, but rather belonged to a wider legal koine.7 Lapin therefore concludes: “[The Mishnah] is the product of scholars who undertook a detailed analysis of the economic relations of the world around them in the context of a deeply entrenched religious world view”.8 Rabbinic civil law is an ideologically motivated mediation on civil law intended to provide a utopian picture of a world that has never existed.9 In his view, if rabbinic law does not reflect legal reality, even if it does disclose some resemblance to familiar practices, on the whole it can only be an ideal construct that is not intended to navigate within the current legal circumstances.

8Putting aside for the moment the validity of the sharp dichotomy between documentation and utopia, the question remains, what motivated the rabbis in the first place to create a new comprehensive and self-sufficient system of civil law? Why were the rabbis concerned to cover grounds that were not regulated by biblical commandment, and were not previously understood to be essential for a Torah guided life? Possible motivations are suggested in the more recent works of Halbertal and Dohrmann.

All-encompassing normative space

  • 10 Halbertal 2013.
  • 11 Halbertal 2013, p. 2-3.
  • 12 Halbertal compares rabbinic discourse to the Qumran law. Although their rulings were more stringen (...)

9According to Halbertal,10 although prerabbinic sources abound with legal traditions and concerns for meticulous observance of the Torah, they lack what in his view has come to be the most basic feature of halakhic activity: the spreading and thickening of normative instructions over all spheres of human activity. An essential feature of biblical and Second Temple law is the concentration of legal instructions in particular areas, such as the Temple or festivals, while other spheres of action are relatively thinly populated or untouched. The rabbinic halakhic endeavor in contrast is directed toward populating all spheres with high-resolution instructions, regardless of their religious weight.11 This does not necessarily mean a more stringent position,12 but a more regulated one. Law thus governs all, and it maps all quarters.

  • 13 Halbertal 2013, p. 22-23.

10Comparison to earlier Second Temple legal sources reveals, Halbertal argues, that the dense rabbinic law is not a result of an inevitable accumulation of laws through the generations but rather of a revolutionary religious sensitivity. The constant thickening of the normative web becomes an end to itself. The rabbinic scholar is less concerned to manage within the real world or to offer loci of religious significance than to create a parallel world of study that is carefully described to the smallest detail. This consciousness is independent of particular time and space, and offers a religious approach released from the confusion of historical instability and social turmoil. The rabbinic choice to find recourse in an alternative world of study spawned the expansion of normative orders over all spheres of law. Although Halbertal does not refer to civil law in particular, his theory serves to explain the rise of this new legal field as well, as a component of the rabbinic theoretical construction. In his view, the rabbinic revolution at its core is an attempt to accommodate to a world without a Temple, creating a so-called traveling Temple of Halakhah.13

Exclusivity of legal discourse

  • 14 Dohrmann 2013. As Dohrmann points out, even the stringent Qumran literature does not reflect such (...)

11To the previous features of rabbinic law, Dohrmann adds the distinct uniformity of early rabbinic literature as legal literature in comparison with the multiplicity of earlier Jewish genres. Both Mishnah and Midrash reflect a relatively uniform literary production of the rabbinic schools, that pressed into its rigid legally-oriented patterns a wide variety of traditions from distinct sources. This is in stark contrast to the proliferation of literary forms and styles of Second Temple literature (or of contemporary Christian sources).14 Thus, despite the undisputed role of Torah theology in shaping Jewish identity during the Second Temple period, Jewish legalism, as the privileged category of religious concern, was a rabbinic product.

  • 15 Kelly 2012, p. 244-286.
  • 16 Dohrmann 2013, p. 77: “By embracing a distinctive legality as their central discursive paradigm, t (...)

12The most obvious candidate for inspiring this revolution according to Dohrmann was the legal idiom of Roman imperialism. The Roman Emperor propagated law and order; provincials often accessed Roman legal administration for the sake of dispute resolution;15 imperial power displayed itself through the publication of edicts and the establishment of courts. Most significantly, the governor himself provided legal remedy to all inhabitants who approached him. The provincials would have recognized the rising role of the legal expert within this administrative system, upon which the governor’s court depended. The prestige of these jurists would have served as a model for the rabbis as a subelite seeking public recognition through legal expertise. The rabbis thus identified the political power of legal discourse to create authority, and assimilated this idiom of power and government. The rabbis followed the Roman model and displayed themselves in the same garb as the imperial authorities in order to achieve a comparable status.16

  • 17 Elsewhere, Dohrmann explains the rabbinic insistence on the oral medium of their teaching as a for (...)
  • 18 Rather than examining the ideological benefits of producing a legal discourse, the pertinent quest (...)

13By viewing Roman legalism as a model for the rabbis Dohrmann offers an insightful solution for the paradoxical relationship of the rabbis with their imperial surrounding. While expressly holding on to a resistant stance toward Rome, they were mimicking their idioms of power.17 Indeed, the correlation between the role of law in imperial self-representation and the rise of rabbinic legalism is suggestive. At the same time, by focusing solely on rabbinic interest in employing law as an idiom of power, Dohrmann seems to overlook the concrete incentives of the indigenous population to formulate a distinguishable system of law under imperial rule.18

  • 19 There is plenty of evidence for Greek elites pursuing legal studies alongside more traditional cul (...)

14Indeed it is vital to note that in the context both of the Roman provinces and in relation to patterns observable more widely in colonial situations, the rabbinic turn to law is not unique. It is only expected that within the imperial situation some local elites would develop a legalistic jargon and immerse in a hyper-legal culture – and not merely as a conceptual exercise.19 After all, the role of such mediators of legal knowledge only grows as a result of the dissolution of local traditional institutions. Local population was in need of legal experts who could translate and mediate the diverse practices and interests that characterize the state of affairs during the second and third centuries in Palestine. Paradoxically, the imposition of a foreign legal system catalyzed the transformation of local practices into a coherent and stable system that replaced previous institutions as local judges and scribes, and could serve to clarify the modes of action for the local populace in face of Roman jurisdiction. I argue that this exact process is discernable in early rabbinic literature.

Colonialism and indigenous law

  • 20 Merry 1991, p. 897.
  • 21 Merry 1991, p. 901-903.

15In her survey of scholarship on law and colonialism, Sally Engle Merry points out the recurring argument that colonial situations often trigger the invention of local “customary law”: “One of the major insights produced by works on law in colonial situations is that the customary law implemented in ‘native courts’ was not a relic of a timeless precolonial past but instead an historical construct of the colonial period”. Furthermore, she writes, “the nature of the law changed as it was reshaped from a subtle and adaptable system, often unwritten, to one of fixed, formal and written rules by native courts”.20 This description resonates strikingly with rabbinic material of the second century. The fluidity of precolonial (for Merry, as well as pre-Roman Judean) legal practices adaptable to internal consideration and power relations, did not meet the standards of the colonizers and was consequently transformed by emerging elites into a fixed construct of formal rules that were fixed to specific colonized groups. Inevitably, local law under colonial rule was not only stabilized and systematized but it was substantially renewed. What was considered “customary law” emerged through the negotiation of colonial authorities with locals attempting to manage these transformations to their own benefit.21

  • 22 This distinction underlies the chapter division in Hooker 1975, ch. 2-3. Merry 1991 combines the t (...)
  • 23 The self-image of British colonial officials as facilitating the evolution of indigenous laws into (...)

16Although Merry fuses together the different forms of “customary law,” we should actually distinguish between two different models of colonial impact on the development of indigenous law, against which we can later consider their relevance to describing the situation in Palestine under Rome. In the first case a written and recognizable system of jurisprudence, such as Hindu law and Islamic law, came under British colonial supervision and authorization. The second is the colonial treatment of “tribal” law, which was essentially perceived as being of a different nature than the governing legal system, and was subsequently transformed in order to fit into the dominant colonial system of law.22 Studies of British colonialism in Africa and India demonstrate how an initial policy of colonial intervention gave way to an alternative approach of supporting local courts, while instigating different modes of legal development. While Rome did not intend to directly impose its own legal standards on the inhabitants of the empire or work to transform their legal system in a manner characteristic of modern colonial powers,23 we may still be able to identify parallel elements in both colonialist models.

  • 24 Following Cohn 1989 (repr. in Cohn 1996, p. 57-75).
  • 25 Cohn 1989, p. 137.
  • 26 Cohn 1989, p. 147.

17The British considered the written systems of Hindu or Muslim law, in India or Africa, as ensuring stable governments founded upon ancient and stable legal traditions. It was therefore in the interest of colonial rule to secure their continuing jurisdiction. At the same time, the implementation of these systems was subjected to British supervision and incorporation into colonial statehood, which ultimately reshaped their form and nature. In the Indian case,24 British officials presided over both criminal and civil courts, both of which were administered according to local law. In civil cases the administrator was completely dependent on the local legal experts to mediate and interpret the sources of Hindu and Muslim law.25 However, since British officials had to be in a position to check up on the native interpreters, the legal source would finally be made accessible to them through a multi-stage project of translation and codification. This process involved the exposure and extraction of authoritative sources in order to transform the complex body of traditional knowledge into a manageable corpus following familiar topical divisions and legal categories. Topics that the British considered as merely ethical or religious were excised from the legal compilation, thus creating a civil code that would primarily address issues that were pertinent to British conception of law and their power to collect taxes: ownership rights and transmission of property.26

  • 27 Yadudu 1991.
  • 28 Messick 1993, p. 54-72, outlines the critique against the traditional forms of the Shari'ah, and t (...)

18Evidently then the transformation of existing legal traditions was not motivated merely by a need for better communication of the law to litigants, but it directly served colonial interests. Colonial rule thus transformed the nature of the local legal system even when local judges continued to administer their own courts, as in the case of the Shari’ah courts in North Nigeria.27 Besides the imposition of a British penal system in criminal cases, the application of Islamic law was ultimately subjugated to the needs of British legal administration. New forms of appointing judges and colonial control over legal training resulted in a deep change of the profile of the judges in the Shari’ah courts. Administrators replaced the traditional experts, and the new court system encouraged them to apply a new set of jurisdictional considerations. Most significant among these was the imposition of the system of precedent, foreign to the traditional Shari’ah commitment to the ancient sources of Islamic law. While it served to strengthen the structure and cohesiveness of the colonial court system, it completely transformed the nature and form of the legal discourse. Notably, both Indian and African cases demonstrate the tendency of colonial rule towards a simplification and reduction of the complex legal traditions from multiple sources into manageable set of accessible rules for the sake of stability and integration into the colonial system.28

  • 29 Chanock 1985, p. 53.
  • 30 Moore 1992, p. 16.

19Turning to the second model, even when considering native law as underdeveloped, the British acknowledged the need to maintain tribal customs. In these cases, however, the transformation of earlier practices into a recognized form that could be integrated into the colonial structure had far-reaching implications. From the colonizers’ perspective, preserving a fixed set of customs in some spheres ensured social stability without being constrained by the current interests of the authoritative elders.29 In addition, the colonizers could encourage the development of the local custom in the general direction of the mature British law as a major component of the more extensive “civilizing mission”.30 They limited the application of these customs to what the British perceived to be core tribal values, while at the same time regulating other legal spheres. From the colonized perspective, the emergence of “customary law” alongside and in competition to state law radically transformed the nature and contents of their own traditions.

  • 31 See Chanock 1985, p. 62 quoting Read: “The inherent nature of colonial rule made it impossible to (...)
  • 32 Moore 1992, p. 28.
  • 33 Chanock 1985, p. 182.

20On the most basic level, integrating “customary law” into the structure of colonial rule inevitably transformed the nature of its authority.31 Furthermore, the production of handbooks of traditional law changed the dynamics of litigation. The traditional mode of African jurisdiction was concerned with balancing interests and managing disputes over a very long period through the consideration of the changing power relations and agreeable resolutions.32 As a result, ownership categories were essentially fuzzy and were governed by tribal and patrilineal micropolitics. Under colonial rule, native courts were expected to administer a codified form of customary law by transforming these social practices of dispute management into fixed "rules" of inheritance and individual rights. In addition, the determination of fixed rules through the survey of tribal customs served to strengthen tribal divisions. Through the process of reflection, description and codification each tribe was associated with a fixed set of binding practices.33

  • 34 The tasks of the imperial lawgiver, according to Hailey, were “the provision of a law of crimes, o (...)
  • 35 Chanock 1985, p. 51.
  • 36 Moore 1989, p. 288.
  • 37 Moore 1986, p. 190-209.

21The scope of “customary law” was artificially delimited through the interests of colonial power,34 but this in turn served to create new venues for the resolution of traditional legal concerns that were presumably beyond the jurisdiction of the native courts. They did not waive their traditional dispute management practices, but rather created new arenas for settling them. Thus, while criminal cases were transferred to state courts, African courts in response found ways to administer these cases through the civil side of customary law.35 The scope of customary law extended beyond its initial intended scope also due to the deep changes in economic structures brought about by colonial rule.36 While the British intended the native courts to address particular traditional cases, particularly family law, succession, and land tenure, the fact was that issues of “customary law” occupied a small proportion of these courts’ activities, and emerging practices of loan and cash transactions were decided in these courts based on the chiefs’ experience.37

22As we proceed to consider the situation of Jewish law in Palestine – and the role of the emerging rabbinic elites in its development – against the background of these models, we should pay attention to the unique status of these laws. Admittedly, Jews in the Roman period took pride in their ancient constitution, but at the same time this legal tradition did not develop a recognizable system of civil law. Thus, the imposition of Roman control over Palestine created a paradoxical situation, which encouraged the adherents of local legal practices in Palestine to draw elements from both models in order to ensure the preservation of their former set of practices. Rome severed Jewish judicial institutions of their autonomy, and therefore local legal practices could be preserved only by reestablishing them in a new form.

Legal pluralism under Rome

  • 38 See Stolte 2001; Kantor 2012, p. 79-80; Kantor 2015. Kantor as well refers to the modern colonial (...)
  • 39 On the evolution of the “legal pluralism” from the study of colonial societies to other contexts, (...)
  • 40 Compare Brunt 1965.
  • 41 The notion of humanitas encapsulates Roman civilizing ethos; see Woolf 1998, p. 48-76; Woolf 1994, (...)
  • 42 Ando 2014, p. 11; cf. Lintott 1993, p. 54-65.
  • 43 Egypt: Alonso 2013. Palestine: Cotton – Eck 2005; Cotton 2001.
  • 44 Crook 1967, p. 283; Galsterer 1986; Humfress 2011, p. 35.

23What can the vast scholarship on indigenous law under modern colonial rule contribute to the study of law in the Roman empire? Admittedly, we possess only a fragmentary image of the mixtures of Roman and local law in the provinces (even in Egypt where we have vast documentary material);38 thus studies on legal pluralism in the Roman world have incorporated some insights from modern colonial cases, while avoiding applying these models wholesale.39 After all, there are obvious differences between Rome and modern colonial powers with respect to the spread of citizen rights among their subjects on the one hand and their degree of bureaucracy and active intervention in local order on the other.40 However, the application of insights from the study of colonialism and law becomes quite useful when examining the responses of those who could have in fact experienced Rome as promoting some form of a civilizing mission, and seeking to exchange local practices with a mature legal system.41 While Roman emperors granted some privileged communities, such as particular Greek poleis, the autonomy of applying their own laws,42 the inhabitants of Egypt and Palestine were brought under the direct Roman jurisdiction of the governor’s court.43 At the same time, Rome avoided imposing her laws and institutions directly on the peregrine inhabitants, so it had to somehow take into consideration and regulate their local practices.44

  • 45 Bowman – Rathbone 1992, p. 125.
  • 46 On the employment of local law by the Roman governors see Ando 2016, p. 290-291.

24Each of the legal arrangements generated a different dynamic in the development of local courts and laws, and here the comparison to the modern cases becomes useful. On one level, the situation in regions requiring direct centralized supervision (possibly through local representatives)45 resonates with the modern evolution of “customary law” among colonized communities as means for delineating spheres for implementing local practices.46 In addition, the rabbinic case exhibits features from the Indian colonial model as well, due to its image of an established legal tradition that both locals as well as administrators had the interest to fit into recognizable legal categories. Thus rabbinic sources offer a unique combination of the different modes of transformation of local laws.

  • 47 Yiftach Firanko 2009.

25A helpful point of departure for understanding the creation of rabbinic law seems to be the development of the category of the “Laws of the Egyptians” in second-century documents, parallel to the first appearance of rabbinic civil law. Whereas first-century appeals to Roman officials did not refer to the “Laws of the Egyptians” as a relevant source of law, in second-century documents it was brought into play by the local litigants, as in the cases enumerated in the famous appeal of Dionysia. According to Yiftach-Firanko, the “Laws of the Egyptians” were a written collection of customs of different ethnic backgrounds that was compiled by local experts to serve the Roman judges as an authoritative and more or less coherent representation of indigenous, non-Roman legal practices.47 Once it was compiled, it served the litigants of whatever origin to promote their cases and it was available for interpretation and development by local experts.

  • 48 Bryen suggests comparing the nomikoi to the Hindu and Muslim experts employed by British colonial (...)
  • 49 This admittedly is a contested point since Roman authorities did not formally recognize local cour (...)
  • 50 Anna Dolganov has further argued that this corpus took shape in Roman courts and therefore display (...)
  • 51 We may therefore wonder, whether from the Roman point of view this corpus in fact corresponded to (...)

26While other scholars have questioned the existence of a defined “code,” locals in their dealings in Roman courts increasingly relied on the “Laws of the Egyptians”. This corpus was not compiled immediately with the imposition of Roman jurisdiction over Egypt, and litigants appeal to this source of law only toward the second century. Ari Bryen discussed the possible reasons for this delayed development, pointing out the parallel rise of the nomikoi, the local legal experts during this period.48 He links these phenomena to contemporary trends in Roman legal thought, as well as to the interests of Roman officials to ease off legal administration by devolving law-making back to local communities.49 Most of all, however, it seems reasonable to assume that this corpus evolved gradually as the local population learned to employ the force of their own customs in the Roman courts and to formulate it in an acceptable manner. Once it was formulated, the Romans could accept the appeal to local law instead of creating a separate solution, as long as it did not contradict some basic principles.50 Thus as in the case of colonialist “customary law,” the “Laws of the Egyptians” was a locally fabricated construct of imperial times, rather than a representation of pre-Roman customary law.51

27Admittedly, the material relating to the “Laws of the Egyptians” is quite meagre, and it provides only a narrow view of the role of this corpus in the legal practice in Egypt as it functioned in cases of appeal to the Roman judges. But how did the formation of this corpus during the second century reflect back on the dealings of non-Romans among themselves in Egypt and on the way they conceived of their own “system” of law? Here the rabbinic material comes to our aid.

  • 52 Furstenberg 2018b; Furstenberg 2019.

28As I have shown elsewhere, the practice of appealing to Roman courts on the basis of local law was not limited to Egypt. We find traces of this practice in Palestine as well, and it is alluded to in the sayings of early second-century rabbis.52 Consequently, both Roman authorities and the local litigants had a clear interest to both regularize and publicize local law. As in the colonial cases, the flexible and diverse system of local courts and customs characteristic of the pre-Roman period was bound to change into a fixed and general system of law at the hands of local experts who were capable of the task. Thus, considering the basic similarity between Egypt and Palestine with respect to the status of local law under Roman jurisdiction, we may further hypothesize on the basis of the rich rabbinic material some of the channels by which local practices were transformed into a system of law.

Creation of rabbinic “customary law”

  • 53 Baron quotes Augustine who writes that all the nations accepted Roman law, but the Jews maintained (...)
  • 54 Baron 1937, vol.2, p. 299-301. As an internal testimony to Roman supervision over rabbinic law-mak (...)
  • 55 Daube 1944.

29The possibility that rabbinic law underwent some form of codification in order to cope with the challenges posed by Roman government has been introduced in the past. Salo Baron suggested that although Roman law did not penetrate into what was presumably already a developed system of Jewish law,53 at the same time Roman presence facilitated the codification of the Jewish law in the Mishnah, so as to make Jewish law more accessible to imperial officials.54 While for Baron, Roman presence merely instigated the rabbis to present Jewish law in a form of a legal manual, David Daube went on to attribute the organization of major legal fields to the Roman environment.55

  • 56 Following the division of the Babylonian Talmud, the original tractate of thirty chapters has been (...)

30In his analysis of the tractate Neziqin,56 the basic rabbinic code of civil law, Daube points out the revolutionary separation of private law in the Mishnah from sacral, public, and criminal law – setting it in stark contrast to biblical law. The primary achievement of the Mishnah is the very delineation of the field of private law. Daube attributes this innovation to the threat posed by Roman law:

  • 57 Daube 1944, p. 359. See also p. 365.

In a time when Roman private law […] grew steadily in influence, it was no doubt essential to oppose to it a solid and coherent Jewish private law. It is very uncertain whether Jewish private law, Jewish Volksrecht, would have withstood the law of the empire Reichtrecht, if the rabbis had not succeeded in detaching it from sacral law and public law and giving it a prominent place of its own.57

  • 58 Compare Messick 1993, p. 58.

31On one level, Daube thus describes the process of creating a separate civil code in a manner similar to the transformation of Hindu and Muslim legal sources into a separate corpus of civil law.58 At the same time, he adds the assumption that the organization of private law by the rabbis served as a locus of anti-imperial resistance.

  • 59 On the relevance of talmudic law for the study of the relationship between Reichsrecht and Volksre (...)
  • 60 Possibly in contradistinction to issues of marriage, status and inheritance, which betray a differ (...)
  • 61 Such an interest is apparent in the mishnaic reformulation of earlier laws of status in m. Qiddush (...)

32Both Baron and Daube assume that the laws of the Mishnah reflect Jewish Volksrecht (the law in practice of a minority).59 This may be true of particular elements, but as we have seen above we in fact lack substantial evidence for the existence of an exclusive and fixed system of civil law prior to the Mishnah (in contrast to the adjustable and varied remedies which were most probably offered by Judean courts during the Second Temple period, as we noted above). In light of what we know about the development of indigenous law in colonial contexts, we can further argue that not only were laws not organized in any systematic manner but that Jewish law as such – as a centralized set of fixed rules governing Jews’ financial and commercial interactions60 – had not yet come into being. Thus, the codification of “customary law” is not only a matter of communication with Rome, as in cases of recognized ancient legal traditions,61 or a form of anti-Roman struggle, but a characteristic means of integration into the imperial order of legal pluralism.

33In what follows I will briefly survey three aspects of rabbinic legal innovation that feature elements of “customary law” (in the colonial sense): (a) filling out new legal fields following a Roman model; (b) codification of custom; (c) creating a Roman-like court procedure. Together, these elements reflect the rabbinic effort to transform normative practices of different sources into a comprehensive legal system befitting an imperial legal landscape.

a) New legal fields

  • 62 Josephus, A.J. 4, 196-302.

34Comparing the Mishnah to all preserved earlier Jewish sources, from the Hebrew Bible to Second Temple literature including Qumran law and Josephus’s survey of the Judean constitution,62 the most striking innovation of the rabbis is the comprehensiveness of their legal scope and the subsequent creation of new fields of law. As in cases of colonial rule surveyed above, this is most apparent with respect to issues concerning ownership rights and transmission of property. The Mishnah regulates at length the conditions for performing sales, for leasing and renting, what is included in the sale of property, how to divide property, and what is considered a breach of a contract. Significantly, as far as we can tell from the evidence we have, Jews managed quite well up until this point without the need of fixed and formulated rules on these particular issues, which were in all probability regulated by custom, changing norms, and ad hoc rulings. The rabbis were the first within the Judean tradition to codify an all-encompassing system.

  • 63 m. Bava Metzi‘a chapters 1–2 lay out the conditions for acquiring a found object, while the biblic (...)
  • 64 As Amit Gvaryahu (2019) has recently demonstrated, the rabbis transformed the biblical prohibition (...)

35Though much rabbinic civil law has biblical roots, it has as a collective undergone substantial revision by the rabbis, who systematically employed biblical commandments concerning fair treatment of the fellow for the sake of defining issues of ownership and contracts. Thus for example the commandment to return lost objects becomes in the Mishnah a locus for reflecting upon the conditions for transmitting ownership, and the warning against overcharge is used for defining the conclusion of a sale contract.63 Much rabbinic exegetical energy is invested in reframing scant biblical sources into detailed civil law.64 However, while in such cases the separation of exegesis from tradition and innovation requires fine analytical tools and their details may be disputed, we can easily discern cases of complete innovation.

  • 65 On the organizing principles of the tractate, see Furstenberg 2020.
  • 66 Compare Gaius, Inst. 3, 135-162 on the kinds of consensual contracts.

36A survey of the thirty chapters of tractate Neziqin reveals the Mishnah’s gradual departure from Scripture-based topics such as delicts and damage to issues that have no biblical foundation at all. In the first half of the tractate, the Mishnah closely follows the biblical order of the topics, concentrated mainly in Exodus 22–23 and Deuteronomy 22–25,65 while the second half is dedicated to the main forms of contract, letting and hiring, partnership and neighbors, and sale,66 none of which has any biblical foundation. The structure of the tractate, which neatly separates between the two groups of laws, indicates that the Mishnah is well aware of the difference between the two sections. No less telling, however, is the fact that some of the mishnaic classifications correspond to Roman legal categories.

  • 67 For the current needs, I am bracketing textual complexity resulting from the grafting of this unit (...)
  • 68 This unit is dominated by the use of the nominative absolute (article+participle). See Lapin 1995b (...)

37Chapters 6–9 in tractate Bava Metzi‘a combine four forms of contracts within a single thematic unit.67 It opens with hiring workers and services, followed by hiring of livestock. The latter part of chapter 8 lists cases of house letting, and all laws in ch. 9:1-10 open with the phrase, “If a man leased a field from his fellow”. The laws in all four issues: hiring workers and services, hiring livestock, letting houses and leasing fields, feature a fixed opening formula, uncommon in other sections,68 they are demarcated within clear thematic boundaries, and address a similar set of issues: what are the conditions for fulfilling the contract and what is considered a breaching of the contract. The Mishnah first relates to workers who retreated from their agreement, or demanded to change its conditions. Then it turns to hirers of cattle who acted not in accordance with the initial conditions, and the responsibility of the owner to supply an animal. Changing of conditions is the issue also with respect to house rental, and land lease as well, in what cases is the land owner responsible to supply other land. Another typical issue is the responsibility for the damage done to someone else’s property, during these transactions: the hired ox, the cloths being prepared, the rented house or leased land.

  • 69 This parallel has been partially noted by Daube 1944, p. 383.
  • 70 See the discussion in Du Plessis 2012, p. 9-14.
  • 71 An additional aspect of the rabbinic creation of law is obviously the creation of legal literature (...)

38This range of cases in this unit corresponds to a single category in Roman law, the consensual contract of locatio conductio.69 Textbooks of Roman law distinguish between three subforms of this contract: letting of things (rei), hiring workers (operis), contract of services (operarum). However, as evident from the sources incorporated in Digest 19, 2, earlier Roman jurists did not maintain such a classification, and all cases belonged to one single legal category, which covered a wide range of distinct contractual relationships.70 Thus we find a telling correspondence between the clearly demarcated literary unit in the mishnah, and the Roman category of locatio conductio. Considering the nature of this similarity, it seems most probable that the Roman taxonomy set the model for the rabbinic formulation of this new legal field. Since there is nothing self-evident about this grouping of all these cases into one legal category, the mishnaic adoption of this organizing principle seems to betray the role of Roman law in the expansion of rabbinic law onto new legal spheres.71

b) Codification of custom

  • 72 See Alonso 2013 (Egypt); Humfress 2011 (Eastern Provinces).
  • 73 Dig. 1, 3, 34 (de officio proconsularis): “When it appears that somebody is relying upon a custom (...)
  • 74 Bryen 2012, p. 797 describes in detail the construction of such “customary law” by local nomikoi b (...)
  • 75 m. Bava Metzi‘a 9:1-10; t. Bava Metzi‘a 9:1-33.

39As mentioned above, the transformation of flexible customs into a fixed law stood at the heart of the creation of “customary law,” whose boundaries were strictly delineated by colonial rule. In a similar vein, scholars have noted how local practices were integrated into Roman jurisdiction and recognized as law through their labeling as custom.72 Ulpian for example suggests one possible procedure for recognizing those local customs that have been fixed in previous legal proceedings.73 The creation of a recognized corpus of custom was thus pertinent for the preservation of local practices under imperial rule.74 I would argue that the rabbis were aware of the need to authorize customs by transforming them into fixed laws, and they suggested other means for formulating them as such. This is neatly demonstrated in the sections of the Mishnah and Tosefta dealing with contract of land lease.75 A recurring theme in these laws is that the local customs have a binding force. Thus we read in m. Bava Metzi‘a 9:1:

If a man leased a field from his fellow and the custom of the place was to cut the crops, he must cut them; if the custom was to uproot them he must uproot them; if the custom was to plough after reaping, he must plough. Everything should follow local custom.

40Notably, the Mishnah has nothing to add to the accepted practices (supposedly within Palestine), and it just confirms its authority by fixing it in a formal authoritative “text”. In the cases specified in the Tosefta as well the features of the lease are determined by custom and the rabbis only confer upon them a new status, within the system of rabbinic laws of contracts:

  • 76 t. Bava Metzi‘a 9:20-21; see also sections 11 and 18. Compare the parallel conditions in m. Bava M (...)

[20] He who leases a field of figs from his fellow – in a place in which they are accustomed to chop the figs, he must chop. In a place in which they are accustomed to dry them, he must dry them; if they are accustomed to make them into pressed figs, he must make them into pressed figs and he is not allowed to diverge from the custom of the place. [21] He who leases a field of vegetables from his fellow – in a place where they are accustomed to sell the vegetables in the market, he sells them in the market; in the field – he sells it in the field, and he is not allowed to diverge from the custom of the place.76

41It is further possible to trace the route by which an accepted practice acquired a status of codified law. Within current documentary habits these customs took a particular literary form. Therefore, the rabbis relied not only on familiar practices but on the language of written leasing documents, as we learn in Mishnah 3. “If a man leased a field from his fellow and he let it lie fallow, they assess how much it was likely to have yielded and he must pay the owner accordingly, for thus such a lease prescribes: ‘If I suffer the land to lie fallow and do not till it I will pay thee at the rate of its highest yield’”. In this case the Mishnah translates the formula of the document into a legal casuistic form, thereby ratifying the standard document within the now codified framework of the laws of lease.

  • 77 Yadin et al. 2002, p. 39-41, 65-70.

42In consideration of the rabbis’ reliance on both custom and documentary practices, we may fully trace the development from custom through document to canonized law by comparing the Mishnah with a lease document from the Judean desert. In P. Yadin 46 of 134 CE, a certain Yeshua declares that he is leasing property from two partners, Eleazar and Eliezer, and he specifies his subsequent duties.77 These include the following (ll. 5-8):

  • 78 The Hebrew text applies the broad Greek term nomos, whose meaning ranges between custom and law. W (...)

I (undertake to) sow the cropland and I will pick the date palms as is customary. And I shall gather in for my use all of those fruits and the crop that will come into existence in that sit, until such time as the fruit season at Ein Gedi will reach its end, both of vegetables and of trees, as is customary.78

  • 79 Strikingly, this feature appears also in documents of land leases from the Fayyum during the Roman (...)
  • 80 See m. Bava Batra ch. 4–5 on sale. Compare Gulak 1994, p. 118-123. Gulak shows that sale documents (...)
  • 81 See m. Bava Batra 1:1-2.

43As in the Mishnah and Tosefta passages quoted above, the exact scope of the lessee’s duties is governed by custom.79 Significantly, the lessee states explicitly in the contract that he will do the work “as is customary” and he authorizes this practice through this written declaration. The Mishnah then adopts the formulae of the documents and ratifies it. This kind of implicit reliance on the language of contracts and its transformation into a law explains other cases in the Mishnah that seem to reproduce what would have already been spelled out in the written contracts.80 Even when the rabbis add on to the basic custom and explicate its implications, their starting point is the ratification of the custom as authoritative.81 This rhetoric is best understood, I would argue, within an emerging legal discourse, seeking to expand its normative scope and establish the legal authority of its customs.

c) Court procedure

  • 82 See in particular Moore 1986, p. 148-167; Moore 1992; Yadudu 1991.
  • 83 Early sages explicitly relate to capital punishment as an impractical issue (m. Makkot 1:10), and (...)
  • 84 The Mishnah applies the term sanhedrin for courts dealing with corporal cases and for the high cou (...)

44The third aspect of the creation of civil law under colonial rule is the institutionalization and improvement of court procedure. As we saw above, this is a standard aspect of colonial attempts to regulate local law administration through the reorganization of the court system under a centralized body, appointment of colonial supervisors, and most relevant to us, the adaptation of court procedures to colonialists’ standards and to their image of justice.82 In contrast to modern forms of colonial legal administration, Rome did not create a system of supervision over local courts in an attempt to adjust their proceedings to Roman practices. These were implemented only in the laws of Roman municipiae, as in the case of Irni, to be discussed below. At the same time, the interest of local elites to exhibit a judicial process that would be deemed acceptable and meet the standards of good governance, particularly in issues of civil litigation that were within their jurisdiction, may explain a peculiar feature of the court system described in Mishnah Sanhedrin (on courts). The tractate starts with specifying the judicial body required for each case, ranging from delicts to corporal punishments,83 and seems to describe an organized, hierarchical (and largely imaginary) court system,84 but when the Mishnah turns to describe the procedure in civil cases it surprisingly turns to an alternative institution (m. Sanhedrin 3:1):

Monetary cases are judged by three:
One party selects one, and the other party selects one, and the two of them select the third. This is the view of Rabbi Meir. But the Sages say, the two judges select the third.
One party disqualifies the judge of the other, and the other party disqualifies the judge of the first. This is the view of R. Meir. But the Sages say, when? When he brings evidence that [the judges] are relatives or ineligible; but if they are eligible or are experts according to the court, he may not disqualify them.

  • 85 The interpretations of the Palestinian and Babylonian Talmuds is discussed at length in Sabato 199 (...)
  • 86 Since the mishnah mentions R. Meir, who was active during the mid-second century, Gulak 1932, vol. (...)
  • 87 The legislation of Arcadius of 398 CE explicitly limits internal Jewish jurisdiction to compromiss (...)

45The procedure of electing and disqualifying judges has puzzled commentators as early as the Talmud.85 Why is this tribunal preferred over a permanent court of experts? Surely, it cannot represent the appropriate and preferred procedure, but only a secondary option. Perhaps this was the result of the loss of judicial autonomy, and therefore the parties were compelled to turn to arbitration,86 deriving its authority solely from the parties’ approval?87

  • 88 Novick 2008.
  • 89 See Greenidge 1901, p. 451-453; Anderson 1927, p. 44-45; Garnsey 1966, p. 182-183.
  • 90 See Rodger 1991. Text published by González – Crawford 1986.
  • 91 In some instances specified in sections 88-89, a group of recuperatores administered the cases. On (...)
  • 92 See Birks 1988, p. 41-45; Metzger 2013, p. 23-25.

46However, while commentators assume that the preferred panel would have been that of the permanent court, in fact, as Tzvi Novick convincingly argued,88 the Mishnah follows the model of Roman civil procedure. Civil cases were administered through a two-stage procedure: first, the praetor formulated the legal issue, and then the parties chose a lay judge from a roster of available judges, to determine the relevant facts. The Roman practice of “rejection of jurors” (reiectio iudicum) is alluded to in Cicero’s orations, and the principle of eliminating judges from a list appears in an edict of Augustus from Cyrene (explicitly following the lex Iulia iudiciaria).89 However, the most detailed instructions concerning the choice of judges appear in the Lex Irnitana, a form of Roman municipal law of the Flavian period adapted to the circumstances in the municipium of Irni.90 The magistrate was responsible for composing a list of possible judges. If the parties could not agree upon an accepted judge, they would choose their judge (or judges)91 through a procedure of mutual and gradual rejection. It is commonly assumed that the procedure in Irni was closely modelled after the practice in Rome.92 Mishnah commentators found it hard to believe one had the right to reject a judge chosen by the other party, but this is best explained against the background of Roman practice.

  • 93 On courts in Palestine under Rome see Harries 2010. On the rabbis as arbitrators in civil cases se (...)
  • 94 For example, Mekhilta de-Rabbi Ishmael, Neziqin 1 (ed. Lauterbach, vol. 3, p. 1-3): “And these are (...)

47We do not have any concrete evidence for the implementation of this process among the Jewish population in Palestine, nor does rabbinic literature testify to its existence.93 Furthermore, it appears from the Mishnah itself that as early as the mid second century, the details of this procedure were disputed, and its mechanism seems to have been misunderstood. Nonetheless its mere formulation at this historical point should be understood as an attempt to handle the presence of Roman jurisdiction in the province. We know that some rabbis during that period were concerned lest litigants would turn to Roman courts for remedy, and in response they offered to adjudicate even cases pertaining to non-Jewish law.94 Presumably, for the sake of maintaining Jewish jurisdiction an attempt was even made to shape court procedure according to Roman standards.

  • 95 SEG LV 838; see Kantor 2013 for translation and discussion (quotation p. 85).

48Strikingly, at the very same period we find another local initiative of reorganizing court procedure according to this Roman model. An inscription dated to the turn of the second century from Chersonesus Taurica, on the shore of the Black Sea, documents the counsel’s decree of judicial reform, which adopted the distinctive Roman process of rejection of jurors. As Kantor points out, this case exhibits “the readiness of the Greeks to engage with the Roman model even without being forced by Rome to do so.”95 Although we do not know what this institution looked like in detail for Jews, nor what interests it served in practice, the rabbinic consideration of this civil tribunal at the very same period (beginning of the second century) that this institution was implemented in Roman municipalities as well as by independent poleis, seems to indicate an indigenous motivation to gain recognition within the imperial legal space.

  • 96 Berkowitz 2006, p. 153-179.

49I would argue then that in contrast to Lapin’s binary distinction between legal reality and ideologically motivated reflection on civil law, even abortive rabbinic instructions may reflect an attempt to adjust to current legal standards in order to develop a distinctive legal system within the imperial order (and not against it). The Mishnah testifies to a range of strategies of response to Roman power. While other sections of tractate Sanhedrin dealing with corporal punishments inevitably portray a utopian image of an ideal court, the unique construction of the civil courts in the Mishnah is of a different nature. It does not mimic Roman standards as a form of resistance to Rome, as has been argued with respect to mishnaic description of criminal execution;96 rather it offers a local version of the court system Rome was propagating.

Conclusion

50The few examples discussed in this paper affirm the possibility that the establishment of rabbinic civil law was intended to a large extent to facilitate the formation of a viable and recognizable Jewish legal option within the Roman legal landscape. By comparing rabbinic activity to the development of indigenous law under colonial rule, I have argued that the imposition of imperial power triggered local elites to formulate and systematize their local legal practices mimetically into a fixed legal system. Although we cannot assess the actual impact the rabbis had on their social surrounding, nonetheless their juristic activity follows familiar patterns of legal integration of colonized groups. Despite the fundamental differences between Roman imperialism and modern colonial regimes, mentioned above, this comparison offers a heuristic tool to uncover rabbinic motives, and more importantly to illuminate the trajectory of rabbinic legal development and the forces that shaped it within its concrete legal environment. Furthermore, viewed from this perspective, the rabbinic material offers the most detailed account of the processes by which the diversity of local customs characteristic of the pre-Roman period transformed into a fixed and general system of law at the hands of local experts.

  • 97 For a detailed account of this process, see Furstenberg 2018a.

51Admittedly, the rabbinic attempt to adjust local legal traditions to the imperial situation by mediating a Romanized form of civil law cannot explain all facets of their scholarship and instruction. The rabbis approached this challenge equipped with their own forms of legal expertise. These in turn were rooted in the long tradition of Second Temple legal discourse (which was primarily concerned with ritual issues), where they first took shape. Rabbinic teachings continued to crystalize after the destruction into their familiar mishnaic forms.97 Thus the rabbinic expansion of legal discourse during this period and the creation of civil law as we briefly demonstrated here rested upon a longstanding tradition of exegetical and legal activity. Although it addressed new challenges it represents a distinctive Hebrew style and, following rabbinic ideology, was transmitted orally. Such distinctive features were conceived as essential aspects of authoritative tradition. In contrast to Baron’s suggestion, the rabbis did not codify their laws for the sole intention of making them more accessible to imperial officials. Were that the case, they would not have composed it in Hebrew and insisted on its oral form. Rather, they employed earlier forms of transmission in order to devise a new system of what ultimately was to be considered “customary law”.

  • 98 See above n. 48. For possible evidence for Jewish nomikoi in Caesarea, see Niehoff 2020.

52As the study of indigenous law under colonialism has shown, this kind of situation offered local elites new channels of actions for supporting local interests under the new legal regime through the creation of new legal orders. Throughout this paper I have argued that this historical comparison provides us with the most appropriate framework for understanding the rise of early rabbinic law. Against this backdrop, the novel features of rabbinic legal production that have been surveyed in this article testify to the rabbis’ attempted participation in transforming local traditions and customs into a system of law, that may be identified as well as deployed in context of Roman jurisdiction. Arguably, as in the case of the second-century compilation of “Laws of the Egyptians” and the rise of local legal experts, nomikoi,98 the rabbis sought to provide their fellow Jews with the tools to negotiate their interests within the provincial system by creating a complementary legal system and solidifying their own indigenous “customary law”. To a large degree, then, the rise of rabbinic authority may be attributed to their capability, as an emerging learned elite, to serve as intermediates of Roman legalism, but this story is yet to be told.

Bibliography

Alonso 2013 = J.L. Alonso, The Status of Peregrine Law in Egypt: “Customary Law” and Legal Pluralism in the Roman empire, in Journal of Juristic Papyrology, 43, 2013, p. 351-404.

Anderson 1927 = J.G.C. Anderson, Augustan Edicts from Cyrene, in Journal of Roman Studies, 17, 1927, p. 33-48.

Ando 2014 = C. Ando, Pluralism and empire: From Rome to Robert Cover, in Critical Analysis of Law: An International and Interdisciplinary Law Review, 1, 2014, p. 1-22. 

Ando 2016 = C. Ando, Legal Pluralism in Practice, in C. Ando et al. (ed.), The Oxford Handbook of Roman Law and Society, Oxford, 2016, p. 283-293.

Baer 1952 = I.F. Baer, The Historical Foundations of the Halakha, in Zion, 17, 1952, p. 1-55, [in Hebrew].

Baron 1937 = S.W. Baron, A Social and Religious History of the Jews, New York, 1937.

Berkowitz 2006 = B. Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures, New York, 2006.

Birks 1988 = P. Birks, New Light on the Roman Legal System: The Appointment of Judges, in The Cambridge Law Journal, 47, 1988, p. 36-60.

Bowman and Rathbone 1992 = A.K. Bowman and D. Rathbone, Cities and Administration in Roman Egypt, in Journal of Roman Studies, 82, 1992, p. 107-127.

Brunt 1965 = P.A. Brunt, Reflections on British and Roman Imperialism, in Comparative Studies in Society and History, 7, 1965, p. 267-288.

Bryen 2012 = A.Z. Bryen, Judging empire: Courts and Culture in Rome’s Eastern Provinces, in Law and History Review, 30, 2012, p. 771-811.

Bryen 2016 = A.Z. Bryen, Tradition, Precedent and Power in Roman Egypt, in S. Procházka, L. Reinfandt, S. Tost (ed.), Official Epistolography and the Language(s) of Power, Vienna, 2016, p. 201-216.

Bryen 2019 = A.Z. Bryen, Politics, Justice and Reform in Dio’s Euboicus, in TAPA, 149, 2019, p. 127-148.

Chanock 1985 = M. Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia, Cambridge, 1985.

Cohen 2007 = S.J.D. Cohen, The Judaean Legal Traditions and the Halakhah of the Mishnah, in C.E. Fonrobert, M.S Jaffee (ed.), The Cambridge Companion to the Talmud and Rabbinic Literature, Cambridge, 2007, p. 121-143. 

Cohn 1986 = B.S. Cohn, Colonialism and its Forms of Knowledge: The British in India, Princeton, 1996.

Cohn 1989 = B.S. Cohn, Law and the Colonial State in India, in J. Starr (ed.), History and Power in the Study of Law: New Directions in Legal Anthropology, Ithaca, 1989, p. 131-152.

Cotton 2001 = H.M. Cotton, Jewish Jurisdiction under Roman Rule: Prolegomena, in M. Lahbahn, J. Zangenberg (ed.), Zwischen den Reichen: Neues Testament und Römische Herrschaft, Tübingen, 2001, p. 13-28.

Cotton – Eck 2005 = H.M. Cotton, W. Eck, Roman Officials in Judaea and Arabia and Civil Jurisdiction, in R. Katzoff, D.M. Schaps (ed.), Law in the Documents of the Judaean Desert, Leiden, 2005, p. 23-44.

Crook 1967 = J. Crook, Law and Life of Rome, Ithaca, 1967.

Czajkowski – Eckhardt 2018 = K. Czajkowski, B. Eckhardt, Law, Status and Agency in the Roman Provinces, in Past and Present, 241, 2018, p. 3-31.

Daube 1944 = D. Daube, The Civil Law of the Mishnah: The Arrangement of the Three Gates, in Tulane Law Review, 18, 1944, p. 352-407. Reprinted in C.M. Carmichael (ed.), Collected Works of David Daube, 1, Talmudic Law, Berkeley, 1992, p. 257-304.

Dohrmann 2003 = N.B. Dohrmann, The Boundaries of the Law and the Problem of Jurisdiction in an Early Palestinian Midrash, in C. Hezser (ed.), Rabbinic Law in its Roman and Near Eastern Context, Tübingen, 2003, p. 83-103.

Dohrmann 2008 = N.B. Dohrmann, Manumission and Transformation in Jewish and Roman Law, in N.B. Dohrmann, D. Stern (ed.), Biblical Interpretation and Cultural Exchange: Comparative Exegesis in Context, Philadelphia, 2008, p. 51-65.

Dohrmann 2013 = N.B. Dohrmann, Law and Imperial Idioms: Rabbinic Legalism in a Roman World, in Ν.B. Dohrmann, A.Y. Reed (ed.), Jews, Christians and the Roman empire: The Poetics of Power in Late Antiquity, Philadelphia, 2013, p. 63-78.

Dohrmann 2015 = N.B. Dohrmann, Can ‘Law’ Be Private? The Mixed Message of Rabbinic Oral Law, in C. Ando, J. Rüpke (ed.), Public and Private in Ancient Mediterranean Law and Religion, Berlin, 2015, p. 187-216.

Dolganov 2019 = A. Dolganov, Reichsrecht and Volksrecht in Theory and Practice: Roman Justice in the Province of Egypt (P. Oxy. II 237, P. Oxy. IV 706, SB XII 10929), in Tyche, 34, 2019, p. 27-60.

Du Plessis 2012 = P.J. Du Plessis, Letting and Hiring in Roman Legal Thought: 27 BCE –284 CE, Brill, 2012. 

Furstenberg 2018a = Y. Furstenberg, From Tradition to Controversy: New Modes of Transmission in the Teachings of Early Rabbis, in Tarbiz, 85, 2018, p. 587-641 [in Hebrew].

Furstenberg 2018b = Y. Furstenberg, From Competition to Integration: The Laws of the Nations in Early Rabbinic Literature within its Roman Context, in Diné Israel, 32, 2018, p. 21-58 [in Hebrew].

Furstenberg 2019 = Y. Furstenberg, Provincial Rabbis: Shaping Rabbinic Divorce Procedure in a Roman Legal Environment, in Jewish Quarterly Review, 109-4, 2019, p. 471-499.

Furstenberg 2020 = Y. Furstenberg, From the Literature of Early Halakhah to Roman Law: The Development of Tractate Bava Metzi‘a, in D. Boyarin, V. Noam, I. Rosen-Zvi (ed.), The Disciples of Aaron: In Memory of Prof. Aaron Shemesh: Te'uda, 31, 2020, p. 544-577 [in Hebrew].

Galsterer 1986 = H. Galsterer, Roman Law in the Provinces: Some Problems of Transmission, in M.H. Crawford (ed.), L’Impero romano e le strutture economiche e sociali delle province, Como, 1986, p. 13-27.

Garnsey 1966 = P. Garnsey, The Lex Iulia and Appeal under the empire, in Journal of Roman Studies, 56, 1966, p. 167-189.

González – Crawford 1986 = J. González, M.H. Crawford, The Lex Irnitana: A New Copy of the Flavian Municipal Law, in Journal of Roman Studies, 76, 1986, p. 147-243.

Greenidge 1901 = A. Greenidge, The Legal Procedure of Cicero’s Time, Oxford, 1901.

Gulak 1932 = A. Gulak, Yesode Ha'Mishpat Ha-Ivri, 4 vols., Berlin, 1932.

Gulak 1994 = A. Gulak, Legal Documents in the Talmud: In Light of Greek Papyri and Greek and Roman Law, edited and Supplemented by R. Katzoff, Jerusalem, 1994 [in Hebrew].

Gvaryahu 2019 = A. Gvaryahu, Lending at Interest in Rabbinic Literature: Law, Narrative and Cultural Contact, Ph.D. Dissertation, Hebrew University of Jerusalem, 2019 [in Hebrew].

Halbertal 2013 = M. Halbertal, The History of Halakhah and the Emergence of Halakhah, in Diné Israel, 29, 2013, p. 1-23 [in Hebrew].

Harries 2003 = J. Harries, Creating Legal Space: Settling Disputes in the Roman empire, in C. Hezser (ed.), Rabbinic Law in its Roman and Near Eastern Context, Tübingen, 2003, p. 63-81.

Harries 2010 = J. Harries, Courts and the Judicial System, in C. Hezser (ed.), The Oxford Handbook of Jewish Daily Life in Roman Palestine, Oxford, 2010, p. 85-102.

Hezser 1997 = C. Hezser, The Social Structure of the Rabbinic Movement, Tübingen, 1997.

Hicks 1890 = E.L. Hicks, Inscriptions from Eastern Cilicia, in Journal of Hellenic Studies, 11, 1890, p. 236-254.

Hooker 1975 = M.B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws, Oxford, 1975.

Humfress 2011 = C. Humfress, Law and Custom under Rome, in A. Rio (ed.), Law, Custom and Justice in Late Antiquity and the Early Middle Ages, London, 2011, p. 23-47.

Humfress 2013 = C. Humfress, Thinking through Legal Pluralism: ‘Forum Shopping’ in the Later Roman empire, in J. Duindam et al. (ed.), Law and empire: Ideas, Practices, Actors, Leiden-Boston, 2013, p. 225-250.

Johnston 1987 = D. Johnston, Three Thoughts on Roman Private Law, in Journal of Roman Studies, 77, 1987, p. 62-77.

Kantor 2009 = G. Kantor, Knowledge of Law in Roman Asia Minor, in R. Haensch (ed.), Selbstdarstellung und Kommunikation: Die Veröffentlichung staatlicher Urkunden auf Stein und Bronze in der römischen Welt, Munich, 2009, p. 249-265.

Kantor 2012 = G. Kantor, Ideas of Law in Hellenistic and Roman Legal Practice, in P. Dresch, H. Skoda (ed.), Legalism: Anthropology and History, Oxford, 2012, p. 55-83. 

Kantor 2013 = G. Kantor, Local Courts of Chersonesus Taurica in the Roman Age, in P. Martzavou, N. Papazarkadas (ed.), Epigraphical Approaches to the Post-Classical Polis, Oxford, 2013, p. 69-86.

Kantor 2015 = G. Kantor, Greek Law under the Romans, in E. Harris, M. Canevaro (ed.), Oxford Handbook of Ancient Greek Law, Oxford, 2015 (online publication).

Kelly 2012 = B. Kelly, Petitions, Litigation, and Social Control in Roman Egypt, Oxford, 2012.

Kreuzsaler – Urbanik 2008 = C. Kreuzsaler, J. Urbanik, Humanity and Inhumanity of Law: The Case of Dionysia, in Journal of Juristic Papyrology, 38, 2008, p. 119-155.

Lapin 1995a = H. Lapin, Early Rabbinic Civil Law and the Literature of the Second Temple Period, in Jewish Studies Quarterly, 2, 1995, p. 149-183.

Lapin 1995b = H. Lapin, Early Rabbinic Civil Law and the Social History of Roman Galilee: A Study of Mishna Tractate Baba Mesia, Atlanta, 1995.

Lapin 2012 = H. Lapin, Rabbis as Romans: The Rabbinic Movement in Palestine, 100–400 CE, New York, 2012.

Lieberman 1980 = S. Lieberman, Achievements and Aspirations of Modern Jewish Scholarship, in Proceedings of the American Association for Jewish Research, 46/47, 1979–80, p. 369-380.

Lintott 1993 = A.W. Lintott, Imperium Romanum: Politics and Administration, London, 1993.

Merry 1988 = S.E. Merry, Legal Pluralism, in Law and Society Review, 22, 1988, p. 869-896.

Merry 1991 = S.E. Merry, Law and Colonialism, in Law and Society Review, 25, 1991, p. 889-922.

Messick 1993 = B. Messick, The Calligraphic State: Textual Domination and History in a Muslim Society, Berkeley, 1993.

Metzger 2013 = A. Metzger, An Outline of Roman Civil Procedure, in Roman Legal Tradition, 9, 2013, p. 1-30.

Moore 1986 = S.F. Moore, Social Fact and Fabrications: “Customary Law” on Kilimanjaro 1880-1980, Cambridge, 1986.

Moore 1989 = S.F. Moore, History and the Redefinition of Custom on Kilimanjaro, in J. Starr (ed.), History and Power in the Study of Law: New Directions in Legal Anthropology, Ithaca, 1989, p. 277-301.

Moore 1992 = S.F. Moore, Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running ‘Their Own’ Native Courts, in Law and Society Review, 26, 1992, p. 11-46.

Niehoff 2020 = M. Niehoff, A Hybrid Self: R. Abbahu in Legal Debates in Caesarea, in J. Levinson, M. Niehoff (ed.), Self, Self-Fashioning and Individuality in Late Antiquity: New Perspectives, Leiden, 2020, p. 293-330.

Novick 2008 = T. Novick, The Borer Court: New Interpretations of mSan. 3, in Zutot: Perspectives on Jewish Culture, 5, 2008, p. 1-8.

Rodger 1991 = A. Rodger, Lex Irnitana and Procedure in the Civil Courts, in Journal of Roman Studies, 81, 1991, p. 74-90.

Rosen-Zvi 2017 = I. Rosen-Zvi, Is the Mishnah a Roman Composition?, in M. Bar-Asher Siegal, T. Novick, C.E. Hayes (ed.), The Faces of Torah: Studies in the Texts and Contexts of Ancient Judaism in Honor of Steven Fraade, Göttingen, 2017, p. 487-508.

Rowlandson 1999 = J. Rowlandson, Agricultural Tenancy and Village Society in Roman Egypt, in Proceedings of the British Academy, 96, 1999, p. 139-158.

Sabato 1992 = D. Sabato, A Court of Borerim, in M. Bar Asher (ed.), Jubilee Book in Honor of Rabbi Mordechai Bruer, Jerusalem, 1992, p. 463-485 [in Hebrew].

Schwartz 2001 = S. Schwartz, Imperialism and Jewish Society: 200 BCE to 640 CE, Princeton, 2001.

Stolte 2001 = B.H. Stolte, The Impact of Roman Law in Egypt and the Near East in the Third Century A.D.: The Documentary Evidence. Some Considerations in the Margin of the Euphrates Papyri (P.Euphr.), in L. de Blois (ed.), Administration, Prosopography and Appointment Policies in the Roman empire, Amsterdam, 2001, p. 167-179.

Taubenschlag 1944 = R.R. Taubenschlag, The Law of Greco-Roman Egypt in light of the Papyri, 332 BCE –640 AD, New York, 1944.

Tuori 2007 = K. Tuori, Legal Pluralism and the Roman empires, in J. W. Cairns, P.J. du Plessis (ed.), Beyond Dogmatics: Law and Society in the Roman World, Edinburgh, 2007, p. 39-52.

Woolf 1994 = G. Woolf, Becoming Roman, Staying Greek: Culture, Identity and the Civilizing Process in the Roman East, in Proceedings of the Cambridge Philological Society, 40, 1994, p. 116-143.

Woolf 1998 = G. Woolf, Becoming Roman: The Origin of the Provincial Civilization in Gaul, Cambridge, 1998.

Yadin et al. 2002 = Y. Yadin, J.C. Greenfield, A. Yardeni, B.A. Levine, The Documents from the Bar Kokhba Period in the Cave of Letters: Hebrew, Aramaic and Nabatean Aramaic Papyri, Jerusalem, 2002.

Yadudu 1991 = A.H. Yadudu, Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria, in Journal of Law and Religion, 9, 1991, p. 17-47.

Yaron 1964 = R. Yaron, Reichsrecht, Volksrecht and Talmud, in Revue Internationale des Droits de l'antiquité, 11, 1964, p. 281-298.

Yiftach Firanko 2009 = U. Yiftach Firanko, Law in Graeco-Roman Egypt: Hellenization, Fusion, Romanization, in R.S. Bagnall (ed.), The Oxford Handbook of Papyrology, Oxford, 2009, p. 541-560.

Notes

1 See Cohen 2007; cf. Baer 1952.

2 Hezser 1997; Schwartz 2001, p. 103-128; Lapin 2012, p. 98-125.

3 Berkowitz 2006; Dohrmann 2008; Rosen-Zvi 2017.

4 Lapin 1995a; Lapin 1995b.

5 Lapin 1995a, p. 167.

6 Lapin 1995a, p. 173-181. There are only very few statements in tractate Bava Metz‘ia, as well as in tractate Neziqin as a whole, that are attributed to early sages active during the first century CE. Even when these rabbis are mentioned they only address matters of biblical exegesis, and do not betray a wider approach to these issues (see m. Bava Metzi‘a 3:12). Notably, extensive units of tractate Neziqin include teachings only of late tannaim.

7 Lapin 1995a, p. 170-171.

8 Lapin 1995a, p. 172.

9 Lapin 1995a, p. 182.

10 Halbertal 2013.

11 Halbertal 2013, p. 2-3.

12 Halbertal compares rabbinic discourse to the Qumran law. Although their rulings were more stringent, they did not create such a high resolution legal array. “There is no indication of halakhah as a literary phenomenon in Second Temple literature, nor in external testimonies on these communities” (Halbertal 2013, p. 7).

13 Halbertal 2013, p. 22-23.

14 Dohrmann 2013. As Dohrmann points out, even the stringent Qumran literature does not reflect such a nomicized mindset. Law occupies only a restricted place in their activity and it does not become a matter of constant debate in the scholastic fashion as in rabbinic texts.

15 Kelly 2012, p. 244-286.

16 Dohrmann 2013, p. 77: “By embracing a distinctive legality as their central discursive paradigm, the rabbis assimilate an idiom of control and force”.

17 Elsewhere, Dohrmann explains the rabbinic insistence on the oral medium of their teaching as a form of solution to this paradox. Without confronting the public communication of Roman law, the rabbis set their Oral Torah as an intermediary between the state and the Jews, thereby inhabiting and regulating a parallel city. See Dohrmann 2015.

18 Rather than examining the ideological benefits of producing a legal discourse, the pertinent question is how the legal orientation of the rabbis serve to provide access to concrete modes of action and benefits. Admittedly, Dohrmann’s explanation, while very careful not to presuppose any specific social matrix, and while insisting on a Romanized image of the rabbis, still works within the dominant paradigm, which as we have seen, has growingly marginalized rabbinic involvement in the Romanized public sphere.

19 There is plenty of evidence for Greek elites pursuing legal studies alongside more traditional cultural endeavors. Kantor 2009, p. 264 suggests that legal training was part of the studies at the Mouseion in Smyrna. For an interesting example of a composer of epic and iambic verse who was a nomikos as well, see Hicks 1890, p. 249 and Kantor 2012, p. 62. However, the involvement and development of a legalist discourse was not necessarily a universal impulse among local elites under imperial Rome. As Ari Bryen (2019) has recently demonstrated, Dio of Prusa represents a strain of antilegalism prominent among Greek elites, who avoided the courtroom and sought alternative means to negotiate power relations.

20 Merry 1991, p. 897.

21 Merry 1991, p. 901-903.

22 This distinction underlies the chapter division in Hooker 1975, ch. 2-3. Merry 1991 combines the two models when describing the transformation in the nature of local law (917).

23 The self-image of British colonial officials as facilitating the evolution of indigenous laws into a mature and appropriate legal system is demonstrated in Moore 1992.

24 Following Cohn 1989 (repr. in Cohn 1996, p. 57-75).

25 Cohn 1989, p. 137.

26 Cohn 1989, p. 147.

27 Yadudu 1991.

28 Messick 1993, p. 54-72, outlines the critique against the traditional forms of the Shari'ah, and the attempt of the Ottoman empire to transform it with European legal models and create a sharia derived civil code.

29 Chanock 1985, p. 53.

30 Moore 1992, p. 16.

31 See Chanock 1985, p. 62 quoting Read: “The inherent nature of colonial rule made it impossible to preserve traditional customary rules unchanged, even for customary law came the appearance of new judicial institutions with new personnel. The colonial regime provided new instruments of coercive authority mainly reflecting alien ideas”.

32 Moore 1992, p. 28.

33 Chanock 1985, p. 182.

34 The tasks of the imperial lawgiver, according to Hailey, were “the provision of a law of crimes, of rule of judicial procedure, and a simple form of procedure regulating commercial transaction” (Chanock 1985, p. 51). On this point see Moore 1989, p. 293.

35 Chanock 1985, p. 51.

36 Moore 1989, p. 288.

37 Moore 1986, p. 190-209.

38 See Stolte 2001; Kantor 2012, p. 79-80; Kantor 2015. Kantor as well refers to the modern colonial model. Czajkowski – Eckhardt 2018 offers a comparative analysis of patterns of mixture of Roman and local formulation in documents, as means to characterize their forms of Romanization.

39 On the evolution of the “legal pluralism” from the study of colonial societies to other contexts, see Merry 1988. For the Roman context see the insights in Humfress 2011, p. 44-46; Humfress 2013, p. 248; Tuori 2007, p. 44-45, compares different approaches to legal unification among modern empires. On empires as appropriate models for legal pluralism see Ando 2014. Additional works are mentioned in the following notes.

40 Compare Brunt 1965.

41 The notion of humanitas encapsulates Roman civilizing ethos; see Woolf 1998, p. 48-76; Woolf 1994, p. 119. On the use of this term for advocating Roman values in the courts of Egypt, see Kreuzsaler – Urbanik 2008. Particularly interesting is their quotation of Aulus Gellius 13.17 (in n. 5), who identifies the Latin humanitas with the equivalent Greek paideia. Therefore, Roman legal tradition itself was subject to the qualification of humanitas.

42 Ando 2014, p. 11; cf. Lintott 1993, p. 54-65.

43 Egypt: Alonso 2013. Palestine: Cotton – Eck 2005; Cotton 2001.

44 Crook 1967, p. 283; Galsterer 1986; Humfress 2011, p. 35.

45 Bowman – Rathbone 1992, p. 125.

46 On the employment of local law by the Roman governors see Ando 2016, p. 290-291.

47 Yiftach Firanko 2009.

48 Bryen suggests comparing the nomikoi to the Hindu and Muslim experts employed by British colonial authorities as interpreters (Bryen 2016, p. 210). On the role of experts (pandit) in colonial India see Cohn 1989, p. 137.

49 This admittedly is a contested point since Roman authorities did not formally recognize local courts. At the same time, the burden upon legal administration would have indirectly encouraged the crystallization of such local legal systems.

50 Anna Dolganov has further argued that this corpus took shape in Roman courts and therefore displayed signs of interpretatio Romana in order to appeal to the sensibilities of Roman judges. See Dolganov 2019.

51 We may therefore wonder, whether from the Roman point of view this corpus in fact corresponded to the category of ius gentium.

52 Furstenberg 2018b; Furstenberg 2019.

53 Baron quotes Augustine who writes that all the nations accepted Roman law, but the Jews maintained their own laws (sermon 374, PL 39:1667).

54 Baron 1937, vol.2, p. 299-301. As an internal testimony to Roman supervision over rabbinic law-making, Baron refers to the story of the two Roman officers who disguised to rabbinic disciples in order to examine the quality of Jewish Law (Sifre on Deuteronomy, §344). For a different interpretation of this story as an historical event see Lieberman 1980, p. 373-377.

55 Daube 1944.

56 Following the division of the Babylonian Talmud, the original tractate of thirty chapters has been divided in the printed editions into three “gates,” ten chapters each: Bava Qamma, Bava Metz‘ia and Bava Batra. Medieval manuscripts of the Mishnah still maintain the original structure.

57 Daube 1944, p. 359. See also p. 365.

58 Compare Messick 1993, p. 58.

59 On the relevance of talmudic law for the study of the relationship between Reichsrecht and Volksrecht, see Yaron 1964.

60 Possibly in contradistinction to issues of marriage, status and inheritance, which betray a different dynamic of development.

61 Such an interest is apparent in the mishnaic reformulation of earlier laws of status in m. Qiddushin 3:12, whose Roman-like categories have long been acknowledged.

62 Josephus, A.J. 4, 196-302.

63 m. Bava Metzi‘a chapters 1–2 lay out the conditions for acquiring a found object, while the biblical precept knows only of the possibility of returning the lost property to its owner (Deuteronomy 22:1-5). Chapter 4 of Bava Metzi‘a applies the term ona’ah to denote the possibility to extend the period for completing the sale, in order to evaluate the item’s price. There is no indication however that it is prohibited to overprice, as it appears in Leviticus 25:13: “When you make a sale to your neighbor or buy from your neighbor, you shall not cheat one another”.

64 As Amit Gvaryahu (2019) has recently demonstrated, the rabbis transformed the biblical prohibition of usury from a form of compassion toward the destitute into a principle for evaluating current commercial transactions.

65 On the organizing principles of the tractate, see Furstenberg 2020.

66 Compare Gaius, Inst. 3, 135-162 on the kinds of consensual contracts.

67 For the current needs, I am bracketing textual complexity resulting from the grafting of this unit onto an earlier Scripture-based layer (which includes ch. 7:1-8 concerning workers’ eating rights). See Furstenberg 2020.

68 This unit is dominated by the use of the nominative absolute (article+participle). See Lapin 1995b, p. 67-83. This form is quite rare in previous sections of the tractate, and is characteristic of units dealing with contracts.

69 This parallel has been partially noted by Daube 1944, p. 383.

70 See the discussion in Du Plessis 2012, p. 9-14.

71 An additional aspect of the rabbinic creation of law is obviously the creation of legal literature. The Mishnah as a literary genre has different roots; however, we can identify particular units that closely resonate with Roman legal handbooks. These units are exceptional in their systematic taxonomy, in contrast to the more widespread casuistic style. A case in point is “tractate acquisition” (m. Qiddushin 1:1-5) that follows the structure of Gaius, Inst. 1, 108-123.

72 See Alonso 2013 (Egypt); Humfress 2011 (Eastern Provinces).

73 Dig. 1, 3, 34 (de officio proconsularis): “When it appears that somebody is relying upon a custom either of a civitas or of a province, the very first issue which ought to be explored, according to my opinion, is whether the custom has ever been upheld in contentious proceedings”.

74 Bryen 2012, p. 797 describes in detail the construction of such “customary law” by local nomikoi based on “a vague knowledge of local practices (with a claim that they were indeed law) and a good deal of improvisation”. Particularly illuminating are the examples Bryen supplies of reproductions of ancient legal sources (Egyptian and Greek) under Roman rule in order to establish the existence of local law (p. 794-795). See however Kantor 2012, who underlines the fluidity of Roman categories of law and custom in that period.

75 m. Bava Metzi‘a 9:1-10; t. Bava Metzi‘a 9:1-33.

76 t. Bava Metzi‘a 9:20-21; see also sections 11 and 18. Compare the parallel conditions in m. Bava Metzi‘a 5:5: “Where the custom is [first] to share offspring immediately at birth, they do so; and where the custom is [first] to rear them, they do so”.

77 Yadin et al. 2002, p. 39-41, 65-70.

78 The Hebrew text applies the broad Greek term nomos, whose meaning ranges between custom and law. While the Hebrew context implies custom, in the Greek documents from Nahal Hever it seems to have a different sense. Of interest is P. Hever 17, a document of a loan done in a form of a deposit so it can be demanded at any time. Therefore it states both in Greek (l. 10, 30) and in Aramaic (l. 42), that is it done according to the laws of deposits. See also Taubenschlag 1944, p. 350.

79 Strikingly, this feature appears also in documents of land leases from the Fayyum during the Roman period: “to complete the customary work as appropriate”. See Rowlandson 1999, p. 143.

80 See m. Bava Batra ch. 4–5 on sale. Compare Gulak 1994, p. 118-123. Gulak shows that sale documents specified the parts of property that were sold.

81 See m. Bava Batra 1:1-2.

82 See in particular Moore 1986, p. 148-167; Moore 1992; Yadudu 1991.

83 Early sages explicitly relate to capital punishment as an impractical issue (m. Makkot 1:10), and the whole description of this practice is formulated in past tense as a matter of the past (see m. Sanhedrin 4:3).

84 The Mishnah applies the term sanhedrin for courts dealing with corporal cases and for the high court in Jerusalem, but this term is clearly anachronistic, and it was not in use after 70 CE. The image of a system of courts centered around the Jerusalem high court appears in t. Sanhedrin 7:1, in the name of R. Yosi.

85 The interpretations of the Palestinian and Babylonian Talmuds is discussed at length in Sabato 1992.

86 Since the mishnah mentions R. Meir, who was active during the mid-second century, Gulak 1932, vol. 4, p. 30-32, dates this mishnah to the Hadrianic persecution that prevented the activity of the permanent courts. Therefore, the Jews were compelled to create arbitration courts. However, as Sabato has argued, R. Meir is disputing with the rabbis the meaning of an earlier ruling, which seems to return to the beginning of the second century.

87 The legislation of Arcadius of 398 CE explicitly limits internal Jewish jurisdiction to compromissum through arbitration (Harries 2003). However, this is the result of the later unification of the empire under Roman law, and is not necessarily representative of earlier arrangements. During the early empire, judicial privileges, such as those described by Josephus with respect to the Jewish communities in Asia Minor, were granted locally to civic communities.

88 Novick 2008.

89 See Greenidge 1901, p. 451-453; Anderson 1927, p. 44-45; Garnsey 1966, p. 182-183.

90 See Rodger 1991. Text published by González – Crawford 1986.

91 In some instances specified in sections 88-89, a group of recuperatores administered the cases. On this function see Johnston 1987, p. 67-70.

92 See Birks 1988, p. 41-45; Metzger 2013, p. 23-25.

93 On courts in Palestine under Rome see Harries 2010. On the rabbis as arbitrators in civil cases see Lapin 2012, p. 98-125.

94 For example, Mekhilta de-Rabbi Ishmael, Neziqin 1 (ed. Lauterbach, vol. 3, p. 1-3): “And these are the ordinances [which you shall set before them] (Exodus 21:1) – Rabbi Eleazar ben Azaria says: Now whenever the gentiles were to judge according to the laws of Israel, I might think that their decisions are valid. Scripture therefore says: These are the ordinances that you shall set before them – You may judge theirs but they shall not judge yours”. For a discussion of this and parallel sources see above n. 52, Dohrmann 2003; Dohrmann and Berthelot in this volume.

95 SEG LV 838; see Kantor 2013 for translation and discussion (quotation p. 85).

96 Berkowitz 2006, p. 153-179.

97 For a detailed account of this process, see Furstenberg 2018a.

98 See above n. 48. For possible evidence for Jewish nomikoi in Caesarea, see Niehoff 2020.

Author

Hebrew University of Jerusalem - yair.furstenberg@mail.huji.ac.il

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