BMCR 2022.07.13

Legal engagement: the reception of Roman law and tribunals by Jews and other inhabitants of the Empire

, , , Legal engagement: the reception of Roman law and tribunals by Jews and other inhabitants of the Empire. Collection de l'École française de Rome, 579. Rome: Publications de l’École française de Rome, 2021. Pp. 544. ISBN 9782728314645 €40,00.

Open Access
[Authors and titles are listed below.]

Vergil proclaimed that it was Rome’s destiny to “rule the nations with its imperium and to set law upon peace.” Romans took great pride in extending their law to peoples and provinces under the sway of their vast empire. Just what this meant on the ground, however, is a tough question to answer since Rome did not blot out local laws and tribunals. That is the objective of this ambitious and welcome volume. What was the relationship between Roman jurisdiction and provincial legal practices and procedures? How can we determine the boundaries of access to the wheels of justice in distant parts of the empire? The editors assembled twenty-one papers emerging from two conferences, one in Oxford in 2015 and one in Aix-en-Provence in 2018.

The principal point of comparison inevitably is that between the Roman legal system and the legal discourse of the rabbis. That is where our principal evidence resides and  represents the focus of most of the papers. The two systems emerged in tandem, a fact that naturally stimulates inquiry into questions of influence, adaptation, reaction, overlap, or resistance. No short review, of course, can do justice to twenty-one scholarly essays with varied approaches to this complex subject. A sketch of the structure and content of the volume will have to suffice.

The initial segment, oddly enough, seems somewhat detached from the main thrust of the collection and the era to which it is largely devoted. Carlos Levy’s paper treats Cicero’s attitude toward “barbarians,” a barely relevant topic and one considered only very selectively, omitting almost entirely reference to the speeches. Julien Dubouloz does take up the Verrines, and his discussion of the Greek/Sicilian and Roman legal aspects of tax law in Sicily is illuminating. But his (quite proper) emphasis on the rhetorical character of the speeches hampers any broader conclusions. Clifford Ando’s subject is a wider one of drawing out Republican images and ideology in the exercise of jurisdiction in imperial times. That large investigation is worth undertaking, but the few illustrations in a short paper can only whet the appetite without sating it.  These three quite different contributions do not effectively set the stage for what follows.

The next section focuses on literary representations of judicial proceedings. Ari Bryen opens with a document that imaginatively recreates criminal hearings before a Roman governor in a provincial setting. How far the inventive monologues and dialogues that supplied theater and drama represent the reality of judicial administration in the provinces is questionable, but Bryen draws upon them to give some sense of local perception of imperial justice. Kaius Tuori considers a closely comparable text, the Acta Isidori, part of the Acta Alexandrinorum, involving fictive hearings before the emperor Claudius as Alexandrian Greeks both leveled charges against Jews and brazenly criticized the emperor. For Tuori these stories offer a window on provincial expectations of emperor as judge, but the suggestion that they may have subtly guided imperial behavior seems far-fetched. Hayim Lapin turns attention to rabbinic tales of Jewish martyrs which he effectively sets in the literary context both of the Maccabean martyr traditions and of Christian martyr narratives. The article shows a sensitive appreciation of the cross-currents of these representations.

The third section of the volume turns to some realia. Aitor Blanco-Pérez examines a number of inscriptions relating to petitions to and responses from the emperor in the 3rd century CE. The documents indicate a well-developed system that gave provincials an avenue to a range of imperial officials at least in the east. Epigraphic evidence, mostly from Asia Minor, also forms the basis of Julien Fournier’s study of the ekdikoi, the representatives of a city’s interests before a larger judicial authority. He traces the institution’s development from the Hellenistic period through the principate, and finds a gradual transformation from an ad hoc instrument to a permanent office. This offers a useful instance of intermediaries between peregrine communities and Roman jurisdiction. But the essay might have given readers a fuller account of the actual activities and functions carried out by the ekdikoi, and a better sense of their effectiveness in representing local interests at a broader judicial level. Capucine Nemo-Pekelman shifts attention to the west and to Jewish patrons of both individuals and communities before provincial courts and Roman tribunals. Investigation of these advocates discloses that they were mostly non-professionals and of middle-class origins. These relatively humble backgrounds, however, do not explain the fact that the Jewish patrons must have had legal and rhetorical training. Nemo-Pekelman does not pursue that apparent anomaly.

The segment that follows treats a topic central to the volume: the interaction of plural legal systems in the Roman empire. Soazick Kerneis offers some intriguing examples, including a Celtic tile evidently recording a marriage contract that reflected divergent traditions, and curse tablets from Britain suggesting a complex relationship between local practice and Roman expectations. The article provides a glimpse of legal pluralism, but does not explore the consequences or raise the question of how representative these select examples may be. The paper of Marie Roux pursues the topic in another western site, the Visigothic kingdom of Toulouse, in which she finds amidst the legal pluralism many holdovers from earlier Roman law. The study, however, treats a range of diverse matters, the legal privileges of aristocrats, the prerogatives of the militia, episcopal jurisdiction, and Jewish courts, which do not come together in a coherent presentation. The result is more confusion than enlightenment. Kimberley Czajkowski looks to the east for examples of legal pluralism, specifically three Jewish marriage contracts from the Judaean desert. They hold special interest because two are in Greek and one in Aramaic, thus offering an opportunity for a contrast in legal principles.  Czajkowski, however, rightly avoids the Greek/Jewish binary, finds overlap between them and differences between the two documents in Greek. Her suggestion that particularities may be due more to scribal practices than cultural distinctions or state intervention is a salutary one. The extent to which this limited sample can shed light on legal pluralism or diversification in the empire, however, is quite limited.

A pivotal paper in this assemblage is that of Yair Furstenberg. It belongs not in the previous fourth segment where the editors placed it, but in the following fifth section which deals with the impact of imperial law on rabbinic law. Furstenberg’s fine contribution raises the defining question of how much the creation of rabbinic law owed to Roman imperialism in the east. He argues cogently that the motivation for a codified system of Jewish civil law did not come from a desire to create an alternative religious system to Roman legal authority; Roman legalism neither served as a model for the rabbis nor as an object of resistance. Instead, the corpus of Jewish law developed as Jews shaped their own practices to make them more intelligible and acceptable in Roman courts. The codification of Jewish law, for Furstenberg, was less a matter of conforming to imperial rule than a reframing of biblical material so as to shape a distinctive legal system within the aegis of Roman power.

The essays of the fifth segment explore diverse intersections between Roman and rabbinic law. Catherine Hezser quite properly asks whether the idea of Roman “impact” is even useful in a Palestinian environment where a whole range of legal traditions coexisted. She further notes that recourse to Roman courts by Jews depended on ease of access, location, level of education, social status, linguistic capacity and the possession of Roman citizenship (or lack thereof). On top of this, the circumstances of occupations and professions would help to determine the degree of knowledge of Roman laws and practices. Hezser successfully complicates the simplistic dichotomy of one culture’s imposition upon the other. From the general to the specific, Orit Malka and Yakir Paz find a number of parallels in the two systems’ treatment of privileges lost or retained by captives who regained their freedom. Their close and detailed reading of passages in the Tosefta as compared with the Roman principle of postliminium brings out both congruent and contradictory aspects. In their view both agreement and disagreement attest to the rabbis’ deep engagement with Roman legal concepts. I’m not sure that the example of postliminium warrants that conclusion, but it is a revealing instance of correlation. Similarly striking is the congruence between Roman law on new citizens and tannaitic pronouncements on proselytes. That matter is acutely explored by Yael Wilfand who points to similarities with regard to loss of kinship rights and parental ties in each case. There is, of course, a considerable difference between change of citizenship status and conversion to a creed with its rituals, beliefs, and practices. Wilfand does not adequately acknowledge that gap. The similarities in these rulings cannot establish the influence of Roman law upon rabbinic thinking. Nevertheless, Wilfand’s pointing to these remarkable parallels is a welcome stimulus for further thought. Natalie Dohrmann’s incisive article on arbitration moves in the opposite direction. She deconstructs the ostensible parallels between Roman and rabbinic practices in arbitral judgments and stresses the sharp and fundamental differences. She rightly points to the matter of enforcement, on which Jewish tribunals would have to rely upon imperial authority. And, more fundamentally, the voluntary character of arbitration allows the state in Roman law to divorce itself from judgment, whereas the rabbis as keepers of God’s law cannot easily give free agency to arbiters. Although the principal of arbitration exists in both cultures, the rabbis stand under the shadow both of a Roman reality and a theological imperative.

A final segment of four papers addresses the general issue of Jewish self-perception in the context of their relation to Roman law and courts. Katell Berthelot tackles the issue of Jewish ambivalence toward the jurisdiction of Roman courts. She valuably cites certain rabbinic texts that associate gentile tribunals with idolatry and thus reject their authority to deliver legal decisions affecting Jews. Yet she acknowledges that as a practical matter Jews could hardly escape gentile judgments in civil law disputes. Just how one reconciles these two positions remains quite unclear. Berthelot appeals to the fact that rabbinic sources are generally silent on the oaths, statues, and rituals that Jews might encounter at pagan tribunals as a means of underscoring the legitimacy of their own judicial bodies and their relation to the divine. This does not entirely resolve the tension. Ron Naiweld takes the analysis further, but with a different emphasis. He draws on the Mishnah to argue that the religious basis for Jewish law is actually analogous to Rome’s own confidence in divine protection as encompassing a legal providence for all subjects of the empire. But he observes that the universalism of the Roman system was at odds with the particularism of Jewish ideology. The distinction is clear. Whether this makes the Mishnah a “monument of resistance,” however, is another matter and less compelling.

One paper only is devoted to early Christianity. Kimberley Fowler shifts interest from the practicalities of living with both Roman and Jewish law to the ideological manipulation of both by Christian authors to establish the primacy of their faith. Her discussion shows that writers like Tertullian and the author of the Didascalia Apostolorum, by associating Roman law with the teachings of Moses, thereby denigrated both by comparison with the values of Christianity. She then complicates this analysis by examining some 4th century Christian texts composed in an era when the empire embraced Christianity and thus represented Christianity and its Jewish heritage as compatible with Roman law. The final essay by Christine Hayes veers away from the principal orientation of the other papers which focus upon the application of legal principles and appeals to law as a means of comparing or contrasting Roman values with those of the Jews and other non-Romans. She sets her sights instead on the classic dichotomy of “Greek” and “barbarian” as a means of slandering the “other” and sees it as ethnic polemic adapted not only by the Romans but even by the rabbis and the Church Fathers. This is an inventive approach, but it often seems rather strained. “Barbarian” appears in the overwhelming majority of Greek texts to mean simply “non-Greek” and does not usually carry all of the tropes of brutality, inhumanity, and lawlessness that Hayes assigns to it. Greeks, Romans, Jews, and Christians all indulged in slanderous depictions of their foes. But the label of “barbarian” was rare, and Hayes’ point could be made without resorting to it. More fruitful are her interpretations of rabbinic texts that employ Roman legal executions as a means of revising and neutralizing Jewish death penalty laws. That is an acute and productive analysis, with the nice suggestion that the rabbis turned Roman legal categories against the Romans themselves.

The editors of this volume deserve commendation for a rich assemblage of papers by leading scholars in the fields of Roman or Jewish law. Whatever reservations one might have about particular arguments or interpretations, the collection as a whole is insightful, stimulating, and rewarding.

Authors and Titles

Part I: Roman Law, Provincials, and Barbarians
1. Carlos Levy, Cicero, the Law, and the Barbarians
2. Julien Dubouloz, Accommodating Former Legal Systems and Roman Law: Cicero’s Rhetorical and Legal Viewpoint in the Verrine Orations
3. Clifford Ando, Performing Justice in Republican Empire,1-565 CE

Part II: Imperial Justice as Drama
4. Ari Bryen, A Frenzy of Sovereignty: Punishment in P. Aktenbuch
5. Kaius Tuori, Between the Good King and the Cruel Tyrant: The Acta Isidori and the Perception of Roman Emperors Among Provincial Litigants
6. Hayim Laapin, Pappus and Julianus, the Maccabean Martyrs, and Rabbinic Martyrdom History in Late Antiquity

Part III: Provincial Negotiation with the Imperial Legal System
7. Aitor Blanco-Pérez, Appealing for the Emperor’s Justice: Provincial Petitions and Imperial Responses Prior to Late Antiquity
8. Julien Fournier. Representing the Rights of a City: Ekdikoi in Roman Courts
9. Capucine Nemo-Pekelman, Jewish Judicial Patrons and Advocates in the Western Empire (5th cent.)

Part IV: Legal Pluralism Under Empire
10. Soazick Kerneis, Legal Pluralism in the Western Roman Empire: Popular Legal Sources and Legal History
11. Marie Roux, Judicial Pluralism in the Wisigothic Kingdom of Toulouse: Special  Jurisdictions and Communal Courts
12. Kimberley Czajkowski, Legal Knowledge and its Transmission in Three Marriage Contracts from the Judaean Desert
13. Yair Furstenberg, Imperialism and the Creation of Local Law: The Case of Rabbinic Law

Part V: The Impact of Imperial Law on Rabbinic Legal Thinking
14. Catherine Hezser, Did Palestinian Rabbis Know Roman Law? Methodological Considerations and Case Studies
15. Orit Malka and Yakir Paz, A Rabbinic Postliminium: The Property of Captives in Tannaitic Halakha in Light of Roman Law
16. Yael Wilfand, “A Proselyte Whose Sons Converted with Him”: Roman Laws on New Citizens’ Authority Over their Children and Tannaitic Rulings on Converts to Judaism and their Offspring
17. Natalie B. Dohrmann, Ad Similitudinem Arbitrorum: On the Perils of Commensurability and Comparison in Roman and Rabbinic Arbitration Law

Part VI: Law and Self-Perception
18. Katell Berthelot, “Not Like our Rock is their Rock” (Deut. 32:31): Rabbinic Perceptions of Roman Law Courts and Jurisdiction
19. Ron Naiweld, The Rabbinic Model of Sovereignty in its Biblical and Imperial Contexts
20. Kimberley Fowler, Early Christian Perspectives on Roman Law and Mosaic Law
21. Christine Hayes, ‘Barbarians’ Judge the Law: The Rabbis on the Un-civil Law of Rome