Introduction: legal geography

1Some years ago I wrote an essay on a passage from the Mekhilta de-Rabbi Ishmael, a third-century commentary (midrash) on the book of Exodus.1 The passage is the preface to the extensive line by line exegesis of the laws contained in Exodus chapters 21–24. In Exodus, following the Ten Commandments, God reveals this corpus of biblical laws to Israel from Mount Sinai. Driving and uniting this midrashic florilegium, I argued, is an awareness of and adaptation to Rome’s legal monopoly. However, my prior treatment of the passage was, in hindsight, partial. In this essay I will build from my earlier reading, and use it as an opportunity for critical reflection on method. In order to set the stage I will first revisit two of the passage’s critical junctures.

2The prologue is a jam-packed ten or so lines of text made from linking the exegeses of five prominent early rabbis (tannaim), of the first verse of Exodus 21.2 God’s revelation on Mount Sinai is law’s central authorizing drama – as such this framing section introduces, arguably, the core of the rabbinic project. Exodus 21.1 reads: “And these are the ordinances which you shall set before them”. It will be useful to recap the last two rabbinic opinions of five in all.3 As is typical of tannaitic exegesis, the midrash atomizes the verse and parses it in almost fugue-like rhythm. Each rabbinic reader stresses a different word or words, which he then animates in a range of contexts. By the end of this collection of interpretations, the verse no longer signifies as a single semantic utterance, but functions instead as a sort of filing system holding together a series of related reflections on a theme.

3The penultimate tradent, Rabbi Eleazar ben Azariah, stresses the relationship between the law and the venue in which it is applied, by focusing on the word “you”:

And these are the ordinances which you shall set before them.
Rabbi Eleazar ben Azariah [2nd generation tanna] says: Now whenever the gentiles were to judge [ha-goyin she-danu] according to the laws of Israel, I might think that their decisions are valid. Scripture says [to Moses]: And these are the ordinances which you shall set before them. You [O Israel] may judge by theirs but they may not judge yours. On the basis of this interpretation they [sages] say: A bill of divorce given by force, if by Israel, it is valid, if by the nations, it is not valid. But [it is valid if] gentiles force him and say to him: “Do as the Israelite authorities tell you”. 4

4Because God demands that you, o Moses should set these laws before Israel, Eleazar ben Azariah reads this verse to outlaw recourse to gentile tribunals, even if they judge according to Jewish law. (Conversely, he allows Jewish tribunals to judge gentiles according to gentile laws.) However, he concedes, the rabbis will accept gentile enforcement of their own verdicts: “But [it is valid if] gentiles force him and say: ‘Do as the Israelite authorities tell you.’”

5The next section of this midrash finds Rabbi Shimon bar Yohai (early 2^nd c. tanna), the last of the rabbis whose dicta comprise the passage. Shimon bar Yohai asks why God would reveal so much law before Sinai, or, more pointedly, why he would reveal ordinances [dinin/mishpatim] before a category of law he calls “commandments” [mitzvot].

And these are the ordinances which you shall set before them.
Rabbi Shimon bar Yohai says: Why do the ordinances of the law precede all the commandments of the Torah? Because as long as there is a lawsuit between a man and his neighbor, there is strife between them – but as soon as the case is decided, peace is established between them. And therefore Jethro says to Moses, If you do this thing [as God commanded you, you will be able to endure,] And all this people shall go to his place5 in peace (Exod 18:23).

6Shimon bar Yohai works to solve a pressing problem of biblical chronology. In Exodus 18 (which occurs before Israel’s arrival at Mt. Sinai), we find Moses overwhelmed by the seemingly endless legal disputes between his fellow Israelites (ben ish u-ven re‘ehu, Exod 18:16). It says there (v. 13): “Moses sat to judge the people; and the people stood about Moses from the morning unto the evening”. Moses’s Midianite father-in-law Jethro advises him to appoint judges and create a system of courts sparing Moses all but the most difficult cases (Exod 18:19-22).6

7However, if the law was revealed at Sinai, according to what, pray tell, was Moses judging? Here Shimon relies on a tradition that comes earlier in the section. There Rabbi Judah argues that some portion of the law (dinin or mishpatim) was revealed prior to Israel’s arrival at Sinai, and is the instrument with which Moses sits and judges the people.7

8Though positing a pre-Sinaitic law solves an internal textual problem, this solution is manifestly nonstandard – in solving one problem it creates a host more. Most radically, this solution strips the Sinaitic revelation of its function as the authorizing landscape of the law.

9For Shimon bar Yohai, placing judges and courts prior to Sinai does more than solve an exegetical problem, as is hinted at by his strong reading of Jethro’s words in Exod 18:23, a verse he has brought to explain Exod 21:1. The verse reads: “If you do this this thing, God will command you (ve-tzivkha; from same root as mitzvah) and you will be able to stand, and all this people will go to his place (mekomo) in peace (be-shalom)”. The plain sense of the biblical verse is, and I paraphrase: If you o Moses set up this system of judges, not only will you be able to endure the burdens of rule, but the litigants will be satisfied that their cases have been resolved, and so will go home peacefully. Shimon bar Yohai reads something else, to wit (again, to paraphrase): If you o Moses set up this system to adjudicate the civil law (dinin), the people will solve their disputes, and so, by having achieved peace, will be better prepared to approach God’s commandments. The bet in be-shalom, as he reads it, is instrumental, the people can go to its “place” (makom signifying both God and Sinai, as well as alluding to Deut 178) – by means of peace. Here this peace means the successful resolution of civil disputes.

10In short, Shimon bar Yohai presumes three surprising things here: (1) that the largely civil laws coming in chapters 21ff of Exodus were not revealed at Sinai, but some time earlier; (2) that commandments (mitzvot) and ordinances (dinin/mishpatim; family, contract, property law, etc.) are directives belonging somehow to different legal landscapes (and tribunals); (3) finally that peaceful resolution of civil dispute will pave the way to proper relationship to the Sinaitic commandments – whatever they now be.

11The rabbis ask explicitly elsewhere: what sort of dispute resolution results in “peace”? In early rabbinic halakhah a few contexts are said to privilege extralegal or extra-Sinaitic solutions driven by a concern for “peace”.9 However there is a small but consistent set of passages that tie resolution of civil disputes to an outcome marked by peace through recourse to what the sources call bitzu‘a. Bitzu‘a names a form of extralegal compromise sanctioned by a judge.10 I will follow Cohen, Shapira, and others by translating it as “arbitration” (mutatis mutandis, on this more below11).

These are the things you shall do: speak every man the truth with his neighbor, execute the judgement of truth and peace (emet ve-mishpat) in your gates [Zech 8:16]. What kind of peace (shalom) includes a judgment of truth? Arbitration (bitzu‘a). (Sifre Deuteronomy §17; cf. t. Sanhedrin 1).

12Here then in the midst of a homiletic introduction to the revealed law, Shimon bar Yohai hints that the Bible intends the bulk of the law to be handled by means of extra-legal compromise!

13Scholarship has noted the parallels between this section of the Mekhilta (parallel m. Gittin 9:8; b. Gittin 88b) and the strictures of the oft-quoted late fourth-century passage in the Theodosian Code (C.Th. 2, 1, 10), according to which all Jewish civil and criminal law are set explicitly under Roman jurisdiction.12 However, the law adds at the end that in civil cases, Jews can preside over their own tribunals, provided that litigants themselves agree to use them. Moreover, should a litigant refuse to comply with the local Jewish authority, Rome will maintain the outcome with state force.13 The Jewish tribunal’s verdicts, in others words, are granted status analogous to that granted a Roman arbitrium ex compromisso – as if they were arbitrating (ad similitudinem arbitrorum).14

14Though dated later than our passage, the imperial law likely reflects earlier practice, and functions as a heuristic hermeneutical key to the Mekhilta pericope.15 Not only does it appear that the Romans treated some Jewish tribunals as if they were arbitrating ex compromissum, but that some rabbis had adopted this status as a way to understand at least some portion of their own authority in matters of civil law. The Roman law creates a framework that not only explains why Ishmael would allow the “goyim” (non-Jews) to force Jews to abide by Jewish law in Jewish venues, but if “arbitration” as such sets the parameters for civil jurisdiction, then this would explain why Shimon bar Yohai divorces the civil ordinances (dinim/mishpatim) in particular from Sinai and prioritizes peace-producing arbitration.

15C.Th. 2, 1, 10 describes a particular model of a provincial law coexisting with imperial jurisdiction, and so helps us see the midrash as participating in a broader landscape of local ethnic laws and tribunals under Roman sovereignty and jurisdiction.

16In other words, the text’s jarring deviation from more mainstream theological tradition of Sinaitic centrality is explainable as an adaptation to the Roman treatment of Jewish law, and appears to be a case of what Yair Furstenberg understands to be the rabbis’ pragmatic assimilation into provincial Roman legal conventions.16 Mekhiltan reasoning here, it appears, devises an elaborate recasting of the sacred narrative in order to authorize conformity to the reality of their lack of autonomy under empire. Making a necessary good of their disempowerment, this reading goes, they make arbitrational process both biblically mandated and a necessary preamble to proper reception of Sinaitic commandments – now radically reduced in scope and claim (ad superstitiorum eorum).

Arbitration: Jacob and Esau

17Arbitration in this passage functions as the pivot around which our rabbis internalize an imperial paradigm of jurisdiction and through it reshape their own indigenous categories, even historia sacra.

18Actual rabbinic history is notoriously difficult to discern behind the movement’s idealized texts. But here, briefly, in the Mekhilta, the rabbis tilt their hand and admit that they are not the masters of the vast nomoscape they paint in the literary corpus of Mishnah, Tosefta, and halakhic midrashim. Hayim Lapin writes extensively on arbitration in his study of the rabbis as provincial elite. He collects and analyzes the places in the tannaitic corpus that describe and seem to preserve traces of actual legal cases brought before rabbis for adjudication (the ma‘asim).17 These cases do not label themselves as arbitrations, yet they were so de facto; his reading of the material shows that summons and enforcement were beyond rabbinic reach.18 As depicted, litigants themselves initiated proceedings to which the rabbinic “judge” responded ad hoc.19 That the rabbinic tribunal should not have full jurisdiction doesn’t surprise any scholar of the Roman East, but it is a reality that rabbinic sources take pains to obscure.20 Through his close reading of these cases Lapin reveals that just behind the confident normative claims of the Mishnah and beyond, rabbis not only held no formal legal authority under Rome, they held none among Jews as well.21 Rival legal venues – Jewish and gentile – lurk in the sources; Jews, like their gentile neighbors, were shopping jurisdictions.22

19So to the extent that the early rabbis presided over cases of a legal nature, they were arbitrating. Additionally, if our midrash bears any resemblance to history, some inner-Jewish tribunals may have at times relied on imperial enforcement. Rabbinic tribunals would have had to have made themselves somehow legible to Roman enforcers.23 For the provincial governor (or provinciae iudex) to find a Jewish legal verdict in his remit, it would have to be in writing,24 or derive from a process well-established by custom or precedent, and easily communicated to or well-known by the Roman authority.25

20Moreover, if Jews (and gentiles) were jurisdiction shopping, then disputants would have had to have been conversant in a range of juridical processes. For these reasons and more, Boaz Cohen says that “arbitration is of singular importance to students of legal history and comparative law, for it constitutes one important method whereby foreign rules of law could be admitted into another system, especially in proceedings involving civil cases.26 In short, historically speaking, arbitration is a potent contact zone connecting Jews to Roman law.27

21All of this works brilliantly to contextualize the midrash above. But here precisely is where my original treatment of the passage starts to thin. In too easily eliding Roman categories and interests with rabbinic ones, it misses an opportunity for a more nuanced appreciation of the impact of empire on rabbinic jurisprudence. In other words, the gestures of accommodation to arbitration discerned here tempt one to imagine a direct absorption and internalization of the Roman idea of Jewish law and its place and scope of authority before empire. It falls for the Roman fiction of similitude – bringing to mind the work of Clifford Ando on the efficacy of legal “as if’s” to effectively impose the civil law across a wide and diverse empire.28

22So how do the systems and concepts of arbitration in Roman and rabbinic law overlap and in what ways don’t they? Since the nature of imperial jurisdiction means that rabbis are only ever arbitrating in real life, and making law in the Roman East under Roman control, we should expect tannaitic law to be replete with legislation concerning arbitration, and, moreover, that such law would reflect awareness of and contact with Roman methods, formulae, and ideas.

23It isn’t and it doesn’t.

24Stepping back from the passage in the Mekhilta, it becomes quickly clear that its depiction of accession to gentile jurisdiction is far from typical – indeed the traces left by arbitration in the Mekhilta are both allusive and elusive, and require determined exegetical spade work to uncover. Returning to this passage and the question of arbitration more broadly, I have found a far more complex relationship to exist between the Roman category of arbitration and the rabbinic one.

25Early rabbis describe a robust system of autonomous Jewish tribunals regulating all aspects of criminal, ritual, and civil law, however they say precious little about arbitration. Before I talk about the paucity of arbitration law and what it may mean, however, I will look at what we can glean from the few sources we do have. To what extent is rabbinic arbitration like Roman arbitration, and to what extent has the imperial treatment of Jewish civil adjudication as arbitration impacted rabbinic formulations? It is manifest that related categories of extra-legal compromise under judge-like supervision exists in each system, and they share features. On first blush it is easy to attribute these parallels to arbitration’s common-sensical aura; why make recourse to contact or influence when arbitration as a process seems to be just a legal given? That people should find a range of ways to compromise feel intuitive, proto-legal, essential, and unmarked by historical contingency.29 Loosely defined, arbitration names an ad hoc mode of dispute resolution in which disputants willingly agree to compromise rather than submit to the strictures and uncertainty of formal adjudication. Sources from each tradition depict processes that exist on a scale ranging from barely modified self-help in the form of simple negotiation between parties, to mediation, in which a third party helps disputants to find their own resolution.30 We hardly need to turn to empire to explain the existence of such remedies.31

26Arbitration lies at the end of the continuum of extra legal dispute resolution. This is where disputing parties agree to cede decision-making to a third: a formal arbiter/s. Though these methods of finding compromise are generally extra-legal, at some point, “arbitration” attracts the concern and involvement of the Law. In Roman law this concern is expressed contractually in the compromissum. The tannaitic term bitzu‘a (literally division) aligns with Roman arbitrium ex compromissum on several counts.32

27Among the several common attributes in rabbinic and Roman tradition (allowing of course for exceptions) are the following: (1) Litigants have a say in the selection of arbiters, and agree to abide by their verdict; (2) the framework is extra-legal or para-legal, and arbiters have wide discretion; (3) the more “judge-like” the third party arbiter, the more the Law – however defined – has a vested interest in the execution of the verdict, and puts in place formal mechanisms to safeguard it, often based on binding written documents.33

28In addition to its structural attributes, for Romans and rabbis the discourse surrounding this semiformal extralegal mode of dispute resolution attracts in common a set of animating jurisprudential themes, which double as anxieties. Among them are: the problems resultant from unequal status of disputants or status differential between disputant and arbiter34; the lack of “state” control; and the limits of an arbiter’s discretion. Here, I will focus on two ideas in particular that recur in arbitration talk in both traditions: the idea of the fair versus the just, and voluntarism.

29Literature from both sides invariably remarks on a divide between strict justice and fairness or equity, and does this using a variety of terms.35 Justice names the zero-sum letter of the civil law, which is contrasted with arbitration or compromise – a situation in which everyone gets a little less than they wanted, but everyone get something36: E.g., Plony and Seius each claim to have inherited the same 10 acre plot of land. If their dispute goes to a judge, one will win 10 acres the other get none, in arbitration by contrast, one may be awarded 4 acres the other 6. This divide between justice and fairness (the terms shift, but the concept is stable) is prominent in both Roman and rabbinic sources. Sometimes the dyad is depicted neutrally or functionally, at times used to forward an argument in favor of arbitration, though it is just as often deployed to denigrate arbitration. Which is to say, compromise for some leaves everyone happy, for others, it leaves no one happy.

30On the one hand arbitration accomplishes one of law’s main functions: dispute resolution. Moreover, it advances core legal values of fairness and social harmony. On the other hand, its bottom-up orientation combined with the arbiter’s freedom undermines another set of law’s ideals: namely justice – deemed from the top – and law’s construction of a utopian social order.

31Hear the dichotomy at play in the following: “It is clear,” says Seneca (d. 65), “that the position of a good case is better if it comes before a iudex than an arbiter, because [the arbiter] has complete freedom of conscience restricted by no bounds… and can fix his award not as the legislation and justice demand but according to the influence of humanity and sympathy” (Seneca, On Favors 3, 7, 5). In the Tosefta, Rabbi presumes the same binary when he argues against one who advocates compromises that take account of a litigant’s poverty: “If one judges a case strictly, acquitting the innocent one, and holding the guilty one liable [without reference to poverty], he is the one who acts charitably (tzedaqah)… 37” [I.e., the one punishing the guilty no matter his station is more just and more merciful that the arbiter who shows mercy to the impoverished one.] Both Rabbi and Seneca presume that charity and sympathy intuitively belong to arbitration, justice to the law. However, many sources use the same dyad to arrive at opposite conclusions, bolstering arbitration as preferable to the application of strict law. Now hear R. Eliezer b. R. Yose the Galilean:

R. Eliezer b. R. Yose the Galilean said: Whoever arbitrates/compromises is a sinner [כל המבצע הרי זה חוטא], and he who praises the one who arbitrates blasphemes before the Omnipresent. Concerning this it says, ‘‘He who praises the arbiter [בצע] scorns the Lord (Ps 10:3). Rather, let the law pierce the mountain. And so said Moses: Let the law pierce the mountain. But Aaron would make peace between man and his fellow, as is said, “He walked with me in peace and uprightness” (Mal 2:6).38

32Both perspectives are encapsulated by Rabbi Eliezer ben Rabbi Yose the Galilean who describes a Moses who cleaves to the law because God’s law is not to be adulterated. One who is in favor of compromise effectively blasphemes by ignoring God’s laws and making their own.39 A breath later, Aaron’s extra-judicial rulings are praised for creating social peace through legal compromise (t. Sanhedrin 1:2).

33A second sort of anxiety found in arbitration talk derives from the instability implicit in its reliance on voluntarism. Because litigants must agree to submit to arbitration and its outcomes, and arbiters must agree to arbitrate40 – this leaves a process inherently subject to context, contingency, and breakdown.41 Furthermore, the very existence of arbitration as a legal option acknowledges the agency of the disputant to choose a tribunal.

34The Roman sources are clear on this. Ulpian says plainly that “the praetor compels no one to undertake arbitration” (Dig. 4, 8, 3, 1). The laws concerning arbitration collected in the Digest represent a collective legal reaction to the instability of voluntary adjudication. Though unconcerned with the particular content of the dispute under arbitration, the law focuses instead on the mechanism that permits the state to enforce arbitration’s results: the compromissum. The compromissum’s raison d’être is to manage the voluntarism of the arbitration process and prevent arbiters from recusing themselves, and disputants from appealing or rejecting the arbiter’s findings, and so taking their complaints to the courts.42 Arbitration after all “is intended to end litigation” (ad finiendas lites, Dig. 8, 4, 1).43 Similarly, for Rabbi Shimon b. Gamliel, “Judgment is with three and compromise with two. The power of compromise is stronger than that of judgment, for two people engaged in judgment can retract their ruling, while two who have mediated cannot retract” (t. Sanhedrin 1:9).44 Related, though with some key differences, tannaitic sources see the two processes as separate tracks. Arbitration in tannaitic sources attaches itself to the system of tribunals meant to remove litigation from before Moses (Exod 18; Deut 1); and compare a related distinction in t. Sanhedrin 1:2: “once judgement is completed, one is not permitted to compromise (divide/arbitrate)”.

35We see a similar worry about Jews going to gentile tribunals in R. Eleazar ben Azariah’s opening midrash, and documents called shtare berurin are mentioned in tannaitic sources, which serve a similar function to Roman arbitration documents in holding disputants to outcomes (they are even glossed as compromissin in the Yerushalmi).45 But for a variety of reasons that I will show below, the challenge of the voluntary is handled more obliquely in rabbinic sources than in Roman ones, and is the site of stark difference between the two.46

Seius and Plony: false friends

36From the perspective of comparative law, we see systems with much in common – thinking along similar pathways and logics of justice. Though rabbinic discussion of extrajudicial compromise reached under aegis of a duly appointed judge certainly reflects Roman arbitration, the relationship is far from mimetic.

37In fact, Roman and rabbinic law are elegantly comparable from only a very narrow vantage point. It is an ahistorical point, which sees each legal system as a coherent whole, and thus laws of persons, the appointment of judges, usufruct, slavery, testimonial oaths, wills, and many other points of law can be cleanly compared and contrasted. History, however, forces one to move from ideal systems to entangled social and cultural orders, and in so doing, challenges these harmonious parallels. Arbitration offers us an especially good opportunity to further chart the possibility of comparative jurisprudence after or within history, and its limitations – or at a minimum to help better articulate the methodological challenges of legal comparison within empire.

38We know that rabbinic and Roman law were in practice not remotely commensurate. One must be understood in relationship to a working legal system underwritten by the licit violence of the state, the other, simply, must not. No one needs reminding that the early rabbis did not control courts. The bulk of their many writings concerning tribunals and their processes is fiction.47 The tribunal, arguably, is the most vulnerable part of rabbinic legal theology; it is where ideology meets power, and so where its lack is most evident.48

39The final part of this essay will reflect on rabbinic discourse concerning extra-legal compromise within the purview of judges and courts (as opposed to how they are actually “adjudicating”)49 as a way to show how, precisely because of the imperial context and the rabbis' own precarious position within it, their arbitration discourse ought not be read as analogous to Rome’s, despite every temptation to do so.

40All this to say, that on the topic of arbitration, Seius and Plony are false friends.

41My remarks below grow from the observation that arbitration, both as an institution and an idea, defines the edge of the law – being precisely that which is not strict law, arbitration marks law’s boundaries by definition.50 This liminality is amplified when we move to the ethnic edges of empire. If arbitration marks the limit of strict law, when we speak of the rabbis as provincials, we must ask: Whose strict law? Which edge?

42For the Roman, arbitration is the place where the state ceases to be “concerned” with guilt and liability, or innocence, or process.51 Ulpian (in the Digest [4, 8, 2]) notes in passing the state’s disinterest in the content of what is arbitrated – not requiring the “exercise of jurisdiction” he says, “the matter [of what is arbitrated and how] is free and without restriction”. The praetor’s “care and anxiety” he goes on, are only attracted at the moment the arbiter participates in the contractual procedures controlling the process (namely, the compromissum itself and its enforcement). The praetors’ legal obligation is to enforce the arbitration contract, not to weigh in on whatever problem is being disputed. Later in the Digest (4, 8, 1952) Paulus says that “It is not the business of the praetor what sort of award the arbiter makes”.53

43In a rabbinic nomos, can we identify analogous persons and processes? Is the praetor’s concern functionally like God’s? In what sense can we attribute to God a disinterest in the limits of the claims of Torah and the rulings of the rabbi qua arbiter (be they strict or fair)? What indeed for a rabbi, a walking Torah, exists outside of God’s care and concern? The Roman law shows little interest in spelling out the boundaries of what could be arbitrated however, and where it does, it is concerned with cases where the conflict infringes on the common good or the interests of the state such as murder, sacrilege, and status (Dig. 4, 8, 32, 7).54

44In historical cases of rabbinic arbitration, the Jews not only could have, but likely did, capitalize on the Roman state’s lack of “concern” for what occurred in what to the Romans were arbitral settings, but rabbinic sources themselves do not define their slate of courts as arbitral. Indeed the very existence of a rabbinic category of arbitration implies the reverse.

45Moreover, for the rabbis, “strict law” is of course God’s revealed law.55 This means that any idea of arbitration must face down the theological challenges posed by the very idea of the extralegal, not to mention the problematic related concept of judicial discretion. As a result, the passages that do treat arbitration rather unsurprisingly focus more on the judge/arbiter56 than on litigants or enforcement, and do so through discussions of an ethical and epistemological nature clustered around the idea of Torah.57 This is to say, arbitration is a process that arises not from litigants’ desires, but at the limits of a judge’s knowledge – knowledge of facts, of the law, of God’s will. (An aside – Chris Hayes has shown, and continues to unfurl, how the halakhic engagement with the epistemological is a deeply political one.58)

R. Shimon b. Menasya said: Sometimes one should arbitrate, and sometimes one should not arbitrate. How so? Two people who came before someone to be judged: Before he heard their words, or once he heard their words but did not know in which direction the judgment is tending, he is allowed to say to them: Go and divide. But once he has heard their words and knows which way the judgment is leaning, he is not allowed to say to them: Go and divide.

46The rabbis have defined themselves as those who know, translate, broker and apply, even embody God’s law (Torah).59 A dichotomy that sets communal peace and accommodation against justice would be, for an emergent pietist movement such as the rabbis, as a Scylla and Charybdis – put in modern terms: adhere too closely to a hard line and alienate moderates, tilt too far toward compromise and alienate your base.60 Moreover, given that adherence to Torah’s strict justice is itself already voluntary, the choice posed is less procedural than existential. Without adherents there is no rabbinism.

47And so the dichotomy strict law versus equity takes on yet another hue when filtered through the theme of the voluntary.61 Roman law, it is safe to say, risks very little if a citizen or provincial turns to an alternate legal venue, such as an arbiter.62 Indeed it stands to gain. Arbitration is a pragmatic good to the extent that it extends legal order and recourse to a broad range of peoples without the costs, complications, or involvement of the court system.63 It keeps the peace with minimal investment, it is always “best to reconcile”.64

48Rabbinic texts similarly associate the procedure with peace keeping,65 and unclogging the courts – (think of how arbitration came to relieve the problem of Moses’s over-crowded courts in Shimon bar Yohai’s midrash above.) But taking in the broader horizon, the legal free agent poses dire risks to the rabbis, both sociologically and religiously. Rabbinic discussion of communal peace-making is distinctive from Roman. For the rabbis, whose community is constructed and maintained through paideia not taxation, peace has rather higher stakes.66 Moreover, arbitration in practice offers the benefit of keeping problems within the family,67 avoiding the imperial gaze, and maybe staving off the violence and incursion of the state68 – but it does so at the cost of theo-legal purity.69

49A further difference is that Rome’s exportation of the legal framework of arbitration, such as we saw in the Theodosian Code, is a tool useful for the management of legal pluralism: for the rabbis, by contrast, arbitration is a tool deployed to maintain and manage a monoculture.

50In the Mekhilta, solving disputes was a preamble to proper reception of Sinai, in the ma‘asim collocated by Lapin, pragmatism is a dominant theme. Either way, though rabbinic arbitration may mark the boundary of strict justice, it never steps beyond the edges of Torah.70

51As I hope is by now clear, for the subaltern rabbinic jurist, formal arbitration is not (and cannot be) a natural or pure form of dispute resolution, but only a diminished one. An idea of arbitration exists in both systems, but for the rabbis the discourse of compromise is shaded in every contour by a Roman reality, and this reality further complicates and distorts the modern scholar’s work of comparison at every turn.

52As a final point, I suggest that the most significant evidence for the impact of the Roman tribunal on early rabbinic law is the latter’s near silence on the topic of arbitration.71 From the traces above that I have gleaned from meager sources, we see the shadow of an institution that shares a host of terms and concerns with Rome’s, but rests on different exigencies and foundations altogether, foundations shaped not only by distinctive religious ideas, but by distinctive religious ideas that are formed in subordinate political relationship to a dominant external law.

53Arbitration throws into relief the fragility of the rabbinic category of strict justice – and as such the authority of Torah.

54Historically, the Roman institution of arbitration made space for the rabbi to operate.72 A legal terrain in which the state’s concern was with stable outcomes more than legal process. Thus arbitration names precisely the legal room in which the rabbis could both imagine and assert some measure of quasi-legal autonomy under empire – a space they could inhabit as jurists and judges, where their expertise may be sought and their authority exerted and expanded.73 Ironically, the very legal space permitted by Rome for Jewish legal practice seems to have been more anxiety-producing than empowering.

55It is in the end shocking just how little the rabbis write about arbitration – their own or others’. Everything that exists about bitzu‘a exists in only two brief passages in the tannaitic corpus,74 and neither of these passages is properly halakhic.75 More, as Lapin writes, “rabbinic case narratives occlude some of the very strategies that would have made their judgements effective” in imperial contexts. The sources enumerate no regulation of a procedure whose practical contours and legal quandaries must have faced them daily, and whose clear articulation would have grounded any practical Roman support of rabbinic authority.76 Contrast this to the granular detail with which the rabbis regulate capital trials, for example. The lack of legislation on arbitration (over which they did preside) is the flip side of the same provincial coin which minutely legislates and depicts capital trials (over which they didn’t).77

56This paucity, even lack of legislation, is a howling silence.

57The Roman law on arbitration is itself meager – there is very little evidence in the sources as to exactly what sort of things were arbitrated ex compromisso.78 The laws preserved in the Digest are almost entirely in the service of enforcement of outcomes. This function – enforcement at its purest – is the significant missing piece in our comparison between the Roman and rabbinic treatments of arbitration. If we follow the Roman model in which the laws of arbitration are about enforcement of outcomes, it becomes quickly apparent how arbitration law makes manifest precisely what the rabbinic sources need to mask – that enforcement is beyond their reach, that all of their tribunals and any compliance with their rulings are voluntary, that anyone can choose another judge, that strict law and compromise are up the litigant, and not to God.

58So to conclude: attention to the imperial context shows that apparently similar legal structures and concepts may demand entirely different hermeneutics.79 In this the case of arbitration carries forward some of the caveats and arguments laid out so lucidly by Ishay Rosen-Zvi, cautioning against an unexamined notion of the existence or meaning of fluidity, influence, or parallels between Roman and rabbinic laws.80 The rabbinic notion of bitzu‘a and its uneasy relationship to Roman arbitration provides us another data point that complicates any easy comparison of the rabbinic and Roman legal projects. Arbitration as a category of law is a luxury of jurisdiction, which is to say: a category of voluntary law that is by definition outside the economy of strict summons and enforcement only makes sense when the latter exist. Given that the rabbinic tribunal, such that it was, was only ever in practice arbitral, the significance both of how arbitration is defined and how it is ignored are significant in ways utterly distinct from those portended by the Roman institution.

59The arbitration discussed explicitly by the sources must on one level be dissociated from arbitration’s reality as the horizon of practice. Yet that same historical horizon should anchor the analysis of the jurisprudence of the sources. It is a tricky line to walk. Arbitration may appear to make sense internally, but empire short circuits the system’s common sense.

60Injecting the imperial context changes the deep logic of the rabbinic category, underscoring the simultaneous ubiquity and impossibility of the extralegal. Rabbinic arbitration threatens to make a mockery of the law qua law from within. The reticence of the sources tells us the rabbis are keenly aware of the conundrum it poses.