II Jurisdiction, law and power

Any discussion of ‘law’ will always raise questions of authority, power and official recognition. When it comes to law in the Roman provinces, where we have evidence for the pre-existing legal traditions of multiple different peoples in the empire, a fundamental problem is how we understand their operation in the context of that imperial setting. What was the relationship between provincial legal traditions and the imperial power, and how did the Roman presence affect local authority structures in the legal realm?

While such questions can be posed of any subaltern legal tradition in the empire, Jewish law is the corpus where we have the most extensive written evidence for any such group living under Rome. The evidence may pose its problems, but it is extremely rich. Many of the key texts will be introduced in more detail later, but the present section will serve to introduce readers to the historical background and context in which we are operating, and thus the core matters of scholarly contention involved. The points of debate differ for Judaea, in which Jews lived as a majority population in the province, and for Jewish diaspora communities, where they were typically minority groups living among other subject communities. In both cases, however, the issues hinge on the nature and level of interaction between the imperial power and their subjects — matters of fundamental interest to historians of the Roman empire.

To begin with Judaea, and how it fits within a context of understanding law in the provinces: a key point of interest over the centuries has been the extent of power granted to Jewish leaders in terms of jurisdiction. This has often been treated in scholarship as a fairly distinct problem from that in other provinces, in part because of a couple of very particular issues. The first is the trial of Jesus. On the periphery of both Classics and Jewish Studies, New Testament scholars have repeatedly tried to understand the statement in John 18:31 that Jews did not have the right to execute him (thus he was handed over to the Romans), and therefore debated whether Jewish authorities had the right to impose the death penalty. The text of an inscription that was erected in the Jerusalem Temple, preserved not just in Josephus but also in two epigraphic copies, often enters into such discussions: the text warns foreigners that they are responsible for their own death if they enter the Temple precincts.Footnote ¹² As such, it has sometimes been brought into these same thematic discussions about whether Jews had institutionalised, recognised powers of capital punishment in Judaea. The second issue, more on the Jewish Studies side, concerns the nature and power of the Sanhedrin — variously understood as an advisory body or a court, and itself a term derived from Greek. Extensive discussion is devoted to the Sanhedrin(s) in later rabbinic sources, with a thoroughly regimented system laid out: an entire tractate in the Mishnah, the earliest such work (to be introduced fully in Section III), is dedicated to it. While most scholars now agree that this was ‘an idealized creation of the rabbis’,Footnote ¹³ such intensive rabbinic attention was often part of the reason why the extent of jurisdiction given to Jewish leaders and institutions was a topic of such great interest. Questions about jurisdiction and autonomy have thus remained disputed, and have also perhaps remained more separate from discussions of similar issues in the empire as a whole than has typically been the case for other provinces.

Connected to these questions, the level of Romanisation of Judaea and its inhabitants remains debated. This has especial pertinence for understanding how the region’s inhabitants conducted their legal business. The recently published papyrus, P. Cotton, dated to 129–132 c.e., may now provide the first documentary evidence of a case being heard before a Roman official in the province: a lengthy papyrus of over 100 lines (though the last part is extremely fragmentary), it records a Roman judicial hearing about the forgery of documents concerned with the sale and manumission of slaves. The fragmentary state of the text, however, means that the identity and rank of the official who presided over the case are unknown, and it also remains unclear as to whether the trial was in Judaea or the neighbouring province of Arabia.Footnote ¹⁴ Other than P. Cotton, while we have evidence for the governor’s travels in which he would probably have held assizes, and thus fulfilled the basic obligation of Roman government to provide justice to its subjects, we have little indication that provincials used Roman judicial institutions to any significant degree. For example, the earliest Greek legal documentation — normally our best marker of interaction with Roman legal fora in the east — belongs to the early second century, over 100 years after the imposition of direct Roman rule in Judaea.Footnote ¹⁵ This could indicate a lack of interest in what was, for the most part, an offer of justice from Rome, not a compulsion to use it.Footnote ¹⁶ The theme of law and its operation in Judaea thus has a particular importance for those interested in the interaction of provincials with Roman legal institutions and law, but also pertains to broader questions of subaltern autonomy and of Romanisation in the empire. The region needs to be compared more systematically and regularly with other provinces in order to assess properly the question of exceptionalism.

Thus far, we are in the realm of comparanda with other provinces and provincial populations. But the Jewish people presented a more unusual issue from a Roman perspective because their communities went beyond provincial boundaries, and Jewish groups outside their homeland asked for recognition of their ‘ancestral customs’ (πάτριοι νόμοι) from their imperial overlords. The diaspora can thus be said to pose similar questions of exceptionalism but in a different form. Scholarly debates focus less on the issues of Romanisation and jurisdiction than the typicality of these Jewish groups and the legal grants made to them compared with other peoples in the empire.Footnote ¹⁷ This requires some detailed explication. We have evidence for a large number of Jewish groups operating in the empire and for legal grants of privileges by the Roman government, including being able to gather, collect money and live according to their ‘ancestral customs/laws’.Footnote ¹⁸ These grants have proved of great interest to those working on associations in antiquity, but with very different conclusions drawn. Under one interpretation, the evidence is important simply for telling us that such groups existed and giving some clue about their function: Jews organised in groups, like many others, and operated in a kind of empire-wide Graeco-Roman associational culture. This position is often taken on the more religious-studies side, often by those interested in contextualising Christ-worship groups in a wider associational context, Jewish associations included.Footnote ¹⁹ All these groups are then representative of an ‘associational culture’ and so this can speak to the assimilation of Jews within the wider world. The Roman legal aspect of the evidence of the grant of privileges to Jews, in this narrative, matters little. Under an alternative interpretation, the Roman legal framework is taken as granting a clear, distinctive set of privileges to Jewish groups that gives them a special legal status on a model of legal associations, i.e. collegia licita; this was then gradually universalised in a manner that is fundamentally different from most other groups in the Roman world.Footnote ²⁰ This also is clear evidence of a pattern of Roman law-making that moves from the particular — grants to individual groups at the request of those individual groups — to the universal through repetition. One further aspect is that the grants of privileges were often prompted by conflicts at a local level. Jews then had to ‘leap-frog’ local authorities,Footnote ²¹ usually those of Greek cities, to ask the Roman imperial power for protection. The latter gave protection, but in that process undermined the local authority. Thus, the grants themselves could exacerbate a situation of tension, leading to even greater social marginalisation of Jewish groups. Law and legal status then become fundamental to understanding daily life, and the manner in which the Romans administered legal grants is seen as intrinsic for understanding questions of assimilation and marginalisation.

Both for Judaea and the diaspora, the heart of the question concerning law, power and jurisdiction therefore lies in the interaction between the Roman imperial power and those it ruled. Questions about the extent to which Roman law and Roman jurisdiction were imposed are raised on the one hand; those of pressure and instrumentalisation of imperial instruments and frameworks by Jewish subjects are essential on the other. Taking both seriously leads us to view law, legal status and jurisdiction as part of a dynamic process of interaction between rulers and ruled, subject to negotiation and change. Thus, in 398 c.e., when Arcadius and Honorius made the decisions of Jewish tribunals enforceable by Roman magistrates, so long as they were entered into voluntarily and concerned civil matters, this was an end point of official recognition in a long story of that negotiation and interaction.Footnote ²² Underpinning that story are questions of authority, power and negotiation, all of which pivot on the role of law in society for the agents involved.

III Rules, regulations and empire

Moving away from jurisdiction and power, perhaps the most common conventional concept of ‘law’ is of a body of rules and regulations,Footnote ²³ an understanding that manifests in a desire to discover the letter of the law in whichever legal tradition is under discussion. This is often an end in and of itself when dealing with ancient legal traditions because the evidence is fragmentary and piecemeal, and the tradition of preservation and recording complex. That is the case on both the Jewish and the Roman sides: for the latter, Roman law was ‘codified’, if that is the appropriate term,Footnote ²⁴ late in Justinian’s sixth-century project, even if there had been plenty of collections of constitutions and digesta before;Footnote ²⁵ further evidence of course survives through the thousands of inscriptions and documentary papyri that allow us to piece together individual rules and decisions in cases decided by Roman magistrates. On the Jewish side, the situation is in some ways not dissimilar both in terms of source material and its implications for study: we have the Hebrew Bible on one end of the chronological spectrum, and the Mishnah, Tosefta and Talmuds on the other. In many cases, even the nature of these texts — as law code, repository of traditions, study book — is hotly debated.Footnote ²⁶

At the risk of oversimplification, some introduction to these texts is necessary. Rabbinic literature is traditionally divided into ‘halakhic’ (legal) and ‘aggadic’ (strictly ‘narrative’, but usually designating non-legal) works: The division is not clear cut, but it will be most relevant to focus on the former category. The Mishnah is the earliest collection of rabbinic law. It is a compilation of the (oral) traditions of the early rabbis, and the ‘redactor’ (compiler) was Rabbi Judah ha-Nasi in the early third century c.e.; it is written mostly in Hebrew with some Aramaic. The Tosefta has a similar character, and may be a supplement to the Mishnah; it comes from roughly the same period and is in the same language(s). The Jerusalem Talmud (the Yerushalmi) was redacted in the late fourth/early fifth century, and is in Aramaic (with some Hebrew); and the Bablyonian Talmud (the Bavli) was probably redacted in the sixth/seventh century, also in Aramaic with Hebrew. Both Talmuds are commentaries, in a broad sense, on the Mishnah. Before the rabbis but post-bible, we are dealing with more piecemeal texts that shed light on law but are not authoritative in the same way: some of the Dead Sea Scrolls (third century b.c.e. to first century c.e.) offer ‘sectarian’ rules for the distinctive Jewish community that they attest; authors of the period discuss and lay out biblical law for a contemporary audience; and various documentary sources give windows into legal practice.Footnote ²⁷ Some have argued that the very nature and scope of Jewish law changed and expanded in this in-between era.Footnote ²⁸ This period in both the Jewish and Roman tradition is challenging because of this more piecemeal evidence, but is also where there has been much rich study of ‘on the ground’ workings, opportunities to consider variation and unity in both practice and conception, and the role of orality versus written authority in legal contexts.Footnote ²⁹

The challenges resulting from the nature of the available evidence are also in some ways similar. Both the rabbinic halakhic corpus and Justinian’s Digest pose issues because they are compilations, in the former case also encompassing a transition from oral tradition to written record: one must allow for the agency of the compiler(s), especially when trying to extract and discern evidence for the earlier historical epoch. On the Roman side, the interpolation-hunting quest that was so beloved nearly a century ago has been almost completely abandoned, perhaps more so than is wise: this involved detailed analysis of the juristic corpus to try to identify edits to the original juristic works that were made by the Justinianic compilers.Footnote ³⁰ On the rabbinic side, the key question concerns historicity: to what extent do the sayings attributed to earlier rabbis represent that (historical) time and to what extent have they been reshaped in the later era of the redactor(s)? The problems are not so dissimilar at root and concern how one handles compilations of earlier traditions: whether at one end of the spectrum we must treat the (late) text as text and cannot go beyond it, or at the other end we take the straightforward attributions as read, and use them for understanding the referenced person’s time. Given both Roman and Jewish legal texts have also been used to write social and cultural history, what is at stake in this question is not just reconstructing law and legal thought, or even understanding the nature of the text, but has broad ramifications for the extent to which we can use these sources and for what purpose.

Other issues are also common to both disciplines, though they perhaps manifest in different ways: language, geography, variation and how all of these factors influenced the very nature of the rules for which we are searching. Neither body of law applied to a uniform group. Rome ruled an empire of vast geographic expanse, offering justice to its free inhabitants regardless of status, and it is abundantly clear that Roman officials also enforced non-Roman legal regulations in courts across the empire.Footnote ³¹ How that contact with other peoples and their legal traditions on a daily basis influenced Roman law itself remains a vital topic of discussion. Nor, indeed, was Jewish culture uniform across the far-flung diaspora. We have already mentioned the ‘sectarian’ Dead Sea Scrolls community, and might factor in the various Jewish ‘sects’ (Pharisees, Sadducees, Essenes; some of the differences between which revolve around points of Jewish law) within Judaea itself. The large diaspora community/ies in Egypt, to take one example, were Greek-speaking and used the Septuagint as their sacred text, in contrast to those in Judaea; attitudes to the Second Commandment (Exod. 20:4–5) ban on images were varied across geography and period.Footnote ³² In short, far-flung communities, with variation in language and in cultural and historical setting, led to different interactions in a range of contexts. This in turn created diversity in understandings of rules.

Thus, across both Jewish and Roman studies, the answer to the question ‘What is Roman/Jewish law on X in this period?’ has become much more historically and culturally contingent than might once have been recognised. There is also the possibility that the relationship between the two changed as the concepts and bounds of law on both sides were simultaneously transforming. None of this means that law in the sense of rules/orderings did not exist, or that these were irrelevant. It does mean, however, that the process of determining ‘the rules’ means allowing for different, temporally and geographically contingent, understandings of the very concept of law on the part of historical actors. Fluidity and change in the very nature of the law have thus become a reality that most scholars have to face.

Especially in recent work on rabbinic texts, this question of interaction between ‘legal systems’ and the extent to which this influenced the rabbis has come back in vogue:Footnote ³³ detailed, intricate studies of specific legal rules or formulations within the rabbinic corpus, typically thinking about how they compare with — and might therefore be interacting directly with — Roman law do much to contribute to understanding the rabbis as legal thinkers. Yair Furstenberg’s ERC project, Local Law under Rome, fits within this picture of contextualising the rabbis within their imperial setting, and is in fact one of several recent ERC projects to take topics on Jewish texts, history, culture and law as their focus, all set firmly within their imperial context.Footnote ³⁴ Yet not all roads lead to Rome, and we should perhaps be cautious about a tendency to over-centre the imperial power in some more recent narratives. One persistent question that rabbinicists may need to tackle is where we should place ‘Greek law’ in such studies, given the locations in which the early rabbis operated (e.g. Sepphoris, Tiberias) and the importance of nearby Greek cities, with their own legal traditions, in the area. The volume of Greek loanwords that appear in rabbinic texts should give further pause on this. There may thus be more space for interaction from both sides on what the markers of ‘Romanness’ were in this region, and whether ‘Greekness’ was a part of Romanisation in the legal realm specifically or whether that once again falls into the trap of over-emphasising Rome. But for now we may note in concluding this section that, while the study of law in the Roman empire has recently pursued the tendency to emphasise the importance of non-Romans and non-Roman law in general, a large current of studies of Jewish law have been doing the exact opposite — Rome is resurgent.

IV Law, literature and culture

The above matters are perhaps mostly of interest to historians. But, remaining with the ‘law’ theme, there are also profound intersections between Jewish and Roman studies at the level of texts and literary study. After a slow start, we are seeing the growth of an interest in ‘law and literature’ in the study of classical texts.Footnote ³⁵ This subject has a long history outside classical antiquity, spawning many sub-fields in its development: ‘law in literature’, and ‘law as literature’ among them.Footnote ³⁶ The approaches can vary dependent on the aims for each enquiry: one can read legal texts though a literary frame, analysing their structure, language, and so on to gain a greater appreciation of the working of the text, or indeed of legal texts as a literary genre in and of themselves. Such work often focuses on the juristic sources and can take many different forms: for example, considering whether juristic writing can be counted as literature and what that might tell us,Footnote ³⁷ or thinking about legal writing as a mode of literary and theoretical discourse in and of itself.Footnote ³⁸ Literary considerations such as narrative, rhetoric and representation are brought to bear to understand legal writing anew.

A different strand takes literary texts as the focus. Several approaches are possible. One can read literature — both poetry and prose — in order to find out more about law or legal matters (legal education or legal knowledge, for example); one can use a knowledge of law to re-read literary texts and unlock interpretations that may have been more immediately evident to an ancient audience; one can try to identify particular authors’ attitudes to law.Footnote ³⁹ The majority of recent activity has been on the Latin side and, with a few potential exceptions,Footnote ⁴⁰ most of the analysis of the authors tackled will probably have more light to shed on the topic of ‘law’ in general than ‘law and empire’. It remains to be seen how much can be gained from such approaches to Greek imperial literature, the Greek novel especially, and that in turn would add further fascinating dimensions to understandings of law and empire.Footnote ⁴¹

Those with an interest in Jewish literature in the (Greek and) Roman period have very often been thinking about these issues because of the importance of the Torah in ancient Jewish life. In the Roman era, Philo thought deeply about the Torah within a Greek philosophical framework; Josephus’ second book of the Against Apion is all about Jewish law, skilfully crafted to appeal to a Greek/Roman audience.Footnote ⁴² Even if this is not necessarily foregrounded in every study, there is an assumption that legal knowledge is intrinsic to the way that educated Jews thought about and approached their literature. Maren Niehoff’s current ERC project, ROMANA, perhaps embodies this assumption: in examining how Jewish, Christian and Greek writings interacted with Roman imperial culture, ‘legal’ is one of the three strands of investigation; Katell Berthelot’s earlier ERC project, Judaism and Rome, also took ‘law’ as one of its core themes, and her resulting monograph analysed how texts functioned in the encounter between Rome and the Jews.Footnote ⁴³ The idea which underlines these projects and similar work — that ‘law’ is part of culture, and is intrinsic to understanding a people — is perhaps not quite so widespread among Romanists as it is in Jewish Studies. These projects thus exemplify some of the conceptual gaps between specialists who have mostly focused on Jewish texts and are used to thinking about law as an intrinsic facet of identity, and Classicists and Romanists who do not as a matter of course adopt the same assumption. It may be that this distinction should remain — it can be argued that law has a different place in Jewish culture compared with other groups in the Roman empire — but, differences notwithstanding, such approaches may unlock further new directions for research on the Roman side.

One final point on the idea of legal texts as literary products will bring us back to where we began. The rabbinic corpus has perhaps been the most confined, shut-off realm from the attention of scholars within Classics departments. As mentioned in the introduction, there are good historical reasons for this, linguistic competence chief among them. In a time when language learning seems increasingly under threat in multiple countries it is doubtful that the situation will change. Furthermore, the texts themselves are set in a very differently constructed thought-world from that familiar from classical Greek and Latin works of the era. Thus, it has been rare for those who focus on the history, culture and literature of late antiquity to include these texts as a matter of course as examples of late antique culture. But the justifications for this exclusion are few. The rabbis cited in the Mishnah and Tosefta, for example, lived in Greek cities in a Roman province; chronologically and geographically, there is no reason to exclude these texts.Footnote ⁴⁴ Excellent new editions also make the works much more accessible to outsiders, meaning at least in general terms they can be integrated into broader studies. New Handbooks and Companions to the literatures of the sages, as the rabbis are often termed, also provide exactly what they are meant to: a way in and a conceptual/methodological toolbox for outsiders.Footnote ⁴⁵ And they represent the largest written corpus from a group of imperial subjects in this period: an enormous provincial literature that exists in the shadow of empire. If both the rabbis within the text and the redactors (compilers) of those same texts interacted with and were influenced in subtle ways by Rome and by their surroundings, we can — and specialists do — trace how and to what extent; if they reject and deliberately excluded and ignored that empire, that in itself is fascinating. In an age of the cry of decolonisation of our discipline, the continued marginalisation of such texts is unjustifiable, and not just for those interested in ‘law’.Footnote ⁴⁶