Bryn Mawr Classical Review

BMCR 2018.03.41 on the BMCR blog

Bryn Mawr Classical Review 2018.03.41

Kimberley Czajkowski, Localized Law: The Babatha and Salome Komaise Archives. Oxford studies in Roman society and law.   Oxford; New York:  Oxford University Press, 2017.  Pp. xii, 240.  ISBN 9780198777335.  $105.00.  


Reviewed by Tristan Taylor, University of New England (tristan.taylor@une.edu.au)

Preview

Localized Law seeks to analyze the famous Babatha and Salome Komaise archives using a different approach than one centered on the oft-examined question of what legal systems are present in the documents. Rather, in a revised version of her doctoral thesis, Czajkowski builds on developments in the analysis of legal pluralism in the Roman empire to consider the ‘varying contributions, considerations and influences that led to the papyri being written the way that they were’ (p 23). As such, the work offers a stimulating study that embraces the legally heterogeneous nature of the documents and highlights the multiplicity of potential influences in their formation—both in terms of individuals and systems—even though the documents rarely provide straightforward answers to the questions asked of them.

Following an introduction that sets out what little we know of the Roman annexation of the Nabataean Kingdom in 106 CE, chapter 1, ‘Beginning to Reinterpret the Archives’, provides a brief history of both the analysis of these particular documents and general trends in the study of local law under the empire. It also offers an outline of the content of the archives, including the transactions and agents involved. This is followed by three specific case studies: three marriage contracts, the dispute between Babatha and her son’s tutors, and the dispute over Babatha’s husband’s estate. These case studies outline in more detail the relevant legal disputes; flag the scholarly disputes that have arisen in relation to the applicable legal system in each case; and detail the further questions to be considered in the rest of the study.

Chapter 2 considers the role of ‘Scribes’, agents whose presence problematizes discussion of the unmediated ‘voice’ of the parties themselves since their intentions are, almost always, mediated through such scribes working within their own particular culture and utilizing rhetorical topoi and legal phrases. Czajkowksi examines the reasons for choosing scribes, such as a desire to write in a particular language—especially Greek after the Roman annexation—and the identity of the scribes themselves. Czajkowski argues that these scribes are likely to be locals who learned Greek, attached to the Roman administration, rather than newcomers. Czajkowski’s arguments are all compelling; nonetheless, as with many questions asked in this work, the nature of the parties’ motivations for choosing scribes are not clear on the face of the documents themselves. Thus, as Cjazkowski states, ‘[i]n some ways, we are left trying to second guess very individual opinions that remain difficult to chart even in such a small, concentrated evidence base’ (p. 70).

Chapter 3 looks at ‘Legal Advisors’, although none are explicitly mentioned in the archives. After considering the role of such advisors generally based on comparative evidence, Czajkowski argues convincingly that legal advisors were most likely responsible for identifying and preparing three copies of the Roman formula for the actio tutelae for the illiterate Babatha. The presence of these formulae show a willingness to use Roman legal forms and indicate the presence of people with expertise to identify and manipulate Roman legal documents. The formulae have also long posed a puzzle in that they do not fit the legal circumstances of the case well and appear not to have been used in litigation. Czajkowski identifies several possible solutions, including that multiple copies were intended for use in litigation, but the chance did not arise to do so; that Babatha was preparing to sue at the expiration of the guardianship; and that the formulae were intended to be used as a ‘bargaining chip’ or threat in negotiations with her son’s guardians. The documents do not admit a definitive answer, but the latter solution finds an analogy with one known use of rescripts and other documents in legal disputes found in other sources.

Chapter 4 turns to the ‘Parties’ themselves, focusing in particular on the choice of language in the documents, and attitudes towards Roman legal forms and processes. In relation to the first question, Czajkowksi offers suggestions for both the persistence of Jewish and Nabataean Aramaic in some documents, and the switch to Greek in the majority. The former demonstrates that there was no legal requirement to use Greek, or Latin, the latter clearly reflecting a belief in the importance of Greek in interactions with the Roman authorities. Again, Czajkowski’s various suggestions are compelling, although identifying which motivation is at play in any particular document is difficult. The concession is again made—in relation to the persistence of Aramaic, but applicable to other questions as well—that ‘different people within a community may have come to different conclusions about what they could, should or wanted to do’ (p. 113). In addition to a general tendency to change to Greek after the Roman annexation, there is also the inconsistent adoption of various Roman forms, such as the appearance of guardians for women, or the presence of Roman legal formulae, such as the actio tutelae, discussed above, or stipulatio clauses at the end of documents. Czajkowski plausibly explains these features as stemming from efforts to inform or persuade Roman officials or, as in the case of the stipulatio clauses, a belief that such clauses gave legal effect to transactions in a Roman forum. At the same time, explicit references are made in the documents to ‘Greek law’ (nomos), and the ‘law of Moses and the Judeans’. Czajkowski sees these references as attempts to appeal to an authority—to precedent or custom—that might be persuasive to a Roman decision maker, rather than intended primarily to select a particular body of law or rules. This is an intriguing argument worthy of general consideration. However, the specific context in which these phrases appear could perhaps have been explored in more depth here, in particular, the fact that all such references in the archives that she considers here are in marriage contracts. For example, two marriage contracts in Greek contain an undertaking by the husband to feed and clothe the wife and future children in accordance with Greek nomos (whatever this might mean: P. Yadin 18 and P. Hever 65). As these phrases are private contractual undertakings, one wonders whether more could be said here about the possibility that they expressed some shared understanding between the parties and were not designed primarily to impress a Roman adjudicator in future litigation. The contractual nature of these phrases is discussed in Chapter 1, but the implications of this for this argument are not specifically considered here.

Chapter 5 considers ‘Alternatives to Assizes’ and ponders what local courts may have survived the Roman annexation. After a brief summation of the anthropological debates about the nature of ‘law’ and norms that may exist beyond the positivist sense of law as the dictates of the sovereign, consideration is given to the patchy evidence surrounding local jurisdiction under the empire in relation to poleis and villages. The chapter also examines dispute resolution within Jewish communities by figures of authority and, finally, processes of arbitration. This is perhaps the most speculative of the chapters, with little clear evidence for Roman Arabia, and the archives themselves yielding not much beyond a reference to the boule of Petra assigning a guardian, and two possible waivers of claim. These waivers may, or may not, represent the involvement of a third party (none is mentioned) through arbitration or some other method of ‘alternative dispute resolution’, such as mediation or negotiation. Nonetheless, Czajkowski’s argument that alternative forms of jurisdiction or judicial institutions—however informal they might have been– existed in addition to the Roman system are sound, as is her conclusion that that the coming of Rome was unlikely to have ended such local mechanisms.

The final substantive chapter turns to ‘Roman Officials’. It focuses in particular on the variable background of the governor and his advisors as well as the principles that would govern his decisions. After considering briefly the complex topic of the lex provinciae and its relationship to the provincial edict, this chapter addresses the question of what principles the governor may have used in deciding cases by type of evidence. It considers legal literature (particularly Digest 1.3.32—long suspected of post-classical interpolation); Rabbinic literature; Pliny’s correspondence with Trajan and, finally, papyri. The generally consistent pattern that appears across this body of evidence—that Roman officials were willing to find out about local laws and customs, but did not always apply them—may have emerged more directly through a holistic approach, than through subdividing the question by type of evidence. Next, attention turns to the various means by which a Roman governor might have obtained legal advice, such as his consilium, legal advisors, and documents. Czajkowski argues that governors placed particular reliance on documents and therefore litigants would try to present their documentation in accordance with the Romans’ perceived preferences. This is indeed reflected in archives, where many of the documents appear to have been composed with a view to the dispute appearing before the governor, although it is unclear how many ultimately ended up in the governor’s court. Babatha’s disputes with her son’s guardians and battles over the property of her deceased husband are then examined again to assess the impact of the presence of the Roman legal system on how people conducted their legal disputes before reaching the courtroom. Here, Czajkowksi argues compellingly that the invocation of the governor could be a strategic means of influencing proceedings and thus served as ‘a threat and a bargaining chip’ (p. 192) in a legal dispute.

The ‘Conclusion’ follows, which begins by acknowledging the clear interdependence of the systems and culture approaches to the analysis of local law. Czajkowksi argues, however, that provincials did not think in terms of systems, but authorities through which they might gain favour and lend weight to documents or transactions. Czajkowski concludes convincingly that the way disputes played out was largely contingent on those involved. Two factors were seen as vitally important: first, the language facility of those involved in drafting the documents, and the collaborative process involved therein; second, differing levels of knowledge among the participants, and the exploitation of this to gain advantage.

The conclusion finally notes two aspects of identity that receive little emphasis in the documents themselves: first gender, with the women in the documents generally acting with freedom in their legal affairs; and second, the Jewish identity of those involved. Czajkowski argues that the very fact that these two aspects of identity are not emphasized in the documents, or in their analysis, may be telling in and of itself. These questions will likely be fruitful avenues for further study.

The study offers a revealing account of a provincial legal culture adapting to the new Roman presence and shows the persistence of traditional forms and the atmosphere of imperfect knowledge within which both provincial and new imperial master operated. The great challenge for the study, with its focus on those involved and their intentions, is that the documents so rarely admit clear answers. For example, should we see a party’s use of a clearly Roman form that appears inapt to the circumstances—such as the actio tutelae—as a reflection of that party’s ignorance, or an attempt by one party to exploit the ignorance of the other (as clever strategic threat) or, perhaps, neither of these? To her credit, Czajkowski consistently admits these areas of doubt, and her range of possibilities are always compelling, if not exhaustive, and are sure to prompt both further thought and investigation.

The book is throughout clearly written and engaging, although non-specialists in Roman law should be prepared for some technical terminology and assumed knowledge.1

All in all, this is a stimulating book that takes great advantage of the rare opportunity to shed light on provincial legal culture outside of Egypt that these archives provide. It will be required reading for those interested in legal culture and legal change in the Roman provinces.


Notes:


1.   See for example the somewhat technical explanation of ‘stipulatio’ as a ‘stricti iuris’ and ‘unilateral’ contract (p. 32 n. 23) and the compressed discussion of the probable post-classical interpolation of Dig. 1.3.32 (p. 172).

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