1 A number of recent studies highlight the influence of Roman laws that discuss civil status on halakhah.1 In that context, Roman citizenship has been suggested as one of the paradigms that shaped rabbinic approaches to conversion. For example, Moshe Lavee views rabbinic conversion as a “fusion of Biblical, Greco-Roman and Persian models”.2 He regards this Greco-Roman source as:

a civic model that evolved from the Greek polis to its later forms of citizenship in imperial Roman settings. Such Greco-Roman perceptions seem to supply a framework for considering Jewishness as a membership in an imagined political entity (“Israel”), and understanding belonging to a group as being subject to its legal system.3

2In this study, I present an analysis that builds from and complements this description of a general Roman concept of citizenship, which affected rabbinic understandings of conversion, to examine a possible link between Roman law on the status of new citizens and rabbinic halakhah regarding converts.4 I analyze the legal relationship between converts and their offspring who were born before their conversion and, in some cases, joined Israel with one or both parents. According to tannaitic sources, under these circumstances, family bonds between a father and his children are severed, even if both generations converted together, and they are no longer deemed his heirs (further halakhic implications for this break in familial ties are discussed below).5 Striking parallels with Roman legislation lead us to examine the connection between Roman and rabbinic law once more.6

Tannaitic laws on the relationship between proselytes and their families

3It is important to emphasize that the Hebrew Bible (Tanakh) does not convey a notion of conversion, which is to say, a procedure that enables outsiders to undergo an immediate change in status to become Israelites.7 Despite the existence of de facto ways to join Israel in the Tanakh (through marriage, for example), no biblical law regulates this process as such. Consequently, this realm of rabbinic legislation cannot be derived directly from biblical instruction.8 Thus I would reiterate that tannaitic law regarding converts and the legal status of parental bonds that precede their entry into Israel cannot be explained on the basis of the Tanakh. 

4The majority of tannaitic sources that address these familial ties cluster around discussions of the laws of inheritance.9 Sons who were born before their father’s conversion (to Judaism) are not considered his heirs, even if they too converted. Those children may only inherit from him if such a bequest is stipulated in a will.10 As a result, male converts often lacked natural heirs: since their relationship with their children had been severed, they had no agnates (whose kinship may be traced through descendents determined by male lineage). In these instances, the first Israelite to take hold of the possessions of such a deceased convert would be considered the new owner.11 Indeed, several tannaitic passages address the case of “a convert who died without heirs” (הגר שמת ואין לו יורשים; m. Bava Qamma 4:7; t. Bava Qamma 4:6; Bekhorot 2:2), or simply discuss “the one who takes possession of a convert’s property” (המחזיק בנכסי הגר; m. Bava Batra 3:3; 4:9; t. Bava Batra 2:11). 

5Tannaitic texts also mention scenarios where Israelites take hold of a convert’s possessions but an heir is subsequently identified (e.g., his wife had been pregnant with a son at the time of his death, so he became the heir at birth; or a son who was conceived and born after his father converted is discovered; see t. Ketubbot 4:16). Another phrase that appears in the Tosefta and later sources is “a convert who died and Israelites distributed his properties” (גר שמת וביזבזו ישראל את נכסיו; t. Pe’ah 2:10; Sheqalim 3:11). These selections indicate that the Mishnah and the Tosefta take as a given that sons born before their father’s conversion are disqualified as inheritors, so it could not be assumed that a convert has heirs.12 One noteworthy passage explicitly comments on a case where a father and his sons converted together:

הלווה מן הגר שניתגיירו בניו עמו. לא יחזיר לבניו. ואם החזיר רוח חכמ' נוחה הימנו...13

The one who borrows from a convert whose sons converted with him need not repay [the debt] to his sons. But if he did repay [it] – the sages are (lit. the sages’ spirit is) pleased with him. (Mishnah Shevi‘it 10:9)

6This mishnah speaks of a converted father who lent money (or other assets) to an Israelite; however, he died before he was repaid. If the deceased lender had been from long-standing Israelite lineage, returning the loan to his sons would be required but, in a case of a convert, the law does not demand its restitution, since the creditor’s sons are not legally considered his heirs. However, these sons had also converted to Judaism. In such circumstances, the sages encourage Jews to pay this debt even though that action is not required by halakhah. We therefore see that, although the authors of this mishnah acknowledge the dissonance between the law and equitable conduct, no tannaitic voices contest the dissolution of familial bonds between a proselyte and his progeny. 

Reading this law into the Torah

7Tannaitic sources recognize the nullification of these familial bonds as an inevitable outcome of conversion by reading this feature into verses from the Torah that did not originally address this subject. The following interpretation of Numbers 5:8 illustrates this approach:

"ואם אין לאיש גואל". ר' ישמעאל או'. וכי יש לך אדם ביש' שאין לו גואל. מה ת'ל "ואם אין לאיש". בא הכתוב ולימד על "הגוזל את הגר ונשבע לו ומת שישלם קרן וחומש לכהנים ואשם למזבח" (משנה בבא קמא ט יא).14

“If this man has no go’el” (a kinsman to whom restitution may posthumously be made if one is wronged; Numbers 5:8, NRSV). Rabbi Ishmael says: “Do you have a person among Israel without a go’el? [Therefore when] Scripture says: ‘If this man has no [go’el],’ the text comes to teach about ‘The one who steals from the ger (the convert) and (falsely) swore to him (the ger), and [that ger then] died. Let him (the robber) pay the principle (full value of the stolen goods) and [the fine of] one-fifth [of its worth] to the priests and [let him bring] a guilt offering to the altar’ (m. Bava Qamma 9:11). (Sifre Numbers 4)

8This midrash discusses the return of stolen possessions to a proselyte. Although this passage expounds on Numbers 5:8, the preceding verses provide the Scriptural and thematic context needed to understand this rabbinic teaching:

The Lord spoke to Moses, saying: Speak to the Israelites: When a man or a woman wrongs another, breaking faith with the Lord, that person incurs guilt and shall confess the sin that has been committed. The person shall make full restitution for the wrong, adding one-fifth to it, and giving it to the one who was wronged. If the injured party has no next of kin (go’el) to whom restitution may be made for the wrong, the restitution for wrong shall go to the Lord for the priest, in addition to the ram of atonement with which atonement is made for the guilty party (Numbers 5:5-8, NRSV). 

9Rabbi Ishmael – a third-generation tanna who was active in the second century – explains that Numbers 5:8 refers to the case of an Israelite who stole from a convert. After that Israelite made a false oath, swearing that he did not commit this crime, the ger died. The issue then arises, to whom should the thief restore this property and pay the fine required by biblical law? Rabbi Ishmael also cites Numbers 5:8 to support a statute discussed in m. Bava Qamma 9:11. This halakhah – which instructs that, if restitution is made posthumously for theft from a ger, the culpable Israelite should return the stolen property and pay the fine to priests rather than to the convert’s relatives – also appears in a baraita in y. Bava Qamma 9:11, 7a, where it is attributed to Rabbi Akiva. This form of retributive payment is also included among the gifts for priests listed in t. Ḥallah 2:9 and Sifre Numbers 119.

10Even though conversion is not mentioned in this biblical section (or, as noted above, in the Bible at all), in this midrash, Rabbi Ishmael reads Numbers 5:8 in reference to converts. For this sage, only these new members of Israel would possibly lack a go’el (a kinsman or, more precisely, an agnate) who would serve as the beneficiary in these circumstances. While one may claim that converts alone lacked kin among Israel, I would contend that this reading is not imperative: First, in its original context, the Torah seems to envision an Israelite who is without an agnate. Second, according to Benjamin De Vries, earlier halakhah (prior to Rabbi Ishmael) does not view this verse as a reference to converts but, more broadly, to Israelites who lack a go’el.15 Third, several sources, including rabbinic texts, mention family members who convert together; thus, they have Israelite relations, though newly established. Only the assumption that such family ties have been severed generates a situation in which a convert would likely have no relatives.

Additional tannaitic examples

11While most tannaitic deliberations on the relations between a convert and his offspring focus on inheritance, this relationship appears in other legal context as well. Two are outlined in this essay: levirate marriage and the status of a male convert’s daughters. First let us consider the laws of levirate marriage that appear in Deuteronomy 25:5-10, which instruct that, if a man dies without a son, his brother should either marry the widow to produce an heir for his deceased brother (“Her husband’s brother shall go in to her, taking her in marriage, and performing the duty of a husband’s brother to her, and the firstborn whom she bears shall succeed to the name of the deceased brother, so that his name may not be blotted out of Israel,” Deuteronomy 25:5-6, NRSV), or perform the ḥalitzah ceremony that releases the widow to wed someone else. By contrast, in rabbinic law, if a son is born to such a widow and the brother of her deceased husband, that child follows the line of the biological father rather than his late brother; nevertheless, the requirement to either marry or conduct the ḥalitzah ritual is maintained. These laws do not apply to converts (see m. Yevamot 11:2, t. Yevamot 2:6; 11:2). Mishnah Yevamot 11:2 states that, when brothers converted with their family, they cannot perform levirate marriage for one another, even if their mother had been pregnant with one brother when she converted (thus, he was born after she became an Israelite) and the other brother was conceived and born after her conversion.16 Even though both brothers are considered Israelite, having been born after the conversion, the paternal line with the firstborn has been severed; therefore, despite having been born to the same parents, these sons are not regarded as brothers in their father’s line, rendering each disqualified from becoming the other’s levir.17

12The termination of the father’s association with his offspring also pertains to daughters. As with sons, even if the mother were pregnant when she converted, certain restrictions apply.18 For example, when that virgin daughter marries, if her newlywed husband falsely accuses her of adultery, he is not required to pay the fine for slander to her father instructed in Deuteronomy 22:19. Although the daughter is considered Israelite, her relationship with her father was nullified when the family converted, so he is not eligible for that recompense (m. Ketubbot 4:3).19 Furthermore, one opinion in Sifra Qedoshim 5.2 suggests that conversions had asymmetrical consequences for families: whereas the children’s legal relationship with their father was severed, the bond between a female convert and her children remained intact.20 As Moshe Lavee notes with regard to converts: “Almost all relevant laws in the Mishnah refer to paternal relations: inheritance, levirate marriage and laws that apply to the authority of a father over his daughter”.21

Understanding this tannaitic legislation

13Tannaitic sources do not provide reasoning for this abrogation of a male proselyte’s paternal association with and authority over any offspring who were born – or even conceived – prior to his conversion. Rather, this change in status seems to be considered normative, requiring no explanation. However, the logic behind these laws is articulated in amoraic compositions, including both Talmuds. On the differences between the treatment of this subject in the Babylonian Talmud (Bavli) and amoraic texts from the Land of Israel, Lavee observes that the Bavli introduces a paradigm that has no precedent in Palestinian material, using “the phrase ‘a convert is like a newborn infant’ to convey the idea that converts have no legally valid (pre-conversion) kin”.22 Thus he adds: “In the Bavli, where the governing rule is that conversion re-creates the convert, maternal relations are also severed, and thus the convert also lacks valid legal kinship to maternal relatives”.23 Whereas classical commentators often apply this approach from the Bavli to tannaitic material, Lavee advocates turning to amoraic Palestinian texts to understand these tannaitic sources. He explains that, in Palestinian amoraic compositions: “Non-Jews cannot claim legal paternity, and a non-Jew is not considered the legal father of his offspring, a legal situation that is maintained after conversion”.24 Although Lavee presents this as the prevailing approach articulated in amoraic sources from the Land of Israel, in the Jerusalem Talmud, this idea is debated by the third-century sages Rabbi Yoḥanan and Rabbi Shimon ben Laqish (Yevamot 2:5, 4a).25 Not until the fifth century (i.e., in Genesis Rabbah and later midrashim) does the principle that a gentile father has no familial ties with his children seem to have been fully accepted and explicitly formulated in rabbinic compositions.26 Yet Lavee claims that the Palestinian amoraic view that the paternal standing of a non-Jewish father is not recognized by Jewish law also explains the tannaitic position, by stating: “It is quite plausible that this was the governing principle in the tannaitic period”.27 In light of the relatively late documentation of this stance, I would suggest that this position cannot be read into tannaitic material without further evidence. Rather, I posit that second-century discussions of Roman laws regarding new citizens’ power over their children may provide a conceptual framework for the tannaitic legislation discussed above. 

Roman laws on new citizens

14Although Roman statutes on the relations between new Roman citizens and members of their existing families are worded differently and include themes that go beyond tannaitic discussions of converts, they share significant parallels with the aforementioned tannaitic rulings.28 Let us first survey relevant passages from the Institutes of Gaius, a textbook of law that is dated from the mid-second century CE.29 In Institutes 1, 93-94 we read:

(93) If a foreigner seeks Roman citizenship for himself and his children, his sons will come into his power only if the emperor brings them into power; he does so only if, having heard the case, he judges this to be in his sons’ interest. He hears the case with more care and more searchingly where the children are under puberty or absent; this is made known in an edict of the Emperor Hadrian.30

(94) Again, if someone is granted Roman citizenship together with his pregnant wife, although the child is born a Roman citizen (as I have said above),31 yet he does not come under his father’s power; this is made known in a written replay of the Emperor Hadrian of blessed memory. For this reason, a man who is aware that his wife is pregnant at the time when he is seeking citizenship from the emperor for them both, should at the same time seek to have in his power the child which is due.32

15Under Roman law, a father has patria potestas, almost absolute authority over his offspring, throughout his lifetime unless he legally emancipates them.33 However, these passages indicate that, when a father and his children simultaneously become Roman citizens, the latter are not legally subject to paternal authority unless the emperor approves a special request from their father.34 This law specifically addresses the case of a mother who is pregnant when she and her husband are granted citizenship. Such a child is born a Roman citizen yet, unless the father successfully petitions the emperor, all paternal attachments and authority are severed. It is unclear whether this disassociation stems from a Roman assumption that such patriarchal power does not exist among non-Romans (as stated in Gaius, Institutes 1, 55),35 or an analogy to changes in status that, by default, break previous forms of kinship, as when Roman citizens lose status (more on this subject below).36 Irrespective of its cause, there is no doubt that, in Roman law, the loss of parental authority for a father who becomes a citizen is directly linked to his children’s status as heirs, as stated in Gaius, Institutes 3, 19-20:

19) Actually, due to this law the children, from the time they have been emancipated onwards, have no right to their parents’ inheritance, because they are no longer immediate heirs.37

20) It is the same if children are not in their father’s power because they were granted Roman citizenship along with him but the emperor’s grant did not bring them into his power.38

16These passages demonstrate that, just as with emancipated children, when a family receives Roman citizenship, the father retains no power over his offspring (unless they were conceived and born after their parents become citizens). Consequently, they are no longer considered his heirs.39 Among other things, this termination of family ties had serious economic implications for children who, like other first-degree kin, were normally exempt from inheritance tax.40 This issue also arises in Pliny’s panegyric of Trajan, where he discusses qualifications for this tax exemption:

37.3 This generosity of the law was reserved for long-established citizens; the new ones, who had obtained citizenship by Latin right or a favor from the emperor, unless they had received rights of kinship at the same time, were treated as entirely alien to those with whom they shared the closest ties.41

17It is hardly surprising that a policy that imposes inheritance tax on new citizens’ assets would be a topic of ongoing discussion.42 As Jane F. Gardner writes: “Pliny credits Trajan and his predecessor Nerva with a number of modifications,” among them, differentiating the relationship that mothers and fathers who became new citizens had with their children:

37.6 Your father ordained that for property passing from a mother to her children, or from children to their mother, even if they had not been given rights of cognation when they achieved citizenship, they should not pay the 5 percent tax.43

39.2 … and he granted to all of them, at the same time, without distinction and in conformity with the law of nature, the legal rights of cognation which previous emperors had insisted on making the object of special requests by individuals – with the intention rather of refusing than of granting them.44

18Pliny remarks that, at a certain point (in the late first century or early decades of the second century), the legal nullification of parental ties between new citizens and children whose births preceded that change in status became restricted to fathers, whereas maternal bonds remained recognized.45 In Panegyric 39, 2, Pliny asserts that cognation (maternal lineage) originates in the “law of nature” and, therefore, should be upheld even if one’s status is transformed.46 This association of cognation and the law of nature is also mentioned in Gaius, Institutes 1, 156:

Agnates are relatives through the male sex, loosely relations through the father, as for instance his brother (if born of the same father), that brother’s son, and a grandson through that son, also his father’s brother, that uncle’s son, and a grandson through that son. People related through females are not agnates. They are related in a way which is recognized by the law of nature, as cognates…47

19According to Gaius, Institutes 1, 158, when Romans were subject to a loss of status, legal ties with their agnates were severed but bonds with cognates remained (however, if freedom were lost, either by captivity or slavery, ties with agnates and cognates alike were severed):48

The agnatic tie is broken by status-loss. Cognatic relationship, by contrast, is not affected by status-loss. While the logic of state law can destroy rights founded on the state law, it cannot affect rights founded on the law of nature.49

20Although rabbinic sources do not refer to the “law of nature” nor do they occupy themselves with inheritance tax, their treatment of new Israelite members features several striking similarities to the laws that apply to new Roman citizens:

21First, as in Roman law, most tannaitic rulings focus on the father: specifically his power over his children and legal paternal relations with them. In Roman law, that authority is severed, probably resulting from his change of status (or, perhaps, from the fact that non-Romans did not share this formalized hierarchy). Thus, fathers who became new Roman citizens or Israelite converts effectively ceded authority over any children who were born (or conceived) prior to acquiring their new status. 

22Second, Roman legislation also associates a father’s loss of paternal authority upon gaining citizenship with his children’s loss of status as heirs, much like tannaitic texts. Indeed, numerous tannaitic passages presume that male converts are likely to be without heirs. However, other family ties are not abrogated: for example, that same father who converted may accept a bequest from his non-Israelite father as an heir (as a new Roman citizen may from his father, who is not a Roman citizen);50 neither does becoming a Roman citizen nor conversion alter an existing marriage contract in Roman law or tannaitic texts (m. Ketubbot 9:9).51

23Finally, in both of these legal corpora, if a woman were pregnant when she and the expectant father receive Roman citizenship or convert, that child is born as a Roman citizen or an Israelite, but the child’s kinship tie with the father has been nullified. 

24These similarities lead us to question why the sages accept this dissolution of familial ties as a given.52 In the Roman context, these laws can be explained by two motivations: the empire gains revenue from inheritance taxes; and, this legislation is consistent with other laws that address the loss of status (for changes in status often entail cutting off kinship relations). However, the reasoning behind the sages’ application of this standard to tannaitic halakhah is less clear. Although it would be premature to present a definitive explanation at this point (this study is part of a more comprehensive project, which will include additional cases that may expose factors beyond adoption or rejection of Roman laws in rabbinic halakhah that affect converts), here are several preliminary observations on this subject. 

25The existence of conversion is well attested from the Second Temple period onward; nevertheless, our information on converts and their status during the second and third centuries CE mostly consists of rabbinic sources. Halakhic discussions of other subjects indicate that rabbinic literature would sometimes attempt to regulate institutions that were already operative within Jewish society.53 In other words, the sages may have been negotiating with contemporaneous practices in Syria-Palestina, such as the prohibition against marriages between female converts and priests. The sages did not initiate this restriction, but rather further codified a well-established standard.54 We lack the evidence to ascertain whether the laws that govern fathers who converted and their sons have longer standing within the Jewish community or if they originated with sages whose teachings are reflected in these rabbinic sources. Since the abrogation of parental relations between a male convert and his children is uncontested in tannaitic sources, we must consider the option that the sages did not invent this position without precedent. 

26Another factor that merits attention is the economic benefit that priests and certain Israelites would receive as a consequence of this break in legal familial ties, along with the loss of status as heirs incurred by converts’ sons. In my opinion, it would be problematic to ascribe financial gain as the rabbinic motivation for these laws (if indeed the sages innovated these laws), especially since at least one teaching encourages that a loan be repaid to the sons of converts, even though such payment exceeds the letter of the law. 

27Finally, we may also explore the possibility that rabbinic halakhah concerning civil status was particularly influenced by Roman concepts. In recent decades, research increasingly supports this phenomenon:55 for example, it has been suggested that the rabbinic understanding of freed slaves as new citizens in Israel was based on the Roman treatment of freedmen and women who were granted citizenship;56 other studies demonstrate that tannaitic legislation regarding captives was affected by Roman law on this topic.57 Although a complete survey of current scholarship cannot be presented here, this literature broadly supports the supposition that, in this case too, parallels between these legal systems reflect rabbinic absorption of certain elements of Roman jurisprudence, even if their motives in this instance require further inquiry. 

Some general observations

28The relationship between rabbinic halakhah and Roman law has been discussed extensively by scholars who recognize a “conceptual similarity between the Roman and the rabbinic systems”.58 I limit this discussion to asking how the three similarities presented above can be explained. First, let us consider the questions that guide this analysis: were tannaitic rulings on the status of converts developed in accordance with Roman laws for new citizens? The parallels between these two legal frameworks are too strong to be mere coincidence, especially since this subject has no biblical antecedent. To what extent were the sages familiar with Roman law? What were the sources of their knowledge? Did they have access to written texts or, at least, to edicts that were publicly posted,59 or were they informed by the practical realities of the Roman world that they inhabited? In that milieu, the statutes which determined eligibility for inheritance and regulated taxes for new citizens and their family members had considerable economic ramifications. Moreover, a number of tannaitic sources assert that, in addition to ruling on the basis of the Torah, rabbis were able to judge from the “law of the nations”; thus, these texts assume that at least some sages had expertise in non-Jewish bodies of law.60 While these sources present a possible choice between legal systems, the correspondence between Roman laws regarding new citizens and nearly contemporaneous tannaitic material on the status of converts seems to suggest that the sages viewed converts as new citizens of Israel. 

29Roman laws on the status of new citizens, especially where they differed from long-established Roman families, appear to influence rabbinic legislation on the status of “newcomers” on topics that were central to both Roman and rabbinic societies, such as honoring one’s father and lines of inheritance, and also issues that were particular to Israelites, like levirate marriage. At times, the sages treat certain Roman laws (or, perhaps, norms) as a given in their readings of biblical verses that did not originally refer to converts. 

30Thus, tannaitic halakhah seems to reflect an internalization of specific features of the status of new Roman citizens that were then applied to converts, even while articulating these regulations somewhat differently and focusing on dissimilar aspects: a father and, by extension, his children pay an economic price for becoming “citizens”; this cost results from the emphasis placed on bequests and the status of offspring as heirs; and, the minority voices which question the fairness of these stipulations that have been preserved (Pliny the Younger, Panegyric of Trajan 37, 4 and m. Shevi‘it 10:9, respectively). However, these legal corpora also differ significantly: whereas Roman law is concerned with the inheritance tax, rabbinic texts detail other implications for the sons’ loss of status as heirs, such as their ineligibility to inherit from their father and their potential loss of assets if outstanding loans remained at the time of his death. To a certain extent, these distinctions may be attributed to the respective societal realties. Roman authorities administered all aspects of inheritance tax, which was levied upon its own citizens. Lacking an analogous system of governance, rabbinic sources present alternative means of imposing the economic cost of becoming an Israelite.61 Another commonality is distinguished by its defining terms: in the case of a couple that is granted citizenship or converts while the wife is pregnant, that child is then born as a Roman or Jew, although all legal ties with the father are severed; however, unlike Roman law, rabbinic sources apply the language of holiness to this circumstance, describing those who were “conceived in sanctity (beqdushah)” and those “who were not conceived in sanctity (shel’o beqdushah)”. Certain features of Roman law have no parallel in tannaitic literature, such as the asymmetry between new citizen fathers and mothers in relation to their children (especially with respect to bequests), attributing their bonds to the law of the state and the law of nature, respectively. Thus, whereas rabbinic texts speak of holiness or its absence, Roman law considers the laws of nature and the state as determinants. Despite these differences, Roman norms for new citizens seem to have been among the factors that influenced rabbinic thinking about gerim. Apparently, the tannaitic analogy between a convert and a new citizen was entwined with legal implications that the sages applied from Roman society. Whether the rabbis had access to written Roman law or operated from general knowledge of Roman practices, their conversance in these standards is evident; and, notwithstanding their professed attitudes toward Rome, its power, and legal system, they seem to have incorporated select Roman concepts for their interpretations of the Torah and their process of developing tannaitic law.