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Legal engagement

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

The impact of imperial law on rabbinic legal thinking

A rabbinic postliminium

The property of captives in tannaitic halakhah in light of Roman Law

Orit Malka et Yakir Paz

Résumé

The commonly held scholarly opinion is that according to tannaitic law, captivity does not impact the legal bonds of the captive, and thus does not void a captive’s property rights. In this paper, based on the exposition of conflicting strata in t. Ketubbot 3:8, we uncover a view that captives’ property rights are undermined upon capture and the captives regain their previous rights only when they physically return. This is similar to Roman law, where a captured person ceases to be a citizen, and as a result, all his or her legal bonds – among them property rights – are undermined. However, if the captive returns, his or her civil status is resurrected and rights reinstated through the institution of postliminium. We thus argue that the Tosefta displays a deep internalization of Roman concepts regarding the legal consequences of captivity and formulates a rabbinic version of postliminium.

Entrées d'index

Texte intégral

Introduction

  • 1 On captivity in rabbinic literature, see e.g. Mor 2003–2004; Mor 2005; Rotman 2012.
  • 2 See e.g. m. Ketubbot 2:9; 4:8. For an explicit formulation of this common assumption, see Moscovit (...)

1The commonly held scholarly opinion is that in rabbinic law, captivity does not affect the status of a Jew. A Jewish man or woman taken captive maintains his or her previous legal status under Jewish law, and all rights and duties remain intact during and after captivity. Captivity in and of itself does not change this status. Rather, when discussing captivity, tannaitic law (2nd–3rd centuries CE) focuses mainly on its contingencies, specifically on the circumstances of captivity and what happened to the captive while in enemy hands, since such events might have legal consequences.1 For example, if the wife of a priest was taken captive, it is important to ascertain whether she had intercourse during her captivity, because if she did, she may not return to her husband.2 The legal status of the woman in such a case is changed only by what happened during captivity, while captivity as such is not relevant. This approach stands in clear distinction to Roman law, where captivity per se, independent of events taking place during captivity, changes the status of the captive and drastically impacts legal duties and rights.

  • 3 Malka – Paz 2019.

2We argue, however, that an approach very similar to that of Roman law is found in several tannaitic sources. In a previous paper, we demonstrated this with regard to a ruling on the duty of the husband to ransom his captive wife.3 In the current paper, we wish to examine a similar conceptual approach in the legal context of a captive’s property. Our intention is to demonstrate that tannaitic sources preserve evidence of the view that the captive’s property rights are undermined by captivity, regardless of whether the captive is alive or dead. Moreover, according to this position, the captive regains lost property rights only at the moment he physically returns from captivity. This approach, we argue, maps well on the Roman legal concept of captivity, in which the captive loses not only his liberty, but also his civil status, with consequences for his legal bonds, including property rights. The captive, however, can regain his citizenship and previous rights upon return from captivity through an institution known as postliminium.

3In the following discussion, we first briefly recapitulate our case study of the impact of captivity on marriage, to provide context for the current case. We then analyze t. Ketubbot 8:3, the main tannaitic source on the property of captives. After presenting the significant difficulties that arise from reading the Tosefta according to traditional Jewish jurisprudential assumptions, we argue that this supposedly unified text is in fact constructed of two strata, of which the earlier one follows a Roman concept of captivity and constructs a rabbinic version of postliminium, whereas the latter stratum reformulates this approach in a way that completely undermines it.

Captives of a kingdom and captives of banditry

  • 4 Unless noted otherwise, all quotations from rabbinic texts are from Ma’agarim, with the omission o (...)

4In t. Ketubbot 4:5 we find a distinction between two types of captives: captives of a kingdom and captives of banditry. According to the Tosefta, a husband must ransom his wife only if she is a captive of banditry, but not if she is taken captive by a kingdom:4

1. נשבית אין חייב לפדותה.
2. במה ד״א בשבוית מלכות, אבל בשבוית ליסטות פודה
3. אם רצה לקיים יקיים, ואם לאו יוציא ויתן כתובה מנה.

1. If she was taken captive, he does not have to ransom her.
2. To whom does this apply? To a captive of a kingdom, but with regard to a captive of banditry – he must ransom.
3. If he wishes to retain, he may retain, and if not – he shall let her go and he shall give a ketubbah of 100 [dinars].

  • 5 Rashi (b. Ketubbot 51b), for example, argues that a woman taken captive by a kingdom might hope th (...)
  • 6 For variants, see Malka – Paz 2019, p. 145.

5Scholars have tried to explain this distinction based on the assumption that the difference between a kingdom and bandits impacts the degree of probability that the woman succumbed willingly to her captors.5 Yet such interpretations do not accord well with the only other rabbinic source that distinguishes between these two types of captives. A baraita cited in the Babylonian Talmud rules that only captives of a kingdom are considered captives, whereas captives of banditry are not considered captives (b. Ketubbot 51b):6

ת״ר: שבויי מלכות – הרי הן כשבוין, שבויי ליסטין – אינן כשבויין.

Our Rabbis taught: “Captives of a kingdom are regarded as captives; captives of bandits are not regarded as captives”.

6According to this baraita, it seems more plausible that the husband’s duty under the marriage contract to ransom his wife if she is taken captive refers to capture by a kingdom, contrary to the Tosefta.

  • 7 All translations from the Digest here and throughout the paper are taken from Watson 1985.

7Unlike previous suggestions, we demonstrated that the origin of the distinction between captives is found in Roman law, where it reflects not events during captivity, but the political status of the captors, a status that is determined by their degree of political legitimacy. Ulpian, for example, writes (Institutes, book 1; Dig. 49, 15, 24):7

Hostes sunt, quibus bellum publice populus romanus decrevit vel ipse populo romano: ceteri latrunculi vel praedones appellantur. et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est: ab hostibus autem captus, ut puta a germanis et parthis, et servus est hostium et postliminio statum pristinum recuperat.
The enemy are those on whom the Roman people has publicly declared war, or who themselves [declare war] on the Roman people; others are termed robbers or bandits. Therefore, a person who is captured by brigands is not the brigands’ slave, nor does he need postliminium; after capture by the enemy however as, say, by the Germans and the Parthians, he is the slave of the enemy and recovers his former status with postliminium.

8An enemy, according to Roman law, is a recognized foreign political entity, such as the Germans or Parthians. On the other hand, armed individuals or groups are considered not enemies, but bandits.

9These statements clearly distinguish between capture by a foreign state and capture by pirates or bandits. Foreign political entities recognized by Roman law have the legal capacity to change the legal status of Roman citizens taken captive, whereas pirates and bandits lack this capacity.

  • 8 See Treggiari 1993, p. 435-436, and more extensively Watson 1991. Essentially, marriage is dissolv (...)

10Roman law assigns severe legal ramifications to capture by an enemy state. As a result of such captivity, a Roman citizen loses his or her liberty and status and becomes, so to speak, legally dead. This entails the dissolution of all the captive’s legal bonds under Roman law, among them marriage.8 Bandits, on the other hand, are not recognized as a legitimate political entity, and capture by bandits therefore does not have any impact on the captive’s legal status. Consequently, the marriage of such a captive remains intact.

11The parallels between Roman law and the baraita are clear-cut. They are especially striking when the baraita’s definitions are placed alongside those of Ulpian:

Ulpian (Dig., 49, 15, 24) b. Ketubbot 51a
ab hostibus autem captus [. . .] servus est hostium שבויי מלכות – הרי הן כשבויין
after capture by the enemy [. . .] he is the slave of the enemy Captives of a kingdom are regarded as captives
qui a latronibus captus est, servus latronum non est שבויי ליסטין – אינן כשבויין
a person who is captured by brigands is not the brigands’ slave captives of bandits are not regarded as captives

12In view of this comparison, we can understand the ruling in the Tosefta: a woman who is a captive of a kingdom is considered legally dead and thus loses her prior legal status. Therefore, the husband is exempt of his obligation to ransom her. The legal status of a captive of banditry, meanwhile, is not harmed by captivity. She remains legally alive, and all the husband’s obligations to her remain intact, so that he must ransom her. This reading resolves the apparent contradiction between the Tosefta and the baraita, demonstrating that both sources are based on the same legal assumptions derived from Roman law.

13The adoption of these Roman legal norms, with their conceptual underpinnings, conclusively demonstrates that the Roman law of captivity impacted the legal thinking of some of the rabbis. Yet perhaps this unambiguous example is simply a local borrowing limited to the husband’s duties towards his captive wife. Alternately, perhaps it is the tip of the iceberg, pointing to a more profound penetration of the Roman principle that the captive loses his civil status – evidence of some rabbis’ systematic engagement with Roman models of citizenship and captivity. We believe that the latter scenario is closer to the truth, as illustrated by how the Roman law of captivity impacted property rights in tannaitic law.

Captivus captus

  • 9 For a detailed presentation of the textual variants, see Lieberman 1967a, p. 84; Brody 2015, p. 21 (...)

14Our discussion centers on t. Ketubbot 8:3, which contains one of the few tannaitic discussions of the status of a captive’s property. The Tosefta states:9

  • 10 ושמע–ונשכר] missing in the Geniza fragment (T-S E2.141, 5r); the scribe probably skipped a line. S (...)
  • 11 המורישין] in MS Erfurt, MS Vienna, and editio princeps: היורשין; absent in the Geniza fragment. Co (...)
  • 12 בהן שמתו] MS Erfurt: בהם שממשמשין; Geniza: שהן באין. Probably impacted by the previous line. See L (...)

1. היורד לנכסי שבויין ושמע בהן ממשמשין ובאין. אם קדם ותלש מן הקרק׳ כל שהוא הרי זה זריז ונשכר.10
2. אילו הן נכסי שבוין. כל שהלך אביו או אחיו או אחד מן המורישין11 למדינת הים ושמע בהן שמתו12 וירד לנחלה.
3. אילו הן נכסי נטושין. כל שלא שמע בהן שמתו וירד לנחלה.
4. רבן שמעון בן גמליאל אומ׳. שמעתי שהנטושין כשבוין.
5. היורד לנכסי רטושין מוציאין מידן.
6. וכולן שמין להן כעריס.
7. אילו הן רטושין. כל שלא יודע היכן הן.

1. One who enters the property of captives and heard that they are on their way back, fast approaching, if he hastened to uproot anything from the soil – he is quick and benefited.
2. What is the property of captives? Anyone whose father, brother, or one of the bequeathers went overseas, and he heard that they had died and entered the estate.
3. What is the property of netushim? Whoever one has not heard to be dead, and he entered the estate.
4. Rabban Shimon b. Gamliel says: I have heard that netushim are like captives.
5. One who enters the property of retushim – it is taken from him.
6. And they are all assessed as a tenant farmer.
7. Who are retushim? Those whose whereabouts are unknown.

  • 13 We shall address the structure of the entire unit in a future study.

15This is a complex unit that raises many difficulties and requires thorough examination. A full discussion of the halakhah exceeds the limits of this paper; we shall focus on lines 1-2, which contain the key for understanding the unit’s formation.13

16Line 1 states that if an individual entered the estate of a captive to take possession of it and then heard that the original owner was returning from captivity and already on his way back, he nevertheless may quickly grab produce from the land before the captive returns. Line 2 then considers how to define the property of captives, or more exactly, how to define a captive.

17The ruling in line 1 raises two main difficulties. One relates to the opening statement, which gives the circumstances where the ruling applies: “One who enters the property of captives”. Yet what legal or factual assumptions allow a person to enter the captive’s property at all? The other problem concerns the ruling itself: “if he hastened to uproot anything from the soil – he is quick and benefited”. The Tosefta maintains that even if the captive, the original owner, is definitively known to be on his way back, about to return any minute and claim his property, it still is permitted to uproot anything from the soil before his de facto return. What is the legal rationale for such a seemingly blatant violation of the owner’s right to his property?

18In line 2 there is a definition of captives, ostensibly those same captives mentioned in the previous line: “What is the property of captives? Anyone whose father, brother, or one of the bequeathers went overseas, and he heard that they had died and entered the estate”.

  • 14 See e.g. m. Gittin 4:6; t. Pe’ah 4:16; t. Terumot 1:10; t. Shevi‘it 7:9; t. Ketubbot 1:6; and many (...)

19This definition is very problematic and seems to undermine the very concept of a captive. Is a captive not a person who has been taken against his will by an enemy during war, and not someone who has gone abroad of his own free will? Further, why is the fact that the person has been heard to be dead part of his definition as a captive? In other rabbinic discussions of captives, they are clearly alive, so that there is, for example, a duty to ransom them.14

20Paradoxically, according to the definition in the Tosefta, captivity is not an essential part of the definition of a captive! In fact, this strange definition forces the Babylonian Talmud in its discussion of the topic (b. Bava Metzi‘a 38b–39a) to coin the seemingly tautological expression שבוי שנשבה – “a captive who has been taken captive,” or if it were to be rendered in Latin, the rather nonsensical captivus captus. A captivus captus stands in opposition to someone who went abroad, who would thus be defined as a captive who was not taken captive, captivus non captus. This highlights the artificiality of the Tosefta’s definition of a captive.

  • 15 Lieberman 1967b, p. 314.

21To resolve the difficulty posed by the ruling in line 1, the main commentators on the Tosefta, especially Saul Lieberman, suggested that the ruling should be understood as reflecting a rather simple consensus that if someone is believed dead (line 2), his heirs may take possession of the estate (line 1). According to this reading, line 1 of the Tosefta discusses a captive thought to be dead.15

  • 16 Lieberman 1967b, p. 314. Brody seems to accept Lieberman’s reading. However, while Lieberman assum (...)

22As for the surprising definition of a captive in line 2, Lieberman, followed by Brody, argues that it is an extension of the basic definition of a captive in its usual sense. In other words, the halakhah in line 1 deals with a prisoner of war heard to be dead, and line 2 extends the ruling to include not only normal captives, but also anyone who has gone abroad and is heard to be dead.16

23Is such a harmonious reading plausible? It should be noted that it does not solve all of the problems that the two initial lines of the Tosefta raise. It ostensibly clarifies why entering the property is permissible, by assuming that the entrant honestly believed the owner of the property to be dead. However, this reading does not explain why that person is permitted to quickly uproot the produce even once aware that the captive is not only very much alive, but also on the way back to his property.

24Moreover, if the license to enter the captive’s property is based on the assumption that he is dead, why is the fact that he is a captive relevant at all? How is he different from any other person presumed dead?

  • 17 In his treatment of the property of netushim in the Tosefta, Lieberman (1967b, p. 315) writes: “It (...)
  • 18 Cf. Mekhilta de-Rabbi Ishmael, Neziqin 18 (Horovitz – Rabin 1960, p. 314).

25Lieberman’s approach seems to be influenced not only by line 2, but also by the dominant halakhic stance that heirs are forbidden to enter the property of the bequeather, even if he is missing, unless he is definitively known to be dead.17 Indeed, such a halakhic approach explicitly appears several times in tannaitic midrashim, such as Mekhilta de-Rabbi Shimon bar Yohai 22:23 (Epstein – Melamed 1956, p. 211):18

"והיו נשיכם אלמנות ובניכם יתומים", וכי אין אנו יודעים שכשיהרגם בחרב נשיהם אלמנות ובניהם יתומים? אלא נשיהם יושבות ומשמרות בשביין ואינן יכולין להינשא ובניהם יתומים שהיו יושבים ומשמרין בשביין ואינן יכולין לירד לנחלה.

“And your own wives shall become widows and your children orphans” (Exod 22:23): And don’t we know that once He has killed them by the sword, their wives will become widows and their children orphans? Rather, their wives will sit and wait during their [their husbands’] captivity and will not be able to remarry, and their sons will be orphans in that they will sit and wait during their captivity and will not be able to enter the estate.

26According to this midrash, captivity is a status where a person is absent but not known to be dead – and this uncertainty magnifies the tragedy of the survivors. The clear assumption underlying the midrash is that heirs are forbidden to take possession of the property of their captive parents until they are definitively known to be dead. Contrary to Lieberman’s attempt to align this halakhic position with line 1 in the Tosefta, the Babylonian Talmud recognizes the obvious contradiction. While discussing an amoraic opinion that allows for entering the property of a captive even when he is not known to be dead, the Babylonian sugya (b. Bava Metzi‘a 38b) suggests that there is a tannaitic disagreement on the matter. It attributes the halakhic position that permits entering the property to the ruling in line 1 of the Tosefta, while quoting a version of the abovementioned midrash as representing an opposing tannaitic opinion. There indeed are good reasons to doubt the harmonious reading proposed by Lieberman, as we now shall present in greater detail.

Two strata in the Tosefta

  • 19 Seemingly the only way to maintain the assumption that the rumor of the captive’s death permitted (...)

27As we noted earlier, the harmonistic reading is based on the assumption that the rumor of the captive’s death is what initially permitted the heir to enter the estate. In fact, according to line 2, if that rumor had not arrived, the person mentioned in line 1 could not have entered the captive’s property. This understanding – that justification for entry hinges on the (erroneous) assumption of death – should have forced the conclusion that from the moment the heir discovers that he has erred and the captive is in fact alive, the heir must immediately vacate the property and return everything he has taken. Instead, according to line 1, even when the heir clearly knows that the captive is alive, he can rush in and uproot whatever he wants from the land. Not only is this not forbidden, but the Tosefta adds that one who so acts “is quick and benefited”.19

28A focus on the language of the Tosefta, especially the phrase “he is quick and benefited,” suggests that the ruling in line 1 should be read against the previous ruling in the Tosefta, here designated line 0:

0. היורד לנכסי אשתו ונתן עיניו לגרשה. אם קדם ותלש מן הקרקע כלשהו הרי זה זריז ונשכר.
1. היורד לנכסי שבויין ושמע בהן ממשמשין ובאין. אם קדם ותלש מן הקרק׳ כל שהוא הרי זה זריז ונשכר.
2. אילו הן נכסי שבוין …

0. One who enters the property of his wife and decided to divorce her, if he hastened to uproot anything from the soil – he is quick and benefited.
1. One who enters the property of captives and heard that they are on their way back, fast approaching, if he hastened to uproot anything from the soil – he is quick and benefited.
2. What is the property of captives? […]

  • 20 Line 0 takes its lead from the preceding discussion of a husband’s rights to property owned by his (...)

29The two rulings seem to discuss entirely different legal issues. Line 1 deals with the property of captives upon their return, whereas line 0 discusses the rights of a husband to the property of his wife while on the verge of divorce.20 Despite the difference in substance, we maintain that their similarity in style calls for reading them together. Their alignment reveals deep structural and logical similarities:

t. Ket. 8:2

אם קדם ותלש מן הקרקע כלשהו הרי זה זריז ונשכר. ונתן עיניו לגרשה. היורד לנכסי אשתו

t. Ket. 8:3

אם קדם ותלש מן הקרק׳ כל שהוא הרי זה זריז ונשכר. ושמע בהן ממשמשין ובאין. היורד לנכסי שבויין

t. Ket. 8:2

One who enters the property of his wife and decided to divorce her, if he hastened to uproot anything from the soil – he is quick and benefited.

t. Ket. 8:3

One who enters the property of captives and heard that they are on their way back, fast approaching, if he hastened to uproot anything from the soil – he is quick and benefited.
  • 21 For the term זריז ונשכר in other contexts, see e.g. t. Yevamot 4:4, 8; t. Bava Metzi‘a 11:15; t. H (...)
  • 22 The argument that lines 0 and 1 are internally linked is strengthened by the fact that in y. Ketub (...)

30The Tosefta frames and formulates the two rulings almost identically. The expressions “he who enters the property of X,” “hastened and uprooted from the soil,” and “he is quick and benefited”21 are identical in the two halakhot, and so is the template in which they appear. Yet beyond rhetorical similarities, there also is a shared legal logic. In the case of the husband who divorces his wife, the husband knows in advance that his right to use his wife’s property is limited and conditional, as it will end upon divorce. However, the husband controls the timing of the divorce, and he thus can plan the divorce in such a way that he will have time to hasten and uproot the produce before he actually divorces her. Even though this would seem to be extremely dishonest, the Tosefta stresses that such a ruse is legitimate and the husband has benefited. Similarly, in line 1, one who enters the property of a captive knows very well that his right to the property will come to an end when the captive returns. He therefore is not operating under an erroneous assumption that the captive is dead. On the contrary, the Tosefta intentionally highlights that he knows quite clearly that the captive will return any moment. He acts manipulatively, just as the husband in the previous line, exploiting to his benefit the letter of the law, and once again the Tosefta concedes that the maneuver is legally legitimate.22

31The wording of the Tosefta thus indicates that the ruling in line 1 does not suggest any problem with the possibility that the heir might enter the property even without hearing that the captive has died. The ruling in line 2, however, assumes otherwise, explicitly adding that he has been heard to be dead, in order to justify the license to enter the property – a justification for which the ruling in line 1 had no need. It thus seems quite clear that lines 1 and 2 represent different strata within the Tosefta.

  • 23 b. Bava Metzi‘a 38b: אתמר שבוי שנשבה רב אמר אין מורידין קרוב לנכסיו שמואל אמר מורידין קרוב לנכסיו (...)
  • 24 See b. Bava Metzi‘a 38b: אליבא דר׳ יוחנן מדרבן שמעון בן גמליאל נשמע דמורידין קרוב לנכסי שבוי. מדרב (...)

32Notably, the difference in halakhic stance between line 1 and line 2 parallels a dispute in the Babylonian Talmud between Rav and Shmuel, two early Babylonian amoraim,23 that the sugya explains as deriving from a tannaitic dispute on the same issue, even suggesting that both sides of the disagreement are represented here in the Tosefta.24

33The disparity between lines 1 and 2 in the Tosefta is evident on purely philological grounds as well. There is a clear and consistent difference in terminology: line 1 uses the term nekhasim נכסים, “property,” whereas line 2 uses the term naalah נחלה, “estate”. The same terminological difference appears throughout, clearly demonstrating two interwoven strata.

  • 25 y. Yevamot 15:3, 15a = y. Ketubbot 4:6, 29a. Cf. parallel in b. Bava Metzi‘a 39a: דאמר רב נחמן אמר (...)

34Furthermore, it is important to note that Shmuel, a 3rd-century amora and contemporary of the redactors of the Tosefta, can be shown to have been unaware of the redefinition of the captive in line 2. In the Yerushalmi, he presents his own criterion for defining a captive, whom he distinguishes from the natush:25

שמואל אמ׳: שבוי זה שיצא שלא לדעת. שאילו יצא לדעת היה מצויהו.
נטוש זה שיצא לדעת.

Shmuel says: A captive is one who left involuntarily. For if he would have left voluntarily, he would have bequeathed [the property].
Natush is one who left voluntarily.

  • 26 The exact definition of the terms יצא לדעת and יצא שלא לדעת is not completely clear (see also b. K (...)
  • 27 Shmuel’s definition of natush appears to refer to the tradition attributed to Rabban Shimon b. Gam (...)

35Shmuel’s definitions of the captive and the natush clearly do not accord with those of lines 2–3 of the Tosefta. Whereas the Tosefta defines a captive as one who has gone abroad and has been heard to be dead, and natush as one who has not been heard to be dead, according to Shmuel, a captive is one who has departed his property involuntary and a natush is one who has departed voluntarily.26 Inasmuch as Shmuel’s statement is not presented as part of a debate, it seems likely that he was unaware of the definitions in lines 2-3.27

  • 28 This is the opinion of Rav, who disagrees with Shmuel in b. Bava Metzi‘a 38b. See n. 23 above.

36Thus on both internal and external grounds, line 2 appears to represent a later stratum than that of line 1. It now becomes clear that line 2 in fact polemicizes against the legal logic of line 1. As noted above, line 2 does not infer the captive’s death based on the likelihood that a captive would die in captivity. Rather, it describes the arrival of a concrete rumor claiming that the person died. Such a rumor could concern any person who traveled to a distant place; hence captivity plays no role in the legal reasoning. Line 2 thus does not simply deviate from the plain meaning of a captive, but completely voids it. By transferring the focus from the circumstances in which the person left his property to whether he is dead, the authors of the later stratum demonstrate their objection to the basic assumption of line 1: that captivity itself is sufficient grounds to enter the captive’s property. The legal reasoning of the later stratum, that one may enter the property only if the owner is assumed to be dead, is well documented in tannaitic sources, as we have seen, as well as in amoraic ones.28

37How then can we explain the legal reasoning and assumptions of line 1? Why were these assumptions so objectionable to the authors of the later stratum that they had to intervene so drastically?

38We wish to suggest that line 1 of the Tosefta should be understood in light of Roman law concerning captivity, and especially the principle of postliminium, which entails the loss and recovery of civil status. Line 2, on the other hand, rejects the possibility of changes in Jewish civil status as a result of external circumstances such as captivity.

Captivity and its legal consequences according to Roman law

  • 29 On the legal status of the captive in Roman law, see e.g. Buckland 1970, p. 291-317; Levy 1943; Wa (...)
  • 30 For description of a captive as a slave, see also e.g. Inst. 1, 3, 4; Pauli Sententiae 3, 4a, 8.

39According to Roman law, as briefly noted above, captives taken by an enemy generally lose their Roman citizenship.29 In some cases, captives are described as free men who have become slaves, as in Ulpian’s definition we saw above: ab hostibus autem captus […] et servus est hostium (yet one captured by the enemy […] is the slave of the enemy).30 At times, the captives were regarded as dead, as in the formulation of Ulpian (Dig. 49, 15, 18):

  • 31 In some ways, captivity was worse than death. For example, prior to the Lex cornelia de captivis ( (...)

In omnibus partibus iuris is, qui reversus non est ab hostibus, quasi tunc decessisse videtur, cum captus est.
In every branch of the law, a person who fails to return from enemy hands is regarded as having died at the moment when he was captured.31

  • 32 See e.g. Watson 1993.
  • 33 Wolff 1941, p. 160, 182. Wolff (p. 153) hypothesizes that “were there sui, their latent ownership (...)

40This change of status has dramatic consequences for the captive’s erstwhile legal bonds. If he has children, his patria potestas is suspended until his return (G. 1, 129; Tit. Ulp. 10, 4), and so his children may marry without his consent and even acquire property (Dig. 49, 15, 12, 1; G. 1, 129); his guardianship (tutela) over women and minors is canceled (G. 1, 187); and his marriage is dissolved (Dig. 24, 2, 21; 24, 3, 56; 49, 15, 12, 4). Similarly, property rights were severely undermined.32 Some scholars believe the captive’s property became res nullius, abandoned property.33 Others argue that the result was less drastic: although any will made prior to captivity was voided, the captive’s property was not considered abandoned, but instead captivity triggered an immediate and automatic intestate succession, as succinctly formulated by Amirante:

  • 34 Amirante 1950, p. 42 (our translation). The scholarly dispute hinges on how to interpret the Lex c (...)

Captivity provokes ipso facto and ipso iura the fall of all the rights of the captive. In that moment there thus was instituted a succession, to which the subsequent death of the captive in the hands of the enemy was extraneous and irrelevant. It was a necessary and automatic succession.34

  • 35 See e.g. Dig. 9, 2, 43, where a returned captive who sues for damage done to his property during h (...)

41Setting aside questions concerning the succession of the captive’s property, there are other sources that indicate that the captive no longer was considered the full owner of his previous possessions.35

  • 36 The Roman legal institution of postliminium is, as Alan Watson (1993, p. 1361) aptly put it, “perh (...)
  • 37 Cf. definitions in Dig. 49, 15, 19, pr.; 49, 15, 14, pr. On postliminium rei, see Amirante 1950, p (...)

42Such an outcome was partially reversible upon return from captivity, through postliminium: the right of the captive to restore his previous legal status and the legal bonds derived from it.36 The process might be said to legally resurrect or revive the returned captive as a citizen. In the articulation of Sextus Pomponius, the 2nd-century Roman jurist (Dig. 49, 15, 5):37

  • 38 For a comprehensive discussion of postliminium in peace, see Cursi 1996.

Postliminii ius competit aut in bello aut in pace. In bello, cum hi, qui nobis hostes sunt, aliquem ex nostris ceperunt et intra praesidia sua perduxerunt: nam si eodem bello is reversus fuerit, postliminium habet, id est perinde omnia restituuntur ei iura, ac si captus ab hostibus non esset. antequam in praesidia perducatur hostium, manet civis. tunc autem reversus intellegitur, si aut ad amicos nostros perveniat aut intra praesidia nostra esse coepit.
The right of postliminium applies both in war and in peace.38 In war, when those who are our enemies have captured someone on our side and have taken him into their own lines; for if during the same war he returns he has postliminium, that is, all his rights are restored to him just as if he had not been captured by the enemy. Before he is taken into the enemy lines, he remains a citizen. He is regarded as having returned from the time when he passes into the hands of our allies or begins to be within our own lines.

43The right of postliminium had several preconditions. Most important for our purposes, it could apply only once the captive had returned to Roman soil. Therefore the exact physical location of the captives with respect to the border was crucial for defining their status and for deciding whether they had in fact regained their rights. This point is highlighted by Paulus (On Sabinus, book 16; Dig. 49, 15, 19, 3):

Postliminio redisse videtur, cum in fines nostros intraverit, sicuti amittitur, ubi fines nostros excessit.
A person is seen as having returned with postliminium when he enters our territories, just as he was lost when he went outside them.

  • 39 Cf. the etymology suggested by Scaevola, cited by Cicero, Topica 37. The postliminium, at least in (...)

44The centrality of geographic location is inherent in the term postliminium, which describes a crossing of the limen, the boundary between enemy territory and the Roman Empire.39

A rabbinic postliminium

45Both the undermining of the captive’s property rights upon capture and their recovery upon crossing the border in Roman law are crucial for understanding the ruling in line 1 of the Tosefta.

46We have noted that line 1 does not deal at all with the question of when one may enter the property of a captive. Rather, it seems to assume that the captive’s ownership rights were undermined as a direct consequence of captivity, regardless of whether he is alive. This ostensibly would be impossible according to the usual assumptions of rabbinic property law, which permits succession only after the death of the owner. Yet it makes perfect sense within the Roman legal framework, which regards captivity as a legal event that dramatically affects the captive’s rights, among them his right of property.

  • 40 The Tosefta seems to distinguish between the status of the captive’s land and that of its produce. (...)

47This legal principle is simply assumed in line 1, whereas the real focus and purpose of this ruling in the Tosefta lies elsewhere: in defining the exact moment in which the returning captive regains his property. The point that line 1 wishes to make is that the precaptivity legal situation is restored only when the captive has physically returned, and not before. In fact, the Tosefta intentionally constructs an artificial liminal case in which the captive is returning but has not yet arrived, in order to stress that in this situation, property rights are not yet renewed and produce thus may be taken from the land, because it has not yet returned to its owner.40 This legal reasoning is best understood in light of the concept of postliminium.

  • 41 This does not necessarily mean that line 2 is independent of Roman law. In fact, it may be informe (...)

48The conceptual implications of the adoption of Roman legal principles of captivity can explain why the ruling in line 1 met such resistance that someone found it necessary to completely subvert it by adding the later stratum of line 2.41

  • 42 See e.g. Sherwin-White 1980, p. 267; Gardner 2010, p. 1-6. Cf. Mathisen 2006, esp. p. 1013; Garnse (...)

49This has to do with the internal connection in Roman legal thought between citizenship and the applicability of law. In the Roman legal system, citizenship is manifested by and grounded largely in being subject to Roman law: the right to be fully under Roman law belongs to citizens and is what differentiates them from noncitizens.42 Citizenship may be acquired, bringing the new citizen under the aegis of the law; citizenship may also be lost, and then the law ceases to protect the ex-citizen. Under the latter condition, Roman law ceases to be applicable to the person whose status has changed, and legal bonds, such as property rights, are canceled or at least suspended.

  • 43 Flesher 1988, p. 39-40, followed by Hezser 2005, p. 34, argued that according to the rabbis, ensla (...)
  • 44 See e.g. Brody 2017, p. 282-283: “It seems more likely that for classical rabbinic Judaism, as for (...)

50According to Roman law, capture by enemies causes immediate loss of citizenship. The result is the dissolution of the marriage of a captive, which we discussed in our previous paper, and this also is what enables the suspension of property rights of the captive in the case under discussion. However, such a conditional relation between law and its subjects stands in contradiction to the dominant rabbinic view that Jewish law has a permanent and indissoluble hold over its Jewish subjects.43 Thus though status under Jewish law may change, ceasing to be subject to Jewish law is regarded as impossible.44 The Roman legal regulation of captivity, which encapsulates the conceptual possibility of exiting the realm of the law, clearly is unacceptable to this point of view. The stakes could not be higher.

Conclusion

51The present case study provides us with another example of the infiltration of tannaitic halakhah by the Roman legal conceptualization of captivity, as shown in our previous study regarding the obligation of the husband to his captive wife. Here too, the borrowing is not superficial, but reflects an adoption of jurisprudential presumptions at the very foundation of Roman legal thinking about captivity.

52Yet this case adds to the previous one. First, it demonstrates the application of Roman captivity law not only concerning the captive’s exiting the realm of law, but also with regard to the mechanism of reentering. In the earlier stratum of the Tosefta, this mechanism is modeled on the Roman postliminium, which emphasizes the importance of physical return.

53Second, whereas in the previous example clear indications of the influence of Roman concepts were found only in the editorial stratum and could thus be considered a later development, in the current case the impact of Roman law is found in a much earlier stratum that appears to be contemporaneous with Rabban Shimon b. Gamliel (2nd century CE). The indication is that various sages continuously engaged with Roman law over several generations.

54More important, unlike the previous example, where Roman law was introduced without any visible opposition, in the case under discussion, it is possible to uncover under a seemingly continuous ruling a fundamental dispute between two contradictory approaches to the applicability of Jewish law. This points to the rabbis’ deep engagement, whether affirmatory or dissenting, with Roman concepts of citizenship.

Appendix

בבלי בבא מציעא לח ע״ב ירושלמי יבמות טו, ג תוספתא ח, ג
1a היורד לנכסי שבויים אין מוציאין אותן מידו.
1 ולא עוד אלא אפלו שמע שמשמשין ובאין וקדם ותלש ואכל. הרי זה זריז ונשכר. היורד לניכסי שבויין ושמע עליהן שהן ממשמשין ובאין וקפץ ותלש מן הקרקע הרי זה זריז ונשכר. היורד לנכסי שבויין ושמע בהן ממשמשין ובאין. אם קדם ותלש מן הקרק׳ כל שהוא הרי זה זריז ונשכר.
2 ואלו הן נכסי שבויין. הרי שהיה אביו או אחיו או אחד מן המורישין והלכו להם למדינת הים. ושמע בהן שמתו. ואילו הן ניכסי שבויים. כל שהלך אביו או אחיו או אחד מכל המורישין אותו למדינת הים ושמע עליהן שמתו וירד לו לנחלה. אילו הן נכסי שבוין. כל שהלך אביו או אחיו או אחד מן המורישין למדינת הים ושמע בהן שמתו וירד לנחלה.a
2a היורד לנכסי נטושין מוציאין אותן מידו. אבל ניכסי נטושין מוציאין אותה מידו.
3 ואלו הן נכסי נטושין. הרי שהיה אביו או אחיו או אחד מן המורישין הלכו להם למדינת הים. ולא שמעו בהן שמתו ואילו הן ניכסי נטושין. כל שהלך אביו או אחיו או אחד מכל המורישין אותו למדינת הים ולא שמע עליהן שמתו וירד לו לנחלה. אילו הן נכסי נטושין. כל שלא שמע בהן שמתו וירד לנחלה
4 אמ׳ רבן שמעון בן גמלי׳. שמעתי שהנטושין כשבויין אמ׳ רבן שמעון בן גמליאל. שמעתי הוא שבויים הוא נטושים רבן שמעון בן גמליאל אומ׳. שמעתי שהנטושין כשבוין.
5 היורד לנכסי רטושין מוציאין אותן מידו. אבל ניכסי רטושין מוציאין מידו. היורד לנכסי רטושין מוציאין מידן
6 וכולן שמין להן כעריס.b
7 ואלו הן נכסי רטושין. הרי שהיה אביו או אחיו או אחד מן המורישין כאן. ואינו יודע להיכן הלכו ואילו הן ניכסי רטושין. כל שהלך אביו או אחיו או אחד מכל המורישין אותו למדינת הים ואין ידוע איכן הוא אילו הן רטושין. כל שלא יודע היכן הן.
7a תנא. וכולן שמין להן כאריס.
a. The definition of captives (as well as netushim and retushim in the Yerushalmi and the Bavli) involves two considerations whose relationship is unclear: where they went, i.e., overseas, and whether they have been heard to be dead. The circumstances of departure are not discussed. This may simply be a result of merging different definitions. Another possibility, which demands further study, is that this dimension too was impacted by Roman law, in which a man who voluntarily left Roman territory in peacetime might be considered a captive (see e.g. Dig. 49, 15, 5, 2).
b. Line 6 in the Tosefta does not appear at all in the Yerushalmi’s version, and in the Bavli it appears as a separate baraita (line 7a). The Bavli notes that it does not fit the halakhah that one who enters the property of captives may uproot as much as he wishes (until the return of the captive), whereas he who goes down to the property of retushim (or netushim, according to the Bavli and Yerushalmi) is not permitted to take possession of the produce. It does indeed seem that this line was inserted here from the end of halakhah 7 of the Tosefta, which deals with appraising produce still connected to the soil.

55The definitions of netushim and retushim (Tosefta, lines 3, 7), which use the same template and terminology as the definition of captives (line 2), seem to be part of the same later stratum of the Tosefta. All three definitions seem to be a reaction to an earlier halakhah on the status of the property of these groups. A possible reconstruction of this earlier halakhah might assume for all three groups the template היורד לנכסי א׳ – מוציאין/אין מוציאין אותן מידו (One who enters the property of X – it is taken/not taken from him), similar to the structure found in the Bavli in lines 1a, 2a, and 5. (In the Tosefta, it appears only concerning the retushim.) Also possible is that the earlier halakhah was similar to the one cited in the name of Rabban Shimon b. Gamliel (line 4) and possibly included line 5 (perhaps with a version similar to the Yerushalmi). This halakhah later created the need to define captives, netushim, and retushim. However, the process in which this halakhah was incorporated into the general structure of this unit is difficult to ascertain, as is the exact stage when it entered. We hope to address all of these issues in detail in a future study.

Bibliographie

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Huschke – Seckel – Kübler 1908 = P.E. Huschke, E. Seckel, B. Kübler (ed.), Iurisprudentiae anteiustinianae reliquiae, I, Leipzig, Teubner, 1908.

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Notes

1 On captivity in rabbinic literature, see e.g. Mor 2003–2004; Mor 2005; Rotman 2012.

2 See e.g. m. Ketubbot 2:9; 4:8. For an explicit formulation of this common assumption, see Moscovitz 2003, p. 120 n. 71: “while captivity may affect the treatment of (female) captives under rabbinic law [‏…] such treatment is not the result of ‘status loss’ of the sort posited by the Roman sources, but of the possibility/presumption that the captive had intercourse with her captors”. See also the story in y. Ketubbot 2:6, 26c, and b. Ketubbot 23a. On this story, see Noam 2002–2003.

3 Malka – Paz 2019.

4 Unless noted otherwise, all quotations from rabbinic texts are from Ma’agarim, with the omission of editorial signs and addition of line numbers. Translations are ours unless otherwise indicated. See Lieberman 1967a, p. 66-67. For a slightly different version, see Brody 2015, p. 123. For a comprehensive discussion of textual variants, see Malka – Paz 2019.

5 Rashi (b. Ketubbot 51b), for example, argues that a woman taken captive by a kingdom might hope that the king would marry her and she might therefore succumb to him willingly, whereas in a case of bandits, the woman has no hope of improving her standing and therefore would succumb only by coercion. Lieberman 1967b, p. 237, also offers a solution based on historical contingencies: “And the baraita deals with captives of a kingdom, that is, when officers of the Evil Kingdom would take maidens captive before they entered the hupa – as they had done in Judea during the period of persecution – and thus the woman was not yet in fear of her husband and she did not protect herself, and it is to be feared that she succumbed willingly”. (All translations of Lieberman 1967b are ours.) Cf. Gilat 1976, p. 67-68.

6 For variants, see Malka – Paz 2019, p. 145.

7 All translations from the Digest here and throughout the paper are taken from Watson 1985.

8 See Treggiari 1993, p. 435-436, and more extensively Watson 1991. Essentially, marriage is dissolved immediately upon captivity. On marriage and postliminium, see e.g. Gardner 1986, p. 88; Amirante 1950, p. 149-157; Sertorio 1971, p. 60-64; Buckland 1970, p. 296-298. For further references, see Malka – Paz 2019, p. 158-159.

9 For a detailed presentation of the textual variants, see Lieberman 1967a, p. 84; Brody 2015, p. 217. In the following discussion, we note only the most important variants. Parallels in y. Ketubbot 4:6, 29a (= y. Yevamot 15:3, 14d) and b. Bava Metzi‘a 38b appear in the appendix.

10 ושמע–ונשכר] missing in the Geniza fragment (T-S E2.141, 5r); the scribe probably skipped a line. See Brody 2015, p. 217.

11 המורישין] in MS Erfurt, MS Vienna, and editio princeps: היורשין; absent in the Geniza fragment. Corrected according to parallels in the Palestinian and Babylonian Talmud, as well as the version of some medieval commentators. See Lieberman 1967b, p. 314.

12 בהן שמתו] MS Erfurt: בהם שממשמשין; Geniza: שהן באין. Probably impacted by the previous line. See Lieberman 1967b, p. 314.

13 We shall address the structure of the entire unit in a future study.

14 See e.g. m. Gittin 4:6; t. Pe’ah 4:16; t. Terumot 1:10; t. Shevi‘it 7:9; t. Ketubbot 1:6; and many more.

15 Lieberman 1967b, p. 314.

16 Lieberman 1967b, p. 314. Brody seems to accept Lieberman’s reading. However, while Lieberman assumes that those who enter the property of the captive in line 1 are his heirs, as in line 2, Brody 2015, p. 217, assumes that line 1 permits all individuals to enter the property and line 2 permits only heirs.

17 In his treatment of the property of netushim in the Tosefta, Lieberman (1967b, p. 315) writes: “It is clear that they take it [the property] from them – just as they take it from any heir who entered the property of his bequeathers while they are alive”. Lieberman here shows that he dismisses as insupportable the assumption that a person may enter the property of a captive even if the captive has not been heard to be dead.

18 Cf. Mekhilta de-Rabbi Ishmael, Neziqin 18 (Horovitz – Rabin 1960, p. 314).

19 Seemingly the only way to maintain the assumption that the rumor of the captive’s death permitted entry to the property while resolving the tension (if not contradiction) between the rulings in line 1 and 2 is to read line 1 as referring to a azaqah (possessio) – a legal acquisition by right of possession. According to this reading, the person in line 1 indeed entered the property because he thought the captive was dead, and thus his entry was permissible. Now that he already is inside the property, he has a azaqah until the captive appears and proves that he is alive – it is not enough that the captive is heard to be on his way back. Yet it is very doubtful that one can read the halakhah in line 1 as appealing to azaqah, because the context in which this halakhah appears in the Tosefta reveals that the basic assumptions underlying line 1 are completely different, as we presently shall see.

20 Line 0 takes its lead from the preceding discussion of a husband’s rights to property owned by his wife, but begins a new topic. While the previous halakhot addressed whether the wife can legally sell property to which her husband has rights due to their marriage, the current halakhah deals with the husband’s right to continue benefiting from his wife’s property even though he will lose his rights upon divorce.

21 For the term זריז ונשכר in other contexts, see e.g. t. Yevamot 4:4, 8; t. Bava Metzi‘a 11:15; t. Hullin 6:5; y. Yoma 8:9, 45c; y. Qiddushin 3:1, 63c; b. Pesahim 50b.

22 The argument that lines 0 and 1 are internally linked is strengthened by the fact that in y. Ketubbot 4:6, 29a, in the context of a discussion of the ketubbah, lines 0–7 are cited even though lines 1–7 are not relevant to the context. In the Babylonian Talmud, meanwhile, the citation begins at line 1. Traditions echoing line 0 (including the expression נתן עיניו לגרשה) appear separately in the Bavli, e.g., b. Gittin 18a; b. Bava Metzi‘a 19a.

23 b. Bava Metzi‘a 38b: אתמר שבוי שנשבה רב אמר אין מורידין קרוב לנכסיו שמואל אמר מורידין קרוב לנכסיו (“If a man is taken captive, Rav said: His relative is not permitted to enter his property; Shmuel said: His relative is permitted to enter his property”). See also n. 25 below. Cf. Shmuel’s statement in b. Bava Metzi‘a 39a.

24 See b. Bava Metzi‘a 38b: אליבא דר׳ יוחנן מדרבן שמעון בן גמליאל נשמע דמורידין קרוב לנכסי שבוי. מדרבנן נשמע דאין מורידין קרוב לנכסי שבוי (According to Rabbi Yohanan, we learn from Rabban Shimon b. Gamliel that it is permitted for a relative to enter the property of a captive, and according to the sages, we learn that it is not permitted for a relative to enter the property of a captive). According to this reading, Rabban Shimon b. Gamliel’s opinion, which appears in line 4 of the Tosefta, reflects a position that a relative may enter the property of a captive even if the latter has not been heard to be dead. The sages, on the other hand, believe that only if the captive has been heard to be dead may a relative enter his property (see Tosafot, s.v. היורד). This position assumes that the netushim in line 3 of the Tosefta are defined as captives who have not been heard to be dead, and nonetheless Rabban Shimon b. Gamliel permits entering their property. However, there is no reason to assume that Rabban Shimon b. Gamliel disputes the position in line 1 of the Tosefta (see Or Zarua apud Lieberman 1967b, p. 314), as opposed to the position in line 2, which we shall argue is of a later date.

25 y. Yevamot 15:3, 15a = y. Ketubbot 4:6, 29a. Cf. parallel in b. Bava Metzi‘a 39a: דאמר רב נחמן אמר שמואל שבוי שנשבה מורידין קרוב לנכסיו יצא לדעת אין מורידין קרוב לנכסיו (for R. Nachman said in the name of Shmuel: A captive who has been taken captive – a relative is permitted to enter his property. If he left voluntarily, a relative is not permitted to enter his property). Shmuel’s statement is framed in the Palestinian Talmud as dealing with the definition of a captive, but in the Bavli, as addressing the legal question of whether a relative is permitted to enter the captive’s estate. Nonetheless, both versions reflect the same tradition: according to Shmuel, the criterion that distinguishes a captive from a noncaptive is not whether he has been heard to be dead, but whether he left voluntarily. Cf. Shmuel’s debate with Rav (see n. 23) and Shmuel’s statement in b. Bava Metzi‘a 39a concerning a captive who has left behind ripe produce. In all cases, Shmuel’s position is consistent: he permits a relative to enter the property of a captive, even if the latter has not been heard to be dead.

26 The exact definition of the terms יצא לדעת and יצא שלא לדעת is not completely clear (see also b. Ketubbot 48a). Rashi, followed by other commentators, interprets יצא לדעת as “he left while of sound mind” and יצא שלא לדעת, “left while of unsound mind”. Another possibility is that the terms mean “left voluntarily” and “left involuntarily”. Finally, they can be interpreted as indicating that the individual left with or without intention to return (cf. t. Makkot 2:10).

27 Shmuel’s definition of natush appears to refer to the tradition attributed to Rabban Shimon b. Gamliel in line 4 in the Tosefta, which equates the law regarding netushim to that regarding captives.

28 This is the opinion of Rav, who disagrees with Shmuel in b. Bava Metzi‘a 38b. See n. 23 above.

29 On the legal status of the captive in Roman law, see e.g. Buckland 1970, p. 291-317; Levy 1943; Watson 1987; Watson 1984, p. 23-24; Wickham 2014.

30 For description of a captive as a slave, see also e.g. Inst. 1, 3, 4; Pauli Sententiae 3, 4a, 8.

31 In some ways, captivity was worse than death. For example, prior to the Lex cornelia de captivis (see n. 34), a captive’s testament was considered invalid. Elsewhere, the captive is compared to an unborn child; see Dig. 38, 17, 2, 7; 38, 7, 5, 1.

32 See e.g. Watson 1993.

33 Wolff 1941, p. 160, 182. Wolff (p. 153) hypothesizes that “were there sui, their latent ownership (quodammodo domini, Gai. 2.157, Paul. D. 28.2.11) became effective. In all other cases the property was considered derelict and could be occupied by anybody, and acquired by usucaption, if not simply appropriated”.

34 Amirante 1950, p. 42 (our translation). The scholarly dispute hinges on how to interpret the Lex cornelia de captivis (ca. 81 BCE). Seeking to address the problem of the captive’s testament, this legislation prescribed that if a soldier died in captivity, his testament would be valid retroactively as if he had died not in the hands of the enemy, but at the moment of capture, as a free Roman citizen. (See e.g. Dig. 38, 2, 4, 1; Dig. 28, 1, 12; 28, 3, 15; 35, 2, 1, 1; 38, 2, 4, 1; 38, 16, 1, pr.; 49, 15, 22, pr.). The central question is whether the Lex cornelia dealt solely with testaments or completely changed the succession in the case of captives (including intestate succession). See Amirante 1950, p. 32-40.

35 See e.g. Dig. 9, 2, 43, where a returned captive who sues for damage done to his property during his captivity is compared to a child born after the death of his father who sues for a part of his father’s inheritance. It seems clear that in both cases the right to claim was created when the claimant was not in full ownership, the child because he was not yet born and the captive because he was in captivity.

Indeed some Roman sources forbid selling the estate of the captive as long as it is unknown whether he is dead (e.g., Dig. 42, 5, 39, 1) or prescribe that a curator be nominated for his estate (e.g., Dig. 50, 4, 1, 4). Yet these cases do not change the basic legal understanding that the property rights of the captive have been undermined (though not always entirely rescinded). In any event, the curator was apparently appointed for purposes of produce alone; see Dig. 42, 4, 6, 2: Si ab hostibus quis captus sit, creditores eius in possessionem mittendi sunt, ut tamen non statim bonorum venditio permittatur, sed interim bonis curator detur "If someone be taken prisoner of war, his creditors are granted missio in possessionem of his assets but on the basis that no immediate sale of those assets is authorized; a curator of the goods is appointed for the interim”). Cf. Shmuel’s view in b. Bava Metzi‘a 39a that a curator is appointed over ripened produce the captive left before a relative is permitted to enter the estate. We hope to address this similarity in a future study.

36 The Roman legal institution of postliminium is, as Alan Watson (1993, p. 1361) aptly put it, “perhaps the subtlest part of Roman legal science”. The literature on the topic is vast, including several monographs. See e.g. Amirante 1950; Amirante 1969–1970; Sertorio 1971; Cursi 1996; Levy 1943; Buckland 1970, p. 291-317. For historical context, see Wickham 2014, p. 54-73.

37 Cf. definitions in Dig. 49, 15, 19, pr.; 49, 15, 14, pr. On postliminium rei, see Amirante 1950, p. 77-79; Cursi 1996, p. 243-326.

38 For a comprehensive discussion of postliminium in peace, see Cursi 1996.

39 Cf. the etymology suggested by Scaevola, cited by Cicero, Topica 37. The postliminium, at least in earlier times, could alternately be considered the crossing from one civitas to another, as in Aelius Gallus’s definition (Huschke – Seckel – Kübler 1908, fr. 1): qui liber, ex qua civitate in aliam civitatem abierat, in eandem civitatem redit eo iure, quod constitutum est de postliminis (“He who as a free person went from some civitas into another civitas returns to the same civitas under the right that is established concerning postliminium”; trans. Ando 2015, p. 17). On this definition, see Amirante 1950, p. 9-11; Cursi 1996, p. 17-35.

40 The Tosefta seems to distinguish between the status of the captive’s land and that of its produce. This distinction may also go back to Roman law (see n. 35 above), but the dearth of sources makes it difficult to reach a definitive conclusion. Further study is in order.

41 This does not necessarily mean that line 2 is independent of Roman law. In fact, it may be informed by Roman regulations such as ius migrandi and postliminium in pace (on which see Cursi 1996, p. 17-36). We hope to address this in a future study.

42 See e.g. Sherwin-White 1980, p. 267; Gardner 2010, p. 1-6. Cf. Mathisen 2006, esp. p. 1013; Garnsey 2004, esp. p. 155.

43 Flesher 1988, p. 39-40, followed by Hezser 2005, p. 34, argued that according to the rabbis, enslavement effaces even Jews’ ethnic and religious origins (cf. Dohrmann 2008). However, the exact relation between rabbinic slavery law and Roman and other legal systems is complex and requires further study, as does the question of the impact of the Roman citizenship model on slavery law in general.

44 See e.g. Brody 2017, p. 282-283: “It seems more likely that for classical rabbinic Judaism, as for other monotheistic religions, the boundary enclosing the religious collective was conceived to be permeable in one direction only: outsiders could join, but insiders – even those who had joined from the outside – could never leave”.

Auteurs

Tel Aviv University - orit.malkag@gmail.com

The Hebrew University - yakirpaz@gmail.com

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