AHRC-DFG Collaborative UK-German Research Project in the Humanities (2023-26).
In his programmatic writing, “Etwas über die rabbinische Literatur” (“Something About Rabbinic Literature”), published in 1818 and considered the foundational text of the so-called Science of Judaism (Wissenschaft des Judentums), Leopold Zunz already pointed to the legal discussions in the Bavot tractates of the Talmud, emphasizing the need to systematically compare them with Roman law: “Even more interesting is the task to systematically compare the teaching about culpa, conducted so perceptively in the talmudic בבות, with Roman law” (ibid. 12, translation from the German by CH). Since then, scholars of rabbinic literature have conducted thematic comparisons between rabbinic and Roman law (e.g., Boas Cohen and David Daube), but no one has ever undertaken a systematic study of the legal issues addressed in the Bavot tractates of the Talmud Yerushalmi in the context of (Hellenistic and) Roman law until we took up this task in our collaborative and interdisciplinary research project from 2023 onwards. Our research will lead to the publication of the Legal Compendium to the Talmud Yerushalmi: The Bavot Tractates in the next few years. To carry out this work, close collaboration between an expert in the Talmud Yerushalmi and an expert in Roman law is necessary. A joint three-year AHRC-DFG grant enables us to conduct this research project with our London- and Marburg-based teams.
Our first task was to select ten texts in each of the three Bavot tractates that address legal topics that are interesting from both a rabbinic and Roman (and/or Hellenistic) legal perspective. To identify such texts was not that easy, because we limited our project’s focus to those Yerushalmi discussions that go beyond the Mishnah and introduce new aspects that may reflect late antique amoraic rabbis’ and/or the anonymous Yerushalmi editors’ legal concerns. The selected topics and analyses should be of interest to both students and scholars of rabbinic literature and of ancient legal history. Comparative Roman legal material can mainly be found in Justinian’s Digest of Roman civil law, compiled between 530 and 533 C.E., which is based on juristic writings of the first century B.C.E. to the third century C.E. and reflects the lasting validity of the “classical” juristic tradition in late antiquity. For some legal issues additional Hellenistic legal evidence is available in the form of Greek papyri, mainly from Egypt. This material is sometimes more similar to rabbinic views than the Roman legal sources, suggesting regional differences in legal practices between the Near East and Roman Italy.
The material we selected covers a wide range of subject matters that are addressed in the Bavot tractates as well as in Roman (and/or Hellenistic) law, ranging from compensation for damages incurred by one’s cattle to accepted modes of acquisition of property and questions of inheritance law. It becomes evident that rabbis discussed and were confronted with many of the same legal issues that Roman jurists dealt with. The comparison of rabbinic discussions with Roman jurists’ views often reveals the elliptic and rudimentary manner in which the rabbinic traditions are preserved. The lack of detail may have given individual rabbis more leeway in handling things or indicate a more theoretical level of discussion. The rudimentary style may also be a particular feature of the Bavot tractates, which are often considered to have been edited earlier than the rest of the Yerushalmi, reflecting an earlier stage of compilation (Wewers 1984; Hezser 1993: 362-77, where Lieberman 1931 is discussed). The elliptic style may also reflect rabbinic reliance on oral transmission in contrast to the Digest editors’ use of written sources. Interestingly, some Babylonian Talmudic parallels to Yerushalmi discussions may reflect greater similarities to the Roman legal approach than the Palestinian texts, perhaps reflecting a certain knowledge of Roman law in Jewish Babylonia in the fourth to sixth centuries.
Our text analyses and discussions are based on manuscript comparisons and new translations of the Yerushalmi texts. Translations always reflect the translators’ individual understandings of the texts and may lock meanings, whereas our aim is to indicate all inherent interpretive possibilities. This also applies to the Latin legal texts, but less so, since they usually provide more details, leaving less space for speculation. The new translations are followed by text analyses, taking the Yerushalmi discussions’ relation to the Mishnah and available parallels elsewhere in the Yerushalmi – and also in the Bavli if it resembles the Escorial manuscript version of the text – into account. In a next step the ancient legal context of the respective Yerushalmi discussion is presented: How was the legal topic approached by Roman jurists? Which additional aspects of the problem did the jurists address? What were the underlying legal principles and practices? Is Hellenistic evidence on the topic available, e.g. in the form of Egyptian papyrus documents? The final part of each chapter is a comparative discussion in which the similarities and differences between rabbinic, Roman (and Hellenistic) law are evaluated and possible reasons for the differences suggested.
The most obvious points of convergence between rabbinic and Roman law are rabbinic references to Roman institutions, such as the chrysargyron (y. B. Qam. 3:1, 3c), a late antique business tax (collatio lustralis) collected from merchants for the imperial treasury from the time of Constantine I onwards until the emperorship of Anastasius. While the fourth-century rabbis who formulated the text seem to have been familiar with the tax, many procedural aspects remain uncertain: Which types of professionals were targeted and were craftsmen included? Were tax registers maintained in Roman-Byzantine Palestine? How was the tax collected in this distant eastern province and how was the payment enforced? Egyptian papyrological evidence suggests that a register of tradesmen was compiled by local officials – should we assume that this was the case in Palestine as well? This also leads to the wider question of “official” and “black” markets and to professional organizations (guilds) with specific rights and duties.
Also of particular interest are direct references to Roman legal experts urban rabbis seem to have been familiar with. For example, when discussing the issue of female succession (y. B. Batra 8:1, 15d-16a), “non-Jewish sages” who taught that “a son and a daughter are equal” in inheritance if male and female children exist, are explicitly mentioned. This rule reflects Roman law, where inheritance was regulated in a gender-neutral way in intestate succession. By contrast, the traditional Jewish (biblical and rabbinic) law enabled daughters to inherit their fathers’ property only if there were no sons (cf. Num. 27:8). Both rabbis and Roman jurists agreed, however, that the deceased householder’s daughter preceded his brothers, i.e. her uncles, in inheritance rights, since the latter belonged to the second level of agnates only. The strict (Hellenistic and) Roman distinction between testate and intestate succession seems to be absent in Palestinian rabbinic law. Written testaments are not discussed in this connection. Perhaps the different socio-economic backgrounds of rabbis’ and jurists’ clientele played a role here. Rabbis may have mostly adjudicated fellow-Jews from the lower and middle strata of society, who had relatively few possessions and could not afford or did not bother to commission written testaments (although testaments are also sometimes mentioned in rabbinic sources). Wealthier upper-class Jews are likely to have adopted Graeco-Roman succession practices, especially if they wanted to bequeath property to daughters, as Josephus’ references of inheritance practices within the Herodian family suggest. Roman jurists, on the other hand, belonged to the upper strata of society and mainly advised their social equals. Among this socio-economic group, intestate succession may have been a rare occurrence.
Both rabbis and Roman jurists condemned those who caused others bodily harm to pay their medical costs and cover their lost salary. What happened, however, if secondary medical problems developed, which raised the healing costs and required a longer recuperation? Such secondary problems could evolve if wounds did not heal properly and ulcers or scars developed (y. B. Qam. 8:2, 6b). Does the biblical commandment to “thoroughly heal” the injured person (Exod. 21:19) mean that continuous follow-up costs have to be covered? Rabbis argued that one had to make sure that the patient him- or herself was not responsible for the complications, that (s)he did not act against the physician’s recommendations, for otherwise the culprit was free from further liability. While some rabbis were against extended sick-payments, others were in favor of it. Roman law also mentions the requirements to pay for the victim’s medical costs and to compensate him for his lost salary but is less detailed on medical complications. In the Yerushalmi the development of scab and in the Bavli a scar (Abaye in b. B. Qam. 65a: cicatrix) are considered medical conditions that require treatment, whereas Roman law viewed scars as merely aesthetic aspects of the body. The extension of salary compensation for the entire healing period was dealt with by Roman jurists in an alternative way: salary compensation also involved future loss of income in case medical issues interfered with work. The Yerushalmi’s focus on the possible continuity of ill-health is replaced by the possibility of intermittent temporary sick-leave here.
The comparisons not only enable us to deal with important legal problems that were relevant to rabbis and Roman jurists but also lead to wider issues of the relationship between rabbinic, Roman, and Hellenistic law in the Near East. An important issue is legal hybridity. Like Egyptian law in first four centuries C.E., which evinces a mixture of local Egyptian traditions, Greek law, and Roman imperial law, rabbinic halakhah must also be seen as hybrid: “indigenous” legal traditions based on Torah law further developed in the context of Hellenistic and Roman law and were changed and adapted to their legal environments in this process. Especially in areas of civil law, which included family law, property law, and business relationships, overlaps between rabbinic, Roman (and Hellenistic) law are noticeable. In our project we quickly noticed that we are “speaking the same language”. Similarly, rabbis and Roman jurists would have recognized (and probably conversed with) each other, especially in urban centers such as Caesarea. Sometimes specific Near Eastern traditions that differed from Roman practices are noticeable which Roman jurists seem to have been familiar with, e.g. with regard to the horizontal division of ownership of a house – e.g., one person owns the ground floor, whereas another person owns the upper room – in contrast to the Roman principle that the land-owners own everything that is built on their land – according to the rule superficies solo cedit – jointly and on a pro-rata basis. Such awareness of diverging legal practices could be mutual rather than one-sided, a feature that ancient legal historians might need to consider more.
The ultimate goal of our project is to integrate the study of rabbinic law into ancient legal history, to break the traditional boundaries between academic legal studies’ predominant focus on western (Greek and Roman) legal traditions while rabbinic law is delegated to Religions departments. Everyone studying and researching ancient legal history should be invited and encouraged to take rabbinic private law (from antiquity to modernity) into account. In the future, a legal commentary to the Talmud Yerushalmi, which would integrate rabbinic legal discussions within the late antique New Eastern and Roman-Byzantine legal context would not only improve our understanding of rabbinic halakhah in the Land of Israel but also make legal historians aware of the Yerushalmi as a treasure trove of ancient private law.
Bibliography:
Cohen, Boas. Jewish and Roman Law. A Comparative Study, 2 vols. (New York: Jewish Theological Seminary of America, 1966).
Daube, David. Collected Works of David Daube, vol. 1: Talmudic Law, ed. Calum Carmichael (Berkeley, CA: University of California Press, 1992).
Hezser, Catherine. Form, Function, and Historical Significance of the Rabbinic Story in Yerushalmi Neziqin (Tübingen: Mohr Siebeck, 1993).
Lieberman, Saul. The Talmud of Caesarea [Hebrew] (Jerusalem: Supplement to Tarbitz II.4, 1931).
Wevers, Gerd A. Probleme der Bavot-Traktate. Ein redaktionskritischer und theologischer Beitrag zum Talmud Yerushalmi (Tübingen: Mohr Siebeck, 1984).
Zunz, Leopold. Etwas über die rabbinische Literatur, nebst Nachrichten über ein altes bis jetzt ungedrucktes Werk (Berlin: In der Maurerschen Buchhandlung, 1818).