Comparing rabbinic and Roman law

1Palestinian rabbis and Roman legal experts seem to have functioned in close proximity in Roman Palestine. Rabbinic documents, especially the Talmud Yerushalmi, deal with some of the same issues that Roman jurists dealt with and reached similar conclusions in case decisions. Comparative studies of rabbinic and Roman law often find it difficult to explain the existence of similarities in legal issues and solutions. Were Palestinian rabbis influenced by Roman law in their discussions of halakhic issues? Bernard Jackson distinguishes between influence relating to form (e.g., literary form, form of argumentation, classificatory subdivisions) and influence relating to content (e.g., specific rules, legal principles, or legal institutions).1 But what does influence mean and at what stage in the transmission and editing process could it have occurred? According to Jackson, “[a]ny influence must be scholastic, the result of one author’s having read the work of another”.2 Is the term “influence,” which has traditionally been associated with the positivistic claim of direct literary dependence, appropriate for knowledge that is based on rumours, hearsay, third-party reports, and observation of real-life situations?3 If one reckons with a predominantly oral transmission throughout the tannaitic and amoraic periods, Jackson’s definition would probably be applicable to the final editorial stages of rabbinic documents only. Should we assume that the editors of the Mishnah were familiar with written versions of Roman jurists’ law? Would the editors of the Talmud Yerushalmi, who reformulated individual traditions and discussions and dictated them to scribes, have read (Greek translations of?) Roman legal collections that circulated in the Near East in early Byzantine times and were later integrated into Justinian’s Corpus Juris Civilis?

2Jackson uses the term “scholastic” in a rather narrow way by limiting it to procedures relating to written texts. Scholars nowadays see scholasticism as a much broader multifaceted phenomenon of knowledge creation and transmission that encompassed oral stages as well. Louis Roy defines scholasticism as a “comparative” endeavour “in the sense that, far from drawing solely from its own inner resources, it discussed and appropriated a huge amount of foreign ideas”.4 Similarly, Cabezón suggests viewing scholasticism as an “open and malleable” category which includes phenomena that traditional approaches have failed to examine.5 He suggests that scholasticism be deployed as an analytical category among scholarly heuristic tools,6 applicable “as an interpretive tool to a variety of cultural settings”.7

3The narrow and controversial use of the “influence” category has led some scholars to talk about a much less specific “impact” of Roman on Jewish law instead. Whereas Reuven Yaron, in his study of Gifts in Contemplation of Death in Jewish and Roman Law, rejects any assumption of a Roman influence on rabbinic inheritance law, he reckons with an impact of Hellenistic law.8 Jonathan S. Milgram argues that not only Roman law but also Near Eastern legal traditions, together with social and economic conditions, “possibly have an impact on the production of law by the tannaim”.9 Rather than pointing to the influence of specific laws, rabbinic legal thinking is viewed in a much broader, inclusive context here. The use of the term “production” includes oral transmission stages. Older claims for direct dependence are replaced by the mere possibility of direct or indirect connections. As a precedent for his approach, Milgram refers to Urbach, who advocated studying ancient Near Eastern inheritance customs alongside each other and taking shifting political and socio-economic conditions into account.10

4One may wonder, however, whether the term “impact,” which is more neutral than the assumption of direct (textual) contact, may be too imprecise and open to be useful. In a context such as Roman Palestine, in which various (Hellenistic, Roman, Jewish, Near Eastern) legal traditions coexisted and were probably used alongside each other, how can the impact of one tradition on another be ascertained, especially if one assumes that it happened at an oral stage?11 Is the assumption of mere probability sufficient and useful? A scholar who posits impact would have to show that his or her assumption is more persuasive than the alternative scenario of independent yet similar problem-solving mechanisms and solutions among social groups that lived close to each other. As individual adjudicators dealing with similar situations, rabbis and Roman jurists may sometimes have arrived at similar decisions and rulings that were analogous but not based on impact or influence.

5Concerning some legal issues, scholars have even reckoned with Roman jurists’ knowledge of rabbinic law. For example, Felgenträger assumed that Roman emperors knew rabbinic rules concerning stolen goods that first appear in the Mishnah and reacted to Jewish merchants’ reliance on these rules by providing alternative regulations.12 Although the Roman law he refers to mentions negotiatores (C.Iust. 6, 2, 2), these merchants are not identified as Jewish. Not only rabbinic but also Roman jurists would have encountered arguments by merchants who refused to return goods that their owners identified as stolen without being reimbursed for the price they had paid for them. The mishnah that allegedly underlies the Roman law does not specify merchants and limits the ability to retrieve goods to situations were burglaries had been reported locally (m. Bava Qamma 10:3).13 Felgenträger does not consider it necessary to explain how early third-century Jewish merchants in Rome could have known specific rabbinic rules of the Mishnah. He seems to assume that mishnaic rules were well known by all Jews throughout the Roman empire, who allegedly applied them to their civil law cases irrespective of Roman law. Although a few individual rabbis may have travelled to Rome and communicated with members of the local Jewish community, the knowledge of rabbinic law among Roman Jews would have been scarce and sporadic at best.14

6Michael Satlow has already criticised the binary mode in which Jewish and Graeco-Roman cultures have been viewed by scholars in the past.15 Rabbinic law is juxtaposed to Roman law without properly acknowledging that Jews in Roman Palestine lived in an environment that was very Romanised, especially in the third and fourth centuries, when Jews would have encountered Roman culture – including Roman legal practice – for three centuries or more already. In such a context it may be difficult if not impossible to extrapolate Jewish or rabbinic legal ideas from those that floated around in their environment or to even determine where a certain rule or idea originated. Hayim Lapin has similarly argued for an integration of rabbis into their Roman environment.16 Such an integrated approach can be applied to rabbinic legal thinking as well as to other aspects of rabbinic culture (e.g., moral reasoning, self-fashioning, educational practices). Even if Roman jurists may not have considered rabbis their equals, rabbinic sources suggest that rabbis presented themselves in the image of legal arbitrators.17 If this image is based on reality, rabbis’ and Roman jurists’ roles may have partly overlapped, a phenomenon that could explain some of the similarities in the forms of transmission (case stories, questions and answers, disputes), in the advice given to the concerned parties, and in the rules that are preserved in the legal collections that came down to us.

The Graeco-Roman context of rabbinic legal discourse

7When the rabbinic movement emerged after 70 CE, Palestine had already been part of the Roman empire for approximately a hundred and forty years. From Herodian times onwards, steps were taken towards adapting the infrastructure, buildings, and institutions of Palestine to Roman models.18 By the third century, that is, at the time when the Mishnah was edited and amoraic legal discourse took place, Palestine was thoroughly Romanised with regard to its political administration, road network, and urban planning. Cities such as Caesarea and Bet She’an looked like small versions of Roman cities. Sepphoris and Tiberias, the central cities of Galilee, had Roman villas, theatres, and bathhouses. Palestine would have been one of a number of Roman provinces where Romanisation met little resistance after the initial rebellions were quelled.19 Rabbis lived in Romanised cities and adapted themselves to this environment. One may even argue that they profited from Romanisation and its consequences. This development allowed them to present themselves as a local intellectual elite whose functions resembled those of Roman jurists in the adjudication of (minor) civil law cases.

8While we lack firm evidence about the legal situation in Palestine in the first four centuries CE, it is likely that various forms of arbitration existed side by side. While Roman law would have been applied in major criminal law cases, disputes concerning minor property, damages, and family law would have been settled by individual adjudicators of a variety of backgrounds. These adjudicators would have had the reputation of being knowledgeable of specific legal traditions or a combination of such traditions, whether Jewish, Hellenistic, or Roman.

9All cases concerning Roman citizens would have been dealt with by Roman courts. Harries refers to Roman provincial governors’ courts.20 One may assume, though, that such courts would not have bothered to deal with minor issues that could be dealt with by informal adjudicators. Therefore, it is likely that individual experts in Roman law and small informal courts existed in the province of Syria-Palestine alongside the more formal and official Roman legal system.21 Roman adjudication would have taken place in cities with considerable Roman populations, such as Tyre and Caesarea. We may assume that after Caracalla’s edict of 212 CE, when freeborn provincials were able to become Roman citizens, the need for jurisdiction based on Roman law increased. Like the jurist Ulpian, who was active in Tyre in the early third century CE, other experts in Roman law are likely to have practiced jurisdiction in the eastern parts of the Roman empire and offered their services to those who approached them.22

10On the one hand, the language of official law-making was Latin, “even in areas of the Greek East, where it was unlikely to be understood by the majority of the population”.23 On the other hand, we have evidence that Roman law was also used and applied in Greek-speaking contexts. Fergus Millar refers to “the earliest work of Roman law written in Greek of which any substantial extracts survive, Herennius Modestinus’ ‘Exemption from tutela and cura’, written perhaps in the 220s”.24 With regard to documentary evidence, Hannah Cotton has argued that some of the Greek papyrus documents from the Judaean Desert follow Roman legal conventions. She writes: “Certain elements present in the Greek documents imply that they were intended for a Roman court of law”.25 She notes, though, that “all this implies, of course, that noncitizens had recourse to Roman law and courts of law long before 212, and that this does not seem to have required the grant of a special privilege”.26 In all likelihood, the Roman administration would have welcomed provincials’ embrace of and self-subjection to Roman law. What is doubtful is the identification of direct Roman legal influence in the papyrus documents.27 In a similar vein, New Testament scholars have argued that there are traces of Roman law in the Greek New Testament.28 This has especially been claimed for the Pauline letters. Since Paul was a Greek-speaking Roman citizen from Tarsus, his familiarity with some aspects of Roman law would have been plausible. Nevertheless, it remains impossible to ascertain, for example, whether and to what extent his claim of God’s authority over his “son” is based on the Roman legal notion of patria potestas.29

11Only hypothetical answers can be reached about the kind of knowledge of Roman law that different types of Jews in Roman Palestine might have had and the possible basis of such knowledge. These are complex and complicated issues whose answers depend on several variables, such as an individual Jew’s language knowledge, level of education, location, and social network. An upper-class Jew with Greek paideia, such as, for example, the patriarch, would have been able to read Greek texts, including Greek versions of Roman law. If R. Yehudah ha-Nasi and perhaps also some later patriarchs were wealthy businessmen involved in overseas trade, they probably needed to know at least some Roman legal regulations concerning sea trade and the import and export of goods. A story in y. Avodah Zarah 2:10, 42a mentions “a ship of the household of Rabbi, in which were more than three-hundred jugs [of pickled fish]”. The assumption is that they were prepared by gentiles and imported from overseas.30 The patriarch was also believed to have had connections to high-standing Romans. Some other rabbis may also have had business relations with Romans, which required them to be knowledgeable of some aspects of Roman law. It should be stressed, however, that such knowledge was not necessarily based on the reading of legal texts. It would have been a practical knowledge of business regulations and document forms that was based on oral advice. Wealthy Jewish businessmen would have had well educated Greek-speaking slaves available who functioned as advisers, intermediaries, and secretaries.31 We would therefore expect to find most similarities between rabbinic and Roman law in areas of international trade and business mediation.

12Rabbis who did not belong to the upper strata of society but lived in cities with a sizable Roman population such as Caesarea would not have required knowledge of international trade law to the same degree that their wealthier fellow-Jews did. Nevertheless, they may have been familiar with some aspects of Roman law from observation, hearsay, and own experience. Depending on their understanding of Greek and contacts with Romans, they may have overheard jurists giving advice to people in the marketplace. The probably few rabbis who owned slaves are likely to have known Roman slave sale and manumission rules. Rabbis who advised people in civil and family law matters knew that they had the option to bring their cases before Roman jurists and courts. They probably knew about document formats, legal clauses and personal status categories used by Roman courts. Perhaps they adjusted rabbinic to Roman law to prevent their fellow-Jews from deserting them too often.

13This leads us to the question in what areas of daily life an ordinary Jewish citizen of Roman Palestine would have been expected to know Roman law. The first and main area would have been political decrees concerning (Jewish) inhabitants of the province. Such decrees would have been posted in Greek or bilingually (in Latin and Greek) in public spaces. We may assume that even those who could not read Greek themselves would have been familiar with their content. When they were set up, they would have been read out aloud and discussed in the marketplace. For the time before 70 CE, Josephus refers to such public decrees in connection with Caesar and Hyrcanus. In Antiquities he states that the decrees of the Romans “are laid up in the public places of the cities, and are extant still in the capitol, and engraved upon pillars of brass” (A.J. 14, 188).32 The publication of decrees in the form of more or less monumental public inscriptions allowed the Roman authorities to act as if they were public knowledge and to punish those who transgressed them. They also served as visible reminders of Rome’s ultimate authority over local affairs and the local population.

14Some knowledge of Roman law would have been required by those who were interested in making their documents enforceable in Roman courts, as Hannah Cotton has already pointed out in connection with some of the Judaean Desert papyri. Areas in which Palestinian Jews might have considered such enforcement would have been land lease and sales contracts and perhaps also gift and inheritance clauses, that is, matters that concerned valuable property. By contrast, matters of private law that concerned the Jewish family may have been less impacted by Roman law. According to rabbinic literature, rabbis mainly dealt with minor property issues, private and religious law.33 As Neusner has already pointed out, the few and occasional references to rabbis dealing with matters of landed property represent their “most striking kind of power” and can be considered “the single most important testimony to the character of the authority of the rabbi as judge”.34

15We may assume that those who studied at Roman law schools in the Near East in Late Antiquity were expected to be able to read legal texts in Latin, although legal discussions were probably conducted in Greek.35 Although we lack direct evidence, it is likely that some Jews attended these schools. As Hans Julius Wolff has already pointed out in the 1950s, “law schools in the provinces […] trained young men for positions in the civil service and for the legal profession”.36 Various types of legal experts would have been needed in Roman Palestine and not all of them were rabbis. In all likelihood there would have been courts, especially in cities such as Caesarea and Bet She’an, that were based on Roman law and some of the jurists, judges, witnesses, and scribes would have been of a Jewish ethnic background.

16Especially Jews who became Roman citizens before or after Caracalla’s reform would have been interested in Roman law and preferred to be judged on its basis.37 Schiller writes: “With the gradual penetration of Roman legal doctrines the local law began to be replaced, until finally, in the post-classical period, there evolved a single, new Roman legal system which, incidentally, included Hellenistic legal institutions, formerly institutions of the local law of the eastern provinces”.38 During Late Antiquity, however, the replacement was not complete and local ethnic and empire-wide Roman identities and legal systems existed side by side: “access by the new citizen to the legal institutions of Rome is certain, but it is equally true that provincial forms did not disappear immediately after 212 A.D.”.39 Tal Ilan has already referred to the curious case of Julia Crispina, mentioned in the Babatha papyri, who was appointed as a guardian for orphans, although Jewish law prevented women from serving in this capacity. Ilan assumes that “she was of eastern origin (Jewish, from the context), but Hellenized, and had acquired Roman citizenship, although her role as a guardian of orphans is indeed an odd application of Roman law in the East, revealing mutual influences between the Roman and Jewish systems of law”.40

The relationship between rabbinic and Roman law

17It is clear, then, that we should reckon with various degrees of knowledge and adaptation of Roman law among Jews in Roman Palestine. For the relationship between rabbinic and Roman law a full range of possibilities exists. Rabbis may have adapted and integrated Roman legal rules. They may have been aware of similar phenomena without using the same terminology. They could use legal loanwords but use them in slightly different ways. They could set up rules that resembled some aspects of Roman law but also showed significant variation. Similarities may have been based on similar social and economic phenomena. Rabbinic rules could differ significantly from Roman legislation.

18As already pointed out above, we can expect the largest similarities in areas of international trade and the shipping business, that is, in areas where contacts between Jews and Romans were greatest and where mutual interests of smooth business dealings were involved. As far as shared social institutions such as slavery are concerned, we may assume that rules concerning slave trade were similar. Rules concerning the private relations between slaves and their masters may have differed, if biblical morality differed from Roman practices. On the other hand, rabbis may have been aware of and adjusted their guidance to Hellenistic ethical principles. Even in family law and the law of personal status adjustments to Roman law are possible.41

Shipping law: the case of jettison

19Ship owners would have belonged to the wealthiest sections of ancient Jewish society. Especially those who owned ships that were used in import and export business would have had continuous business relations with both Jews and non-Jews, among them Romans. Overseas shipping and import and export businesses would have had to adhere to international shipping law. When rabbis advised their fellow-Jews on legal matters relating to sea trade, they probably adhered to, imitated, and adapted Roman law.

20Those involved in the shipping business had a range of roles, responsibilities, and liabilities. Besides the ship owner, there would have been the master of a vessel in charge of the entire operation, and the sailors, who set the ship in motion. Book 14 of Justinian’s Digest transmits earlier Roman jurists’ laws concerning the legal responsibilities associated with these functions. Since ships could be hired out entirely or space on ships was leased for the transport of goods, questions of liability arose if goods were damaged or lost. If a storm came up, goods might be thrown overboard to lighten the ship’s load and save lives. Book 14 of Justinian’s Digest states:

It is provided by the Rhodian Law that where merchandise is thrown overboard for the purpose of lightening a ship, what has been lost for the benefit of all must be made up by the contribution of all (Dig. 14, 2, 1: Paulus, Sentences, Book II).42

21The loss of some owners’ goods benefited all, that is, all passengers whose lives were saved and all those whose merchandise was on board the ship. Therefore, according to this general rule, “all” must contribute to the compensation for the lost property. The following part of the Digest indicates, however, that matters were more complicated. The rule does not specify who is meant by “all” those who benefit. There may be passengers on board the ship who have no luggage or luggage that does not burden the ship:

Where several merchants collect different kinds of goods in the same ship, and, in addition, many passengers, both slaves and freemen, are travelling in it, and a great storm arises, and part of the cargo is necessarily thrown overboard, the question was with respect to the following point, namely, whether it was necessary for all to make good what was thrown overboard; and whether this must also be done by those who had brought on board such merchandise as did not burden the ship; for instance, precious stones and pearls; and if this was the case, what portion of the same must be contributed; and whether it was necessary for anything to be paid for freemen… It was held that all those whose interest it was that the goods should be thrown overboard must contribute, because they owed that contribution on account of the preservation of their property, and therefore even the owner of the ship was liable for his share. The amount of the loss must be distributed in proportion to the value of the property; no appraisement can be made of the persons of freemen; and the owners of the lost property have a right to proceed on the contract for transportation against the sailor, that is, the master (Dig. 14, 2, 2: Paulus, On the Edict, Book XXXIV).

22While all those who benefited from the loss of the cargo are held responsible for the compensation, the text distinguishes between the cargo and the lives of the freemen aboard the ship. It seems that only those whose property was preserved by throwing goods overboard are made liable to pay. Those who benefited most, that is, who had high-value property on board, would be required to pay more than those who had little and low-value goods. The saving of freeborn persons’ lives does not count in the equation though. Passengers who have no luggage or goods do not have to contribute on the basis that their lives were saved. The saving of freemen’s lives was an unalienable right (whereas slaves would be counted as property).

23A text in the Tosefta is reminiscent of the Roman jurists’ argumentation but lacks the Roman law’s complexity:

A ship which was coming along in the sea and a storm came up against it, and they unloaded from the cargo, they reckon [the damage to be paid] in accordance with the load, and they do not reckon in accordance with the lives. And they do not differ from the custom of the ship (t. Bava Metzi‘a 7:14).

24This text reads like a summary of the Roman jurists’ deliberations on the issue of jettison. The rabbinic rule is much shorter than the Roman legal text. Its conciseness has, in fact, puzzled scholars and made the text difficult to understand without the background of the longer discussion in the Digest.43 The Tosefta does not state who is supposed to pay. It merely distinguishes between the cargo and the passengers and maintains that the damage payment is reckoned on the basis of the (value of) the shipped goods, not on the basis of saved lives. Yet the gist of the rule is the same as that of the Roman jurist Paulus. We may assume that in both cases the owners of the jettison would bring their case before the master of the ship, who would calculate the amounts to be paid by all those whose property was saved, including the ship owner.

25While the rabbis of the Tosefta can be considered to have known the Roman regulations – in fact, the so-called “custom of the ship” may refer to Roman shipping law – there is no evidence that they had read the detailed deliberations of the Roman jurist Paulus. It is more likely that they were aware of the regulations through hearsay and practice. Especially rabbis who were ship owners themselves (e.g., R. Yehudah ha-Nasi) or leased space on ships to export their goods, would have been familiar with the practice of jettison and the shared liability of all beneficiaries.44

26The version of the rule that appears in the Talmud Yerushalmi (y. Bava Qamma 6:4, 5c) adds the concept of “value” (ממון) to the discussion. The payment that each of the businessmen whose goods were saved is supposed to contribute to the compensation for the loss of the jettisoned goods is calculated in accordance with the value of the merchandise that was saved. This added detail accords well with the Roman legal statement that “the amount of the loss must be distributed in proportion to the value of the property”. The rabbis of the Yerushalmi, who reformulated and discussed the jettison ruling, may have been more familiar with the details of the Roman legislation than the rabbis of the Tosefta were.

Slave law: slaves as business intermediaries

27Slavery was a well-established institution in both Jewish and Roman society in the first five centuries CE.45 We may assume that many aspects of slavery were similar in both societies. One of these aspects seems to have been the use of slaves as business intermediaries.46 In both rabbinic and Roman law, a slave’s use of his master’s property for business purposes is likened to a son’s agency on behalf of his father. While they were under the authority of their master or father, neither slaves nor sons in potestate could own property themselves. Therefore, they were not regarded as the owners of the property they were meant to use and increase through their business dealings. The Latin term used in Roman law for such allocations of property is peculium. It could consist of “[a] sum of money, a commercial or industrial business, or a small separate property granted by a father to his son or by a master to his slave, for the son’s (or slave’s) use, free disposal, and fructification through commercial or other transactions”.47 The peculium allowed slaves and sons “to develop independent business activity in the interest of the family group and its head”.48 Although the Roman legal term never appears in rabbinic literature, rabbis were aware of a similar practice in Jewish society. According to the Tosefta,

The son who does business with what belongs to his father, and likewise the slave who does business with what belongs to his master, behold, they [the proceeds] belong to the father; behold, they belong to the master (t. Bava Qamma 11:2).

28Roman jurists’ law developed complex legal regulations concerning business transactions involving the peculium. The peculium enabled slaves to function “as managers of quasi-independent ‘firms’ although still within the ambit of the familia”.49 In business with third parties the question of responsibility in case of loss or fraudulent behavior arose. Could the slave manager, who was not a legal party, be held responsible or did the sole responsibility pertain to the master and owner of the property he did business with? In fact, Roman jurists established ways to limit the liability of the owner: “In many respects, it looks like a distant prototype of a modern corporation in which a stockholder (the pater familias) owns a separately incorporated firm (the peculium) but, in return for limited liability, leaves the direction of the firm in the hands of the manager (the child or slave)”.50

29The arrangement was beneficial to householders because they could, to a certain extent, divert liability to their subordinates. According to a law in Justinian’s Institutes,

The praetor provided actions on the peculium against a father or an owner [of a slave] because, although by [civil] law itself they are not liable on the contract of sons or slaves, nonetheless it is fair that they be condemned up to the value of the peculium, which is like the property [patrimonium] of sons and daughters or of slaves (Justinian, Institutes 4, 6, 10).51

30According to this law, slave masters had limited liability on transactions involving the peculium, up to the value of the peculium itself. If slaves had increased the value in their business transactions, they could lose that added value, if the owner decided to sell the property or had to pay damages to a third party, e.g., in case of debts. Earlier jurists’ law seems to have limited the master’s and father’s liability even more (“by [civil] law itself they are not liable on the contract of sons or slaves”), enabling them to carry out risky business dealings through slaves as intermediaries. Jurists “richly developed the legal institution of the peculium” and transmitted cases as examples of their views.52

31As in the case of jettison, rabbis seem to have been aware of the Roman legislation and imitated its gist without including – and probably without knowing – all of its details. Frier and McGinn have already pointed out that “such funds [as the peculia] are characteristic of virtually all known slaveholding systems”.53 They were necessary to enable masters to use their slaves as business managers and entrepreneurs. The tannaitic principle that “the hand of a slave is like the hand of his master” (attributed to R. Meir in y. Pe’ah 4:6, 18b and y. Qiddushin 1:3, 60a) allowed masters to acquire or sell property through their slaves. Similarly, the Roman jurist Gaius maintained: “Whatever […] slaves in our ownership receive by mancipatio or obtain by delivery, and whatever rights they stipulate for or acquire by any other title, they acquire for us” (Gaius, Inst. 2, 87). Gaius’s wording is more complex than the tannaitic ruling but the meaning seems to be similar. In both contexts the focus is on acquisition and added value. In y. Pe’ah 4:6, 18b a mishnah (m. Bava Metzi‘a 1:5) is quoted, according to which finds of slaves of non-Jewish origin belong to their masters.54 On the other hand, in rabbinic as in Roman law, “[t]he owner of a slave is not liable for injuries and/or damages caused by his slave so as to prevent a situation in which a slave who is angry with his master would intentionally cause injury to a third person and his master would have to pay for it”.55

Family law: wives’ property ownership

32If family matters concerned internal affairs only, without repercussions in the wider provincial society, they may have been more likely to diverge from Roman legal customs. This seems to be the case, for example, regarding rabbis’ attitudes toward married women’s property ownership. We may assume that the question whether Jewish wives could hold and manage their own property during marriage was of little concern to Romans. Husbands in favour of restricting their wives’ property dealings could simply prevent them from entering business deals or declare their wives’ deals illegal. We know that rabbinic opinions on this issue were not necessarily shared by all Jews. As the Egyptian and Judaean Desert papyri have shown, some Jewish families found ways to enable married women to own and administer property independently.56

33Rabbis must have been aware of the Roman distinction between in manu (= cum manu) and sine manu marriages. As Jane E. Gardner has already pointed out, “A wife in manu had no property of her own, and anything given or bequeathed to her was absorbed in her husband’s property”.57 This type of marriage gave way to sine manu marriages in imperial times, however: “In the closing years of the Republic and during the Principate, the marriage sine manu was the customary form of marriage…”58 In sine manu marriages women were able to retain control over the property they brought into the family.

34When insisting on the principle that a husband has control over his wife’s property, rabbis may have been aware of changes towards married women’s greater independence in the surrounding Roman society, changes that some of their fellow Jews had adopted already. The mishnaic rule that a woman’s property brought into the marriage (and mentioned in her ketubbah) or acquired during the marriage (e.g., through a gift by her father) is under the usufruct of her husband (m. Ketubbot 8:1-2) may have been a rabbinic attempt to safeguard husbands’ free use of the family property despite developments in the larger Graeco-Roman and Jewish society.59 Whether Jewish families adhered to the rabbinic rule or adopted the more liberal Roman form of marriage would have depended on personal preferences and agreements between the woman’s father and her (prospective) husband, that is, it was a private matter dealt with within the Jewish family itself.

Conclusions

35Did Palestinian rabbis know Roman law? We may assume that they would have been more or less familiar with the Roman rules pertaining to their worldly professions. Those involved in the overseas import and export business would have been familiar with their rights and duties when leasing space on ships for their goods. Wealthy ship owners such as R. Yehudah ha-Nasi would have known their responsibilities when making their ships available for international trade. Rabbis who used slaves as business intermediaries would have been aware of both the legal advantages and problems pertaining to such dealings. Similarities between rabbinic and Roman law can be expected to be greatest in areas of joint Jewish/non-Jewish business relations. Rabbis who were involved in such large-scale businesses probably lived in cities, that is, in environments where they would hear about and observe Roman legal practices. Rabbinic texts seem to summarize and imitate the gist of Roman legislation without indicating knowledge of its complexity. This suggests that some rabbis were familiar with some Roman rules through hearsay, observation, and daily life practice. There is no evidence that the rabbis who formulated the texts had read collections of Roman jurists’ law or attended Roman law schools.

36Obviously, rabbinic knowledge of Roman law does not necessarily lead to similarities and imitation. In some areas of family and private law, rabbis may have been aware of Roman laws and practices but felt less inclined to adopt and integrate them into their own rulings if they did not agree with their own values. An example of such a discrepancy seems to be rabbis’ insistence on husbands maintaining control over their wives’ property for the duration of the marriage. They were probably familiar with the Roman move toward sine manu marriage and the phenomenon that some of their Jewish contemporaries found ways to allow married women to hold and use property independently of their husbands. Yet they adopted a stance that resembled the earlier Roman cum manu marriage, to maintain male control over the family property. Since this was a private matter that concerned Jewish families only, there was no pressure and inclination to adjust rabbinic rules to the Roman legislation. In fact, rabbis may have invented the specifically Jewish institution of the ketubbah to prevent Jewish women from being put at a disadvantage in comparison to Graeco-Roman women. Although they could not use their property during marriage, whatever they brought into the marriage would be safeguarded and returned to them when the marriage ended.60

37In sum, we are not dealing with the imposition of one culture on another but with a provincial intellectual elite that was more or less aware of the legal advice given and the practices carried out in its vicinity by both Jews and non-Jews. Rabbis are unlikely to have studied Roman law or read Roman legal texts. Yet they seem to have been aware of the rules followed by some of their contemporaries in areas of mutual interest. They could adopt, imitate, reformulate, summarize and apply them or formulate alternative regulations.