In 1966, in the introduction to his two-volume Jewish and Roman Law: A Comparative Study, Boaz Cohen explained the purpose of comparing Roman law and rabbinic law as follows: “It is to determine whether there was any mutual indebtedness, and if little or no connection between their legal creations is discoverable, then to illumine dark corners in sundry branches of the law by opening up new vistas and perspectives afforded by the aggregate of analogies and contrasts.”Footnote 1
Cohen finds two reasons for comparing Roman law and rabbinic law: (1) Highlighting historical connections between Roman law and rabbinic law and (2) if there is no connection between them, understanding one or both systems of law better by way of comparison and contrast.
This article shares Cohen's twofold purpose in its comparison of the rabbinic law of personal injury with the parallel areas of Roman law. The article first addresses mishnaic laws of personal injury, which deal with (primarily) physical harm inflicted by one person on another, and are found in the eighth chapter of Mishnah Bava Kamma. These laws are similar to the Roman laws, and arose in the same cultural environment as did the Roman laws. Roman law is, therefore, an important factor to consider in the development of the mishnaic law of personal injury.
The second part of this article discusses a sugya dealing with the laws of personal injury in the Babylonian Talmud. This sugya contains judicial opinions and rabbinic teachings that show distaste for evaluating free people as slaves in order to assess their personal injury claims. Roman law shows a similar distaste for evaluating free people as slaves. The sages of this sugya are Babylonian rabbis, who lived in the Persian Empire and probably did not have direct contact with the Roman legal system. Roman law is nevertheless useful here because it aids in understanding the principles and values reflected in the Babylonian rabbinic rulings.
Part 1: Damages for Humiliation and Physical Injury
The eighth chapter of Mishnah Bava Kamma opens with a concise statement summarizing the rabbinic laws of damages for harm inflicted by one person on another:
החובל בחברו חייב עליו משום חמשה דברים בנזק בצער ברפוי בשבת ובבשת.
בנזק כיצד? סימא את עינו קטע את ידו שיבר את רגלו רואין אותו כאילו הוא עבד נמכר בשוק ושמין כמה היה יפה וכמה הוא יפה.
צער—כואו בשפוד או במסמר ואפילו על צפורנו מקום שאינו עושה חבורה אומדין כמה אדם כיוצא בזה רוצה ליטול להיות מצטער כך.
רפוי—הכהו חייב לרפאותו עלו בו צמחים אם מחמת המכה חייב שלא מחמת המכה פטור חייתה ונסתרה חייתה ונסתרה חייב לרפאותו חייתה כל צרכה אינו חייב לרפאותו.
שבת—רואין אותו כאילו הוא שומר קשואין שכבר נתן לו דמי ידו ודמי רגלו.
בשת—הכל לפי המבייש והמתבייש המבייש את הערום המבייש את הסומא והמבייש את הישן חייב וישן שבייש פטור נפל מן הגג והזיק ובייש חייב על הנזק ופטור על הבושת שנאמר [דברים כ”ה] ושלחה ידה והחזיקה במבושיו אינו חייב על הבשת עד שיהא מתכוין:
One who injures his fellow is liable for five things: injury [nezek], pain [ẓa‘ar], medical expenses [ripui], recuperation time [shevet], and humiliation [boshet].
How is it with injury? He blinded his eye, cut off his hand, broke his leg—they regard him as if he were a slave sold in the market and they assess how much he was worth and how much he is worth.
Pain—he burned him with a spit or a nail, and even on his fingernail—a place that does not leave a bruise—they calculate how much a man like him would want to receive in order to suffer such pain.
Medical expenses—if he struck him—he is obligated to heal him. If ulcers grew on him—if they are because of the wound—he is liable. If they are not because of the wound—he is exempt. If it healed and worsened, healed and worsened, he must heal him. If it healed completely—he need not heal him [should his condition worsen again].
Recuperation time—they regard him as if he were a guard for cucumbers, for money for his hand and leg has already been given to him.
Humiliation—everything is according to the one who causes humiliation, and the one who was humiliated. One who humiliates a naked person, who humiliates a blind person, who humiliates a sleeping person—is liable. A sleeping person who humiliates is exempt. If one fell from the roof and caused injury and humiliation—he is liable for the injury, but exempt from humiliation. As it is written, “She sent forth her hand and grasped hold of his private parts [bi-mevushav]” [Deuteronomy 25:11]. He is not liable for humiliation [boshet] until he intends. (M. Bava Kamma 8:1)
This passage lists five types of payment for which a person who injures his fellow may be liable: injury—the loss of value to the person were he a slave; pain—the amount of money that a person with similar pain tolerance would want in order to suffer that amount of pain; medical expenses; recuperation time—the amount of income that the victim lost by being unable to work (though he is paid only as a guard for a cucumber field and not for any difficult labor, since his loss of value as a slave already takes into account the plaintiff's inability to perform difficult manual labor); humiliation—an amount of money, unspecified in the first mishnah, for the slight to the plaintiff's honor that he incurred when he was attacked. Not every case of injury will involve all five of these payments. A case in which no permanent harm was done to the plaintiff's body will not involve a payment for injury, while a case in which the defendant only did harm accidently will not involve a payment for humiliation. As the Tosefta states, a case could involve claims for five of these payments, for one of these payments, or for any number in between.Footnote 2
Rabbinic law diverges from biblical and Second Temple precedent, but is similar to Roman law in the areas of nezek (loss of value as a slave as a result of physical injury) and boshet (damages for humiliation). The Bible knows of no monetary payment for boshet and its basic provision for personal injury involves the lex talionis (an eye for an eye), not the restitution to the victim of his loss of value as a slave. The payment for boshet is absent in the Jewish literature of the Second Temple period as well, and while Josephus reports that the law allows the plaintiff to choose monetary compensation in place of the talion, no Second Temple source eliminates the talion outright.
Boshet
Boshet in mishnaic law can be part of a claim for injury, where the injured party has suffered serious physical abuse, including permanent damage to a limb, as we saw in M. Bava Kamma 8:1. Other actions that are insulting to the injured party but do not involve lasting physical harm also make the assailant liable for payments for humiliation. Such actions are among those listed in the first half of M. Bava Kamma 8:6:
התוקע לחבירו נותן לו סלע. רבי יהודה אומר משום רבי יוסי הגלילי מנה. סטרו נותן לו מאתים זוז. לאחר ידו נותן לו ארבע מאות זוז. צרם באזנו תלש בשערו רקק והגיע בו רוקו העביר טליתו ממנו פרע ראש האשה בשוק נותן ארבע מאות זוז. זה הכלל הכל לפי כבודו. אמר רבי עקיבא אפילו עניים שבישראל רואין אותם כאילו הם בני חורין שירדו מנכסיהם שהם בני אברהם יצחק ויעקב …
One who shouts into his fellow's earFootnote 3—gives him a selah [four zuz]. Rabbi Yehudah says in the name of R. Yose the Galilean—a maneh [one hundred zuz]. If he slapped him—he gives him two hundred zuz. [If he slapped him] with the back of his hand he gives him four hundred zuz. If he slit his ear, pulled up his hair, spit and his spit reached him, removed his garment from him, uncovered the head of a woman in the market—he gives four hundred zuz. This is the general rule: everything is according to his honor. R. Akiva says: even the poor among Israel—they are regarded as free people who have lost their property, for they are the children of Abraham, Isaac, and Jacob …
As we saw above, boshet (presumably unlike the other four categories of payment) requires intent (M. Bava Kamma 8:1). Without intent to harm or cause embarrassment the injurer is not liable for damages for humiliation.
No passage that suggests that humiliation is a civil offense with a legal remedy is found in the Hebrew Bible. As we saw in Mishnah Bava Kamma 8:1, however, the Mishnah links boshet with Deuteronomy 25:11–12.
(יא) כִּי יִנָּצוּ אֲנָשִׁים יַחְדָּו אִישׁ וְאָחִיו וְקָרְבָה אֵשָׁת הָאֶחָד לְהַצִּיל אֶת אִישָׁהּ מִיַּד מַכֵּהוּ וְשָׁלְחָה יָדָהּ וְהֶחֱזִיקָה בִּמְבֻשָׁיו:
(יב) וְקַצֹּתָה אֶת כַּפָּהּ לֹא תָחוֹס עֵינֶךָ:
11. If two men get into a fight with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by his genitals,
12. you shall cut off her hand; show no pity.
These verses are not about suing for monetary recompense for humiliation. They are about what happens if a woman interferes in a fight between her husband and another man and grasps hold of the genitals of her husband's opponent. Rabbi Ishmael derived the category of boshet from this verse,Footnote 4 but this reading is not the most obvious interpretation of this verse. It is clear, then, that the category of boshet is a rabbinic innovation in the law of personal injury.
The rabbinic category of boshet is parallel to the contemporaneous Roman law of iniuria, the main action available to a free person who had suffered injury. Roman law around the time of the Mishnah had two main legal provisions that dealt with injury. One of these was grounded in the Lex Aquilia (passed in the early third century BCE), which dealt with physical damage to property (including slaves, and, eventually, children who were legally in the power (potestas) of their fathers).Footnote 5 A free person, however, could not recoup damage for physical harm, other than, perhaps, the value of medical treatment and the loss of employment.Footnote 6 Instead, a free person had an action for iniuria, insulting behavior that harmed another person either physically or with words. The Roman laws of iniuria developed through a series of praetorian edicts. The first and most important of these was the edictum generale de iniuriis aestimandis, issued around 206 BCE. It probably read as follows:
Whoever brings a law-suit for iniuriae, let him clearly report all the specific facts which caused the iniuriae, and let him propose a penalty of not less [greater?] than what was the bail.Footnote 7
The edict did not specify fixed monetary penalties for particular insults, but instead allowed a panel of jurors (recuperatores) or a single judge (iudex) to evaluate how much the defendant had to pay the plaintiff. This edict replaced the previous statutes for personal injury in the Twelve Tables, the Romans' earliest code of law, from the mid-fifth century BCE.Footnote 8
This general edict and the seven more specific edicts that followed it were understood by Roman jurists to cover a wide variety of insulting actions and actions that harmed a person's reputation. Insults that were actionable under these edicts included: seizing a freeman as a runaway slave,Footnote 9 interrupting a person who was speaking before a court,Footnote 10 preventing someone from using his own property or from sitting in a public space,Footnote 11 and singing a song detrimental to another's reputation.Footnote 12 Striking another person's face was considered atrox (aggravated) iniuria and was dealt with especially harshly.Footnote 13 Further provisions for iniuria were covered under the Lex Cornelia de Iniuriis of 81 BCE, which created a criminal process for beatings, thrashings, and entering a person's home by force.Footnote 14
A person, then, could have an action for iniuria because of assault or because of other forms of insult, as Labeo, a jurist of the first century CE, stated:
1. Labeo says that contumely [iniuriam] can be perpetrated by act or by words: by act, when an assault is made; by words, there is insult whenever there is no physical attack.
2. Every contumely [iniuriam] is inflicted on the person or relates to one's dignity or involves disgrace: It is to the person when someone is struck; it pertains to dignity when a lady's companion is led astray; and to disgrace when an attempt is made upon a person's chastity.Footnote 15
Thus, iniuria is like boshet, in that both physical attack and other forms of insult are actionable (though the rabbinic law includes only insulting actions that involve some physical contact with the victim or her clothing). Moreover, like boshet, iniuria requires intent:
[S]omeone can suffer an insult [iniuriam], even though unaware, but no one can perpetrate one without knowing what he is doing, even though the victim be unaware of it.Footnote 16
The mishnaic principle, as we have seen, is the same, though the Mishnah expresses this in the more concrete formulation that “one who embarrasses a sleeping person is liable, while a sleeping person who embarrasses is exempt.”Footnote 17 In Roman law, iniuria can be considered aggravated (atrox) if it is inflicted on a person to whom honor is normally due: a magistrate, a parent, or one's patron, or if it is inflicted by someone of inferior rank on someone of superior rank.Footnote 18 Likewise, anonymous opinions in the Mishnah indicate that the damages for boshet depend on the status of the assailant and the victim: “everything is according to the one who caused humiliation and the one who was humiliated” (M. Bava Kamma 8:1) and “everything is according to his honor” (M. Bava Kamma 8:6). Location is also a factor in both systems. In Roman law, iniuria “is aggravated … by reason of time, if inflicted at the games or in full view … it is of great importance whether the affront be perpetrated in the view of the people or in private, the former being aggravated.”Footnote 19 Likewise, the Tosefta states: “If he inflicted boshet upon him in the bathhouse he is liable—but inflicting boshet in the bathhouse is not similar to inflicting boshet in the market.”Footnote 20
There are also important differences between the mishnaic law and the Roman law. The mishnaic law includes fixed penalties for different kinds of insults, as we have seen in M. Bava Kamma 8:6, while the Roman law allows the recuperatores or iudex to assess the damages based on the situation. (Though, to be sure, the Mishnah has some internal tension on this issue; the statements about assessing boshet based on the status of the assailant and victim suggest that no fixed table of penalties could do justice to the complexity of assessing damages for insult.) The Roman law speaks more in abstractions, while the mishnaic law speaks more in concrete cases, though this is largely a matter of degree; Roman law often uses concrete cases and mishnaic law will occasionally enunciate a more abstract principle. Roman law allows free persons only an action for iniuria; it does not allow free persons to be evaluated as slaves and collect damages for their physical injury. In contrast, mishnaic law, in addition to allowing an action for boshet, does allow free persons to be evaluated as slaves and to recoup damages for their physical injury.
One difference between the Roman law and the rabbinic law that deserves brief examination is the question of whether a person can give up his or her honor. The Roman law allows a person to relinquish his honor, while the rabbinic law suggests that a person may not give up his honor. T. Bava Kamma 9:31 indicates that a person who dishonors himself is liable before God:
… וכשם שחייב על נזקי חבירו כך הוא חייב על נזקי עצמו. הוא עצמו שרק וטס בפניו כנגד חבירו מתלש בשערו מקרע את כסותו משבר את כליו מפזר את מעותיו בחמתו פטור מדיני אדם וחייב בדיני שמים שנ' ואך את דמכם לנפשותיכם אדרוש.
ר' שמעון בן לעזר אמ' משם ר' חלפאי בן אגרא שאמ' משם ר' יוחנן בן נורי מתלש בשערו מקרע את כסותו משבר את כליו מפזר את מעותיו בחמתו יהא בעיניך כעובד ע"ז שאילו אומ' לו יצרו לך ועבוד ע"ז עובד היה שכך היא עבודתו של יצר הרע.
And just as he is liable for harming his fellow, so too he is liable for harming himself. If he himself spits and spreads it on his face in the presence of his fellow, pulls up his hair, tears his garment, breaks his vessels, throws away his coins in his rage, he is exempt according to human law, but liable according to the law of heaven. As it is written “I shall demand the blood of your lives” [Genesis 9:5].
R. Shimon b. Elazar said in the name of R. Ḥalfai b. 'Agra who said in the name of R. Yoḥanan b. Nuri: One who pulls up his hair, tears his clothing, breaks his vessels, scatters his coins in his rage—he should be in your eyes like one who performs idolatry, for if his inclination should tell him: “Go and commit idolatry”—he would do it. For such is the work of the evil inclination.
The Roman laws of iniuria do not cover cases such as this. The Roman law of iniuria is civil law, and in a framework of civil law it is nonsensical to forbid a person from humiliating himself or herself. Moreover, Roman law allows a person to permit others to insult him. It states that “there is no affront when the victim consents.”Footnote 21 Mishnaic law, in contrast, states that “One who says: ‘Blind my eye, cut off my hand, break my leg’—[the injurer] is liable—[if the one to be injured says] ‘and you will be exempt’—[the injurer] is liable.”Footnote 22 A person, in tannaitic law, cannot give up his honor (or his right to protect his body).
This question of where a person's honor comes from is at least part of what is at stake in the story of Rabbi Akiva's judgment found in the second half of M. Bava Kamma 8:6, which reads as follows:
… והכל לפי כבודו … אמ' ר עקיבה אפילו עניים שביש' רואין אותן כילו הן בני חורין שירדו מנסכיהם שהם בני אברהם יצחק ויעקב. מעשה באחד שפרע ראשה של אשה ובאת לפני ר' עקיבה וחייבו ליתן לה ארבע מאות זוז. אמ' לו ר' תן לי זמן ונתן לו. שימרה עומדת על פתח חצירה וש בר את הפך בפניה ובו כאסר שמן וגילת את ראשה והיתה מטפחת ומנחת על ראשה והעמיד עליה עדים ובא לפני ר' עקיבה ואמ' לו ר' לזו אני נותן ארבע מאות זוז. אמר' לו ר' עקיבה לא אמרתה כלום שהחובל בעצמו אף על פי שאינו רשיי פטור ואחרים שחבלו בו חייבים והקוצץ את נטיעותיו אף על פי שאינו רשיי פטור ואחרים שקצצו את נטיעותיו חייבים.Footnote 23
And everything is according to his honor … R. Akiva said: Even poor Israelites—they are regarded as if they are free people who have lost their property, for they are the children of Abraham, Isaac, and Jacob.
It once happened that someone uncovered the head of a woman and she came before R. Akiva and [R. Akiva] declared [the man] liable to give her four hundred zuz. [The man] said: Rabbi, give me time. And he gave it to him.
[The man] watched her standing at the entrance to her courtyard and he broke a jug in her presence and in [the jug] was about an as of oil and the woman revealed her head and was collecting [the oil] with her palm and placing [it] on her head. And he appointed witnesses against her and he came before R. Akiva and said to him: Rabbi, to this one should I give four hundred zuz?
R. Akiva said to him: You have not said anything, for one who injures himself—even though it is not permitted—is exempt. Others who injure him, are liable. And one who cuts his shoots—even though it is not permitted—is exempt. Others who cut his shoots—are liable.
In this story, a man humiliates a woman by uncovering her hair in public and is judged by Rabbi Akiva to be liable for four hundred zuz. The man attempts to demonstrate that his action was not humiliating to the woman, since she was willing to uncover her own hair in order to gather up a very small quantity of oil, worth only an as (the smallest unit of Roman currency). But Rabbi Akiva refuses to listen to this man's proof. He claims that even though the woman has harmed her own dignity, this does not mean that she has no dignity or that the man is entitled to violate her dignity with impunity.
The story may be meant to illustrate R. Akiva's dictum that “even poor people in Israel are regarded as if they are free people who have lost their property,” which probably expresses a disagreement with the anonymous line that came before it: “everything is according to his honor.” R. Akiva argues that honor is not a quality that a Jew can give up or that can be lost. All Jews are to be treated as honorable. The story illustrates that principle in action. Even this woman, who is willing to uncover her head in order to acquire a tiny amount of oil, worth only an as, is considered in R. Akiva's view to have honor worth four hundred zuz. The plaintiff in the case did not anticipate R. Akiva's ruling. He seems to have held a more Roman view of honor, where a person could give up his own honor. R. Akiva insists that the woman cannot give up her honor. If she harms herself, she is exempt, but if others harm her, they are liable. It is, perhaps, not coincidental that Mishnah Avot attributes to R. Akiva the statement: “Precious is man who was created in God's image … precious are Israel who are called the children of God.”Footnote 24 R. Akiva's approach to compensation for shaming assumes a fundamental equality among all Jews (and perhaps all people) regardless of temporary differences in their social position.Footnote 25
Nezek
Like boshet, nezek, the direct payment for physical injury based on the decrease in the plaintiff's value as a slave, is found only in rabbinic law. The rabbinic assessment of damages for nezek seems to contradict the plain meaning of the biblical talion law: “eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”Footnote 26 The lex talionis, which appears three times in the Bible,Footnote 27 states that physical injury to the victim must be compensated by the equivalent physical injury to the assailant's body. It is possible that the law in the Torah assumes that it is up to the victim to decide whether he wishes to take his compensation from the assailant's body or whether he wishes to accept monetary compensation in place of the talion. This may be the implication of Numbers 35:31–32.
(לא) וְלֹא תִקְחוּ כֹפֶר לְנֶפֶשׁ רֹצֵחַ אֲשֶׁר הוּא רָשָׁע לָמוּת כִּי מוֹת יוּמָת:
(לב) וְלֹא תִקְחוּ כֹפֶר לָנוּס אֶל עִיר מִקְלָטוֹ לָשׁוּב לָשֶׁבֶת בָּאָרֶץ עַד מוֹת הַכֹּהֵן:
31. You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death.
32. Nor may you accept ransom in lieu of flight to a city of refuge, enabling one to return to live on his land before the death of the priest.
This law forbids the family of a murdered person from accepting monetary compensation in place of the life of the murderer. The murdered person must be put to death; the family does not have the right to accept compensation in place of vengeance. The fact that these verses specify that monetary compensation may not substitute for punishment of the aggressor only in a case of murder may imply that in cases of lesser injury, such as damage to an eye or a tooth, a person is permitted to accept compensation in lieu of the talion.
All prerabbinic ancient Jewish biblical interpreters understood the lex talionis to guarantee the victim of an assault at least the option of compensation in the form of equivalent injury inflicted upon the assailant's body. Josephus presents the law as follows in his Jewish Antiquities:
He that maimeth a man shall undergo the like, being deprived of the limb whereof he deprived the other, unless indeed the maimed man be willing to accept money; for the law empowers the victim himself to assess the damage that has befallen him and makes this concession, unless he would show himself too severe.Footnote 28
Josephus understands the biblical law of personal injury to allow the victim to take monetary compensation in place of retaliation, perhaps based on the verses in Numbers 35. Philo, however, knows of no such exception to the rule. Philo states:
If, then, anyone has maliciously injured another in the best and lordliest of his senses, sight, and is proved to have struck out his eye, he must in his turn suffer the same, if the other is a free man, but not if he is a slave. Not that the offender deserves pardon or is less in the wrong, but because if the master is mutilated as a punishment the injured slave will find him worse than before. …Footnote 29
Philo elsewhere favorably contrasts the Jewish law, which punishes physical injury with physical injury, with the Hellenistic law, which allowed for monetary payment as a penalty for physical injuries.Footnote 30
A rabbinic memory of a prerabbinic literal understanding of these verses is also found in Megillat Ta‘anit in its scholion on the fourth of Tammuz. The O ScholionFootnote 31 there states that the Boethusians (a Second Temple sect) understood “an eye for an eye” literally.Footnote 32 The Mekhilta de-Rabbi Ishmael and Babylonian Talmud attribute this literal interpretation of an eye for an eye to Rabbi Eliezer b. Hyrcanus,Footnote 33 a student of Rabbi Yoḥanan b. Zakkai, whom rabbinic literature elsewhere depicts as a preserver of rabbinic tradition who was opposed to any kind of innovation.Footnote 34 These rabbinic texts serve as important corroborating evidence for the picture that we find in Josephus and Philo.
We do not know how often the talion was enforced during the Second Temple period. Josephus states that the injured party could accept monetary compensation for his injury, and, given the lack of evidence that the talion was carried out during the Second Temple period, the acceptance of monetary compensation in these cases may well have been the standard practice. However, these sources from the Second Temple period clearly demonstrate that the formal legal abolition of the talion and its replacement with monetary compensation is a rabbinic innovation. The assessment of nezek, the valuation of the injured party as though he were a slave, is a rabbinic innovation as well. These rabbinic laws are similar to certain provisions of the Roman Lex Aquilia. The Lex Aquilia, which deals with damage to property, allows for an action for damage to slaves and children in the power of their fathers,Footnote 35 where the damages assessed are equal to the loss of the slave's market value:
We accepted that “to rend asunder” includes the case of him who wounds a slave either with a rod or whip or fist or strikes him with a weapon or in any other way that cuts him or makes a bruise, but only if wrongful damage is caused thereby. However, if he makes the slave in no way less valuable or less useful, the Aquilian action will not lie, and the action for insult [iniuria] will have to be brought so far as this matter is concerned; for the Aquilian action avenges only those cases of breakage which cause loss. Therefore, if a slave has not been rendered worse in point of his value, but expense is incurred in making him fit and healthy, it seems to me that in this respect loss has been caused, and accordingly it is possible to proceed under the Lex Aquilia.Footnote 36
We can see here that both the slave's loss in value and the slave's medical expenses are recoverable under the Lex Aquilia. Like the rabbinic law, moreover, the Lex Aquilia exempts a lunatic and a young child from liability.Footnote 37
Also like the rabbinic law, the Roman laws found in the Lex Aquilia and in the laws of iniuria discussed above replaced an earlier law, in the Twelve Tables, which was based around a version of the lex talionis.
2. If a person has maimed another's limb, let there be retaliation in kind unless he makes agreement for composition with him.
3. If he has broken or bruised a freeman's bone with hand or club, he shall undergo penalty of 300 pieces; if a slave's, 150.
4. If he has done simple harm [to another], penalties shall be 25 pieces.Footnote 38
There is much scholarly dispute about the meaning of these clauses and their relationship with one another.Footnote 39 Alan Watson quite reasonably explains section 2 as the clause meant to cover the majority of the cases, and sections 3 and 4 as dealing with specific injuries. If this is the case, then the provision that covered the majority of injuries in early Roman law allowed the victim retaliation in kind, though the victim had the option of reaching an agreement for monetary compensation with his assailant. The supersession of these provisions of the Twelve Tables by the Lex Aquilia (with regard to slaves) and the praetorian edicts dealing with iniuria (with regard to free persons) is parallel to the development in rabbinic law, from the lex talionis in the Bible to laws that permitted only monetary compensation in rabbinic literature.
Moreover, Romans and rabbis talked about this change in rather similar ways. The rabbis claim that the biblical verses stating “an eye for an eye, a tooth for a tooth” actually mean that the victim of a physical assault is entitled only to monetary compensation. Some of the rabbinic arguments that make this claim are based solely on the exegesis of scriptural verses and naturally do not have parallels in Roman discourse.Footnote 40 Other rabbinic arguments, however, mix exegesis with logical reasoning, and here we do see loose parallels with the ways that some Romans talked about the provisions for talion in the Twelve Tables.
The Talmud Yerushalmi argues that “an eye for an eye” really means monetary compensation, because if a blind person blinded someone or a person with missing limbs cut off someone's limb it would be impossible to fulfill the law literally:
… שאם היה סומא וסימא את עינו קיטע וקיטע את ידו—היאך זה מתקיים ועשיתם לו כאשר זמם לעשות לאחיו? מגיד שאינו משלם אלא ממון.
… for if he was blind and he blinded his eye, or missing a hand and he cut off his hand—how could “and you shall do to him as he planned to do to his kinsman” [Deuteronomy 19:19] be fulfilled with regard to this one? This teaches that he only pays money.Footnote 41
A different exegetical argument incorporating logical reasoning, though not found in any source from the Land of Israel, is attributed by the Babylonian Talmud to a Palestinian rabbi from the tannaitic period:
תניא, ר' דוסתאי בן יהודה אומר: עין תחת עין—ממון, אתה אומר: ממון, או אינו אלא עין ממש אמרת? הרי שהיתה עינו של זה גדולה ועינו של זה קטנה, היאך אני קורא ביה עין תחת עין?
It was taught: Rabbi Dostai b. Yehudah says: “An eye for an eye”—monetary compensation. Do you say “monetary compensation” or is it “an eye literally” that you said? Behold, if this one's eye is large and that one's eye is small, how can I apply the verse “an eye for an eye” to him?Footnote 42
Rabbi Dostai b. Yehudah argues in this baraita that it is impossible to implement the verse “an eye for an eye” because the victim's eye might be larger than the assailant's eye (or vice versa), in which case taking an eye for an eye would not be strictly just at all, since the eyes were not equal to begin with. Therefore, R. Dostai concludes, by “an eye for an eye” the Torah must mean monetary compensation.
These kinds of arguments about the impossibility of the talion are also found in Roman writings. The Roman author Aulus Gellius (c. 125—180 CE), in his Attic Nights, reports that the philosopher Favorinus made an argument of this type in his attack on the laws of the Twelve Tables:
Again, some things in those laws obviously cannot, as I have said, even be carried out; for instance, the one referring to retaliation, which reads as follows, if my memory is correct: “If one has broken another's limb, there shall be retaliation, unless a compromise is made.” Now not to mention the cruelty of the vengeance, the exaction even of a just retaliation is impossible. For if one whose limb has been broken by another wishes to retaliate by breaking a limb of his injurer, can he succeed, pray, in breaking the limb in exactly the same manner? In this case there first arises this insoluble difficulty. What about one who has broken another's limb unintentionally? For what has been done unintentionally ought to be retaliated unintentionally. For a chance blow and an intentional one do not fall under the same category of retaliation. How then will it be possible to imitate unintentional action, when in retaliating one has not the right of intention, but of unintention? But if he break it intentionally, the offender will certainly not allow himself to be injured more deeply or more severely; but by what weight and measure this can be avoided, I do not understand. Nay more, if retaliation is taken to a greater extent or differently, it will be a matter of absurd cruelty that a counter-action for retaliation should arise and an endless interchange of retaliation take place.Footnote 43
Aulus Gellius reports that Favorinus made several arguments about the impossibility of carrying out the talion. One of these arguments is that it is impossible to break the assailant's limb in exactly the same manner as he broke the limb of the victim. If the attacker broke a limb unintentionally, it is impossible to break his limb unintentionally. Moreover, it is likely that when breaking the limb of the attacker one will break it more severely than the attacker broke the limb of the victim, which could then result in a vicious cycle, where the victim now must have his limb broken further, and so on.
Favorinus, of course, is attacking the laws of the Twelve Tables, not trying to prove that this statute of the Twelve Tables actually means the same thing as the later Roman statutes. Roman law does not have the same exegetical stance toward the Twelve Tables that rabbinic law has toward the Torah, nor does the authority of Roman law derive from its earliest law codes in the same way that the authority of rabbinic law derives from the Torah. This makes it all the more striking that some Romans claimed that their early lex talionis could not have been carried out. Following Favorinus's speech, Gellius has the jurist Sextus Caecilius, defending the laws of the Twelve Tables against Favorinus, say that the talion was never actually imposed in Roman law, for if the defendant refused to accept the verdict that he was going to lose a limb, the judge merely imposed a fine, resulting in monetary payment in place of physical punishment.Footnote 44
The arguments in the Attic Nights are, to be sure, not identical with those in rabbinic literature, but they are close cousins. The rabbinic arguments belong to the same cultural environment as those in the Attic Nights, and are similar to those of Sextus Caecilius, in that they interpret the talion from the legal past out of existence. Paradoxically, the rabbinic arguments are also similar to those of Favorinus, in that they support the present law of monetary compensation and point to the absurdity of the past law of the talion. To be sure, the rabbinic laws do this subtly and perhaps covertly, while Favorinus openly proclaims the cruelty of the laws of the Twelve Tables. While rabbinic literature never attacks the biblical law as cruel the way Favorinus attacks the law of the Twelve Tables, a sense that the talion was cruel probably contributed to the rabbinic abandonment of this form of punishment.
Accounting for the Existence of These Parallels
We can begin to account for these similarities between the Roman law of personal injury and the rabbinic categories of nezek and boshet by realizing that Jews under Roman rule inevitably came into contact with the Roman legal system. In many respects, Jews were ordinary Roman provincials; scholarship on the Jews in antiquity has increasingly recognized that the Jews were “subjective agents fully embedded within their cultural environments.”Footnote 45 Before 70 CE, most Jews in Palestine were noncitizens and did not have direct access to the Roman courts, but in cases in which the defendant was a Roman citizen, he could choose whether the case would be heard in the Jewish court system or the Roman one.Footnote 46 Most Roman defendants would have preferred the Roman legal system, so Jews who became involved in court cases with Romans quickly became acquainted with some of the contours of Roman law. Moreover, a considerable number of Jews living in Judea in the period after 70 CE probably were Roman citizens and would have been able to use the Roman courts. Roman law granted citizenship to any slaves who were manumitted. Jews taken as slaves after the Great Revolt who were bought by Roman owners in Palestine thus acquired citizenship when they were manumitted.Footnote 47 After 212 CE, when the Emperor Caracalla's Constitutio Antoniniana granted citizenship to all residents of the Roman Empire, all Jews in Roman Palestine had access to the Roman legal system.
The evidence of the Babatha archive shows how Jews under Roman rule responded to Roman law and made use of the Roman legal system. Babatha, a Jewish woman who lived in the neighboring province of Arabia and lacked Roman citizenship, sued in the court of the Roman governor at Petra.Footnote 48 Babatha's family documents “display a sensitivity to Roman as well as to Jewish law,” and one of the documents from this archive describes a hearing before xenokritai, who may be Roman judges specifically empowered to hear cases involving noncitizens.Footnote 49
Admittedly, what was true for most Jews was not necessarily true for the rabbis. The rabbis “were emphatically not normal elites or subelites of the eastern part of the Roman empire.”Footnote 50 They rejected Roman values, produced literature remarkably different from the other literature of the Greco-Roman world, and openly expressed their hostility toward Rome.Footnote 51 Yet there are good reasons to think that the rabbis may have been open to adopting some features of Roman law into Jewish law. Some Tannaim seem to have been concerned with how the Romans saw rabbinic Halakhah. In one famous narrative, the rabbis imagine that Roman generals disguised themselves as Jews in order to learn rabbinic law and report back to Rome. The Romans deliver the judgment: “The whole Torah is pleasant and praiseworthy save one thing alone.…”Footnote 52 This story sounds legendary (Roman generals probably did not disguise themselves as Jews), but it likely reflects a real rabbinic concern with how Romans perceived their legal system. What better way could there be for the rabbis to convince the Romans (or themselves) of the justice of their legal system than to adopt elements of Roman law?
There may also have been a more practical reason for the changes in rabbinic law. The rabbis seem to have decided very few civil cases during the tannaitic period.Footnote 53 They lacked any formal authority; they served as judges only by agreement of the litigants to use them as arbitrators. Making the mishnaic law more similar to the Roman law may have been a tactic to persuade Jewish litigants to use the rabbinic courts and to persuade the Romans to grant a degree of recognition to rabbinic courts.Footnote 54
For these reasons, it makes sense to posit that the rabbinic law of personal injury, particularly the categories of boshet (humiliation) and nezek (injury), developed under the influence of Roman law.Footnote 55 The ability to sue for humiliation is an unusual feature of both Roman and rabbinic law. The idea that a person could sue for insult in a case of physical injury is not an intuitive idea that we would expect to show up in every legal system. The striking nature of the parallels between iniuria in Roman law and boshet in rabbinic law makes it likely that the Roman law played some role in the development of the rabbinic law. Yet the question of influence is notoriously difficult. As Bernard Jackson has noted, when talking about influence, it is not enough to state that a particular element from a foreign legal system was received by rabbinic law, but it is necessary to explain, based on a second environmental factor, why rabbinic law adopted that particular element of Roman law and did not adopt other elements.Footnote 56
In the case of boshet, the environmental factors leading to its adoption from Roman law are not hard to find. Honor was of central importance to Roman society and the functioning of the Roman Empire.Footnote 57 The concern for honor reflected in these laws is a sign of the rabbis' immersion in their Roman environment, since biblical views of honor are very different. While there are some inklings of concern for shame and honor in the Bible (the Dinah story in Genesis 34, the compensation paid by a husband when he falsely accuses his wife of not having been a virgin in Deuteronomy 22:13–19, the command to remain outside a debtor's house and allow him to bring the pledge outside in Deuteronomy 24:10–11, the oft repeated command to honor parents), Seth Schwartz has rightly pointed out that the Torah is uncomfortable with notions of personal honor and only God is considered unconditionally honorable in the Torah.Footnote 58 The concept of personal honor becomes significant in Palestinian rabbinic literature, though the rabbis relate to the notion of honor with a great deal of ambivalence and complexity.Footnote 59
Indeed, the ambivalence of some rabbis toward the importance of honor probably accounts for the system of fixed payments for insult and the legal ruling and the story of Rabbi Akiva in the Mishnah. As we have seen, the system of fixed payments does not vary the payment for insult on the basis of the difference in honor between the assailant and the victim. Rabbi Akiva insists that even poor Israelites are to be treated as honorable in both his statement and the story. These parts of the Mishnah suggest that the relationship between the rabbinic law of boshet and the Roman law of iniuria was a complex and heavily negotiated one. Roman conceptions were contested, subverted, and transformed, as often occurs in the processes of cultural exchange.
In the case of nezek, the Roman law and the rabbinic law underwent not quite parallel (since the Roman development happened far earlier) but staggered processes of development in abandoning the talion. Again, using Jackson's model in which the borrowing of a cultural element is usually conditioned by another environmental factor, the Roman cultural environment in general—where, as we saw in the Attic Nights, retaliation in kind for physical injury was regarded as unnecessarily cruel—probably caused the rabbis to look to models in Roman law.
One might argue, of course, that the evolution of the rabbinic law and Roman law from the talion to payment of monetary compensation is simply the natural evolution by which law becomes more “civilized.” Sometimes, of course, natural processes do join with external factors in shaping law.Footnote 60 Yet there is nothing natural about a move from physical retaliation to monetary compensation. As Bernard Jackson has warned, “[w]e should be wary of applying our own value judgments to the historical material, in the form of categorizing a development as ‘natural.’”Footnote 61 A. S. Diamond has shown that in the ancient Near East, the talion provisions in the Code of Hammurabi were preceded by earlier laws that granted monetary recompense to victims of assault.Footnote 62 It might be thought to be more just to enact physical retaliation for a physical crime, than to impose a monetary penalty for physical harm. We have already seen that Philo, in defending the law of the Torah, argues that true justice involves retaliation in kind.Footnote 63 There is, therefore, no reason to think that the abandonment of the strict talion for monetary compensation was an inevitable or natural development; it is more likely to have been conditioned by the Roman environment.
While I do think that it is likely that Roman law in particular influenced the development of rabbinic law in these two cases, this claim is difficult to prove. The very nature of Jackson's model, in which environmental factors account for the borrowing of a particular element from Roman law, means that we could account for the similarity between mishnaic law and Roman law solely on the grounds that rabbis and Roman jurists lived in overlapping cultural worlds.Footnote 64 The rabbis also develop the law through their own internal hermeneutical processes, which deserve to be taken seriously.Footnote 65 Nevertheless, given the similarity of the Roman laws and rabbinic laws and the likelihood that the rabbis were familiar with these laws, the most reasonable conclusion is that the parallels in Roman law were one factor that contributed to the development of the rabbinic laws in the eighth chapter of Mishnah Bava Kamma.
Part 2: Assessment as a Slave in the Babylonian Talmud
In the case above, the similarity between Roman law and rabbinic law, combined with the likelihood that these laws were developed by rabbis living under Roman rule, led to the hypothesis that the rabbinic law had been influenced by the Roman law. There are also, however, parallels between Roman law and the laws developed by the rabbis of the Babylonian Talmud, who lived under Persian rule.
One such case occurs in the area of personal injury law: Babylonian judicial implementation of the collection of damages for personal injury may have begun to look more like the classical Roman law, which, as we have seen, did not assess the value of free people as though they were slaves, but only measured the harm to their honor. A sugya in the eighth chapter of tractate Bava Kamma of the Babylonian Talmud may provide evidence that some Babylonian rabbis sought to circumvent the practice of collecting damages for nezek and assessing the victim's value as if he or she were a slave:Footnote 66
תניא, ר"א אומר: עין תחת עין—ממש. ממש סלקא דעתך? רבי אליעזר לית ליה ככל הני תנאי? אמר רבה: לומר, שאין שמין אותו כעבד. א”ל אביי: אלא כמאן? כבן חורין, בן חורין מי אית ליה דמי? אלא אמר רב אשי: לומר, שאין שמין אותו בניזק אלא במזיק.
ההוא חמרא דקטע ידא דינוקא, אתא לקמיה דרב פפא בר שמואל, אמר להו: זילו שומו ליה ארבעה דברים. אמר ליה רבא: והא אנן חמשה תנן! א"ל: לבר מנזק קאמינא. אמר ליה אביי: והא חמור הוא, וחמור אינו משלם אלא נזק! אמר להו: זילו שומו ליה נזקיה. והא כעבדא בעי למשיימיה! אמר להו: זילו שיימוהו כעבדא. אמר להו אבוה דינוקא: לא בעינא, דזילא ביה מילתא. אמרו ליה: והא קא מחייבת ליה לינוקא! אמר להו: לכי גדיל מפייסנא ליה מדידי.
ההוא תורא דאלס ידיה דינוקא, אתא לקמיה דרבא, אמר להו: זילו שיימוהו כעבדא. אמרו ליה, והא מר הוא דאמר: כל הנישום כעבד—אין גובין אותו בבבל! אמר להו: לא צריכא דאי תפס.
רבא לטעמיה, דאמר רבא: נזקי שור בשור ונזקי שור באדם—גובין אותו בבבל, נזקי אדם באדם ונזקי אדם בשור—אין גובין אותו בבבל.
A. It was taught: Rabbi Eliezer [T2] says: “an eye for an eye”—literally. Could you really think [it means] literally? Does R. Eliezer disagree with all of these Tannaim [who have said that “an eye for an eye” means monetary compensation]?
RabbahFootnote 67 [BA3] said: This means that one does not evaluate him as a slave.
Abaye [BA4] said to him: Like what then?
Like a free person.
Does a free person have monetary value? Rather, Rav Ashi [BA6] said: this means that we don't assess the value of the victim, but of the assailant.
B. A certain ass cut off the hand of a child. He [or: the case] came before Rav Papa b. Shmuel [BA3/4]. He said to them: Go, assess the value of the four things. Rava [BA4] said to him:Footnote 68 But we learn in the Mishnah, five [things].Footnote 69 [Rav Papa] said to [Rava]: I meant, except for nezek. Abaye [BA4] said to him:Footnote 70 But he is an ass,Footnote 71 and an ass only pays nezek.Footnote 72 He said to them: Go assess his nezek. But he needs to be evaluated like a slave! He said to them: Go, assess his value like a slave. The father of the child said to them: I don't want this, for this thing is degrading to him. They said to him: But then you will owe the child [the money that he was entitled to from this lawsuit]. [The father] said to them:Footnote 73 When he grows up, I will compensate him from my own [property].
C. A certain ox chewed the hand of a child. He came before Rava [BA4]. He said to them: Go, assess his value like a slave. They said to him:Footnote 74 but didn't the master [i.e. you] say:Footnote 75 Anyone who is assessed as a slave—the payment is not collected in Babylonia. He said to them:Footnote 76 No, it is necessary,Footnote 77 if the child should seize [property from the owner of the ox].
D. Rava is consistent in his reasoning, for Rava said: Nezek dealt by an ox to an ox or a man to an ox—they collect it in Babylonia. Nezek dealt by a man to a man, or by an ox to a man—it is not collected in Babylonia.
This sugya is Babylonian, consisting mainly of the statements of rabbis from the third generation of Babylonian Amoraim (Rabbah) to those of the sixth generation (Rav Ashi), as well as legal narratives about these rabbis. Some of the statements of the rabbis in this sugya are puzzling, but can be explained by understanding that they reflect discomfort with the practice of evaluating free people as though they were slaves. In the discussion that follows, the general accuracy of the Babylonian Talmud's attribution of particular views to particular sages is assumed. Even if the Babylonian Talmud is incorrect about which sage took which position, the approximate provenance of the rabbinic saying is likely correct.Footnote 78
In section A, the Babylonian Amoraim discuss a teaching of the Tanna R. Eliezer, who, as has been argued above, seems to preserve the earlier halakhah that was rejected by the rabbis. Rabbah and Abaye (a third-generation Amora and his student, a fourth-generation Amora) discuss this baraita and interpret it to mean that a person is not evaluated as a slave, but rather as a free person. The Talmud's anonymous editorial voice, the stam ha-talmud, immediately dismisses this interpretive possibility, asking rhetorically “And does a free person have value?” It is, however, quite possible for someone to be evaluated as a free person. The stam is motivated by its literary concern to create arguments and it wants to reject Rabbah's solution in order to make room for Rav Ashi's solution. But a person's nezek can be evaluated in other ways besides assessing his value as a slave. One could, for example, measure the person's lost earnings. This would be different from the way that the Mishnah evaluates lost earnings (shevet), in which the loss of earnings is measured during the person's period of recuperation as if he were an unskilled laborer. Instead, one would estimate the person's potential earnings during his or her lifetime before the injury and subtract from that the person's likely future earnings after the injury. Such an evaluation was used in Roman law, as the Lex Aquilia began to be adapted to allow for actions on behalf of free people.Footnote 79 Rabbah and Abaye's interpretation of this baraita may stem from a discomfort with the process of evaluating free people as though they were slaves; they may be proposing an alternate method of evaluation, using R. Eliezer's teaching as a jumping off point for their own teaching.
Rav Ashi (a Babylonian Amora of the sixth generation) proposes a different interpretation of R. Eliezer's teaching, probably based on Rabbah's interpretation that R. Eliezer is saying that we don't evaluate the victim like a slave. Rav Ashi proposes that instead of evaluating the damage to the victim as if he were a slave, the valuation should be carried out on the body of the assailant. This at least partially corresponds with R. Eliezer's statement in the baraita. R. Eliezer says that “an eye for an eye” is meant literally and Rav Ashi's memra does take it more literally than the Mishnah does. That is, Rav Ashi's statement that the evaluation should be carried out on the assailant's body probably understands the assailant as paying a ransom for his own limb, which the Torah says he should lose.Footnote 80 Rav Ashi may also be expressing a certain discomfort with the process of evaluating the victim as a slave. He may agree with the sentiment expressed by the father in the subsequent story that such an evaluation is degrading. Therefore, since it is the assailant who is at fault, this degrading process should be carried out on him and not on the victim. This interpretation of Rav Ashi's intent, however, is somewhat uncertain.
In section B, we have an odd legal narrative. The case of an ass that cut off the hand of a child is presented before Rav Papa bar Shmuel (third-/fourth-generation Babylonia), who tells some anonymous “them” to go assess the four things. When Rava insists that the mishnah speaks of five things, Rav Papa replies with an ambiguous statement: “I meant, except for nezek.” This reply could either convey that he meant that the four things should be assessed in addition to nezek or that he clarifies his earlier ruling to indicate that he meant that only the four categories other than nezek should be assessed.Footnote 81
Abaye then points out that this is an animal, which should be liable only for nezek and not for any of the other payments. The father of the child objects to having his son assessed for nezek, because the practice of assessing him as a slave is degrading to him, and ultimately agrees to compensate his son from his own property, rather than allow him to be subject to the humiliation of evaluation as a slave.
This story is extremely puzzling. It is difficult to understand why Rav Papa commands that the child be assessed for four payments, which are not paid in the case of damage by an animal. This is not a case in which the mishnaic law leaves any room for ambiguity. Injuries by humans involve five types of payments; injuries by animals require only the payment of nezek.Footnote 82 It is difficult to imagine that Rav Papa was ignorant of such a basic facet of mishnaic law.
One possibility, advanced by some medieval commentators, is that Rav Papa was misinformed about the facts of the case and thought that the child had been harmed by a human rather than an animal.Footnote 83 This answer is unsatisfactory. How could it be that Rav Papa renders a decision in this case based completely on false premises about easily ascertainable facts? And if Rav Papa b. Shmuel errs in the facts of the case somehow, why is it that he is corrected by Rava,Footnote 84 who has no privileged knowledge of the case? Why is he not corrected by the disputants in the case, or by the witnesses, who presumably have firsthand knowledge of the facts? Moreover, it seems from the language of the rebuke to Rav Papa that he is corrected not on the basis of the facts but on the basis of the law.Footnote 85 There is no inkling anywhere in the talmudic story that Rav Papa has not been adequately informed about the facts of the case.
The key to the interpretive problems in this legal narrative lies in the father's reaction to Rav Papa's ruling. The father is adamantly opposed to having his son evaluated like a slave. His opposition runs so deep that not only is he willing to give up on the compensation owed his son, but he is prepared to pay the damages incurred to his son out of his own pocket. This sense that evaluating the child like a slave was shameful was probably not unique to the child's father. Notions of shame are usually widespread cultural phenomena, not isolated notions unique to one individual. This is especially likely given how strongly the father feels about the shame that his son will incur through this process of evaluation. It is, therefore, probable that the sages in this story also understood that it was shameful for the child to evaluate him like a slave. Rav Papa may command the collection of the four payments other than nezek in order to circumvent the mishnaic law and avoid the shame of an assessment for nezek (however unsuccessful these attempts ultimately prove in the face of the objections of the other sages). Rav Papa is not ignorant of the mishnaic law, nor, as the medieval commentators suggest, is he ignorant of the facts of the case.
It is unclear whether Rav Papa is trying to make a judicial adjustment to the mishnaic law, or if he is only registering a kind of ineffectual protest against it. If he seriously means to adjust the mishnaic law, why does he give in so easily when Rava and Abaye challenge him? Perhaps, then, his statement after the ass has cut off the child's hand—that the child collects the four types of payment for which, according to the Mishnah, the owner of the ass is not liable—is not meant as a legal ruling so much as a gesture of protest by the judge against the law that he ultimately knows he is going to have to implement. This gesture of protest may signal to the child's father that he has the permission of the judge to object to the evaluation of his son as a slave.
Section C also involves a story about an animal, in this case an ox, that harmed a child's hand. In this story, Rava (a fourth-generation Babylonian Amora) gives the instructions to assess the value of the child like a slave. The sages object to this ruling on the grounds that Rava has taught: “Anyone who is assessed like a slave—the payment is not collected in Babylonia.”Footnote 86 Rava explains that the evaluation still needs to be carried out because if the child seizes property on his own initiative from the owner of the ox, so long as the property is of equal or lesser value to what the ox's owner owes the child, the court will approve the child's act of self-help.
The continuation of this sugya, after the section quoted above, extensively discusses this same teaching of Rava's, as reformulated in section D: “Nezek dealt by an ox to an ox or a man to an ox—they collect it in Babylonia. Nezek dealt by a man to a man, or by an ox to a man—it is not collected in Babylonia.” Rava's teaching means that nezek to people is not collected in Babylonia, but nezek to animals is collected. Rava emphasizes that his teaching applies only to Babylonia. The continuation of the sugya reports two other teachings of this kind in Rava's name. Rava is reported to have said that payment for damage done by an ox is not collected in Babylonia and that oxen are not declared mu‘ad (established by testimony to have a tendency to gore) in Babylonia.Footnote 87 If these sayings are all rightly attributed to Rava,Footnote 88 we can conclude that Rava regarded the authority of Babylonian judges as limited in certain respects. The same discussion that contains Rava's teachings also cites the objections of Rav Ḥisda to the collection of monetary penalties (kenasot) in Babylonia.Footnote 89 Thus, it is clear that certain Babylonian rabbis believed that the judicial authority of Babylonian sages was limited. In the context of these teachings, it might appear that Rava's problem with the collection of damages for injuries to people is that Babylonian rabbis do not have sufficient authority to mandate the collection of these damages, rather than the sense that evaluating free people as slaves is shameful, which was expressed by the sages in the first part of this sugya. This impression is furthered by the fact that in the story in section C, we saw that Rava, even though he rules that damages to people are not to be collected in Babylonia, still commands that the child be evaluated like a slave, in case he is able to seize the property of his assailant on his own, as an act of self-help. It would seem that if Rava were bothered by evaluating free people as slaves rather than by the scope of Babylonian judicial authority, he would not have had the child evaluated like a slave at all.
In spite of these reasons to see Rava as concerned with the judicial authority of rabbis in Babylonia, there are good reasons to think that the shame involved in the evaluation of a free person as a slave was, in fact, Rava's central concern. Section D of the text above is the beginning of an extended stammaitic sugya that probes the reasons for Rava's teaching and attempts to integrate statements by various sages about the types of damages that cannot be collected in Babylonia into a single rule that covers all situations. This sugya has a difficult time differentiating conceptually between cases of injury to animals and cases of injury to people in a way that would explain Rava's teaching that Babylonian judges can order the collection of payment for the former, but not for the latter. The stammaitic sugya's first four successive attempts to differentiate between these two types of cases fail. The four stages of this discussion are as follows:
1. אלוהים בעינן וליכא—“We need 'elohim and we do not have them.” The stam's first attempt to explain why Rava prohibited Babylonian rabbis from mandating the collection of compensation for nezek to people is that Babylonian judges are not considered to be 'elohim. According to this explanation, the word 'elohim in Exodus 22:8 teaches that only properly ordained rabbis have the authority to judge the civil cases outlined in the biblical Covenant Code (Exodus 21:1–23:33). This argument is rejected, however, because the case of damage to livestock is also part of the Covenant Code, and thus judges also need to be sufficiently qualified to mandate the collection of payment for nezek to livestock.
2. שליחותייהו קא עבדינן—“We carry out their agency.” Building on the first explanation, this explanation states that while it is true that both damages to oxen and damages to people require qualified judges, in the case of damage to oxen, judges in Babylonia act as agents of the courts in the Land of Israel. This explanation fails because no reason has been given that judges in Babylonia should not act as agents of the courts of the Land of Israel in the case of damage to people.
3. כי קא עבדינן שליחותייהו—במידי דקים לן בגויה—“We carry out their agency only in matters that we are certain about.” The third stage in the discussion explains that judges of Babylonia act as agents of the courts in the Land of Israel only in cases where the judges are certain about the compensation that is owed. This argument fails because the valuation of oxen is no more certain than the valuation of people. The value of each can be assessed in the market with equal ease.
4. כי קא עבדינן שליחותייהו—בממונא, בקנסא לא עבדינן שליחותייהו—“We carry out their agency only in civil cases, but in cases of penalties we do not carry out their agency.” The fourth stage of explanation of Rava's ruling argues that the rabbis of Babylonia are considered agents of the courts of the Land of Israel only in civil cases, but not in cases that involve penalties. However, this explanation is also rejected on the grounds that cases of damage to people are civil cases and the compensation paid is not a penalty (kenas).
Ultimately, the stam is able to explain Rava's ruling on the grounds that in Babylonia the judges only act as agents of the courts in the Land of Israel in cases that both are common and involve monetary loss. The sugya's series of attempts to explain Rava's rulings highlights the difficulties in explaining why judges in Babylonia would be considered sufficiently authoritative to judge cases of damage to livestock, but not damage to people. To understand the reasons for Rava's rulings, we have to look somewhere other than the stammaitic portion of this sugya.
One reason that Rava might permit the collection of compensation for damage to animals but not people is that collecting compensation for injury to people involves valuation as a slave. Rava's language in section C reflects this concern. There he defines the cases that are not judged in Babylonia as those that involve valuation as a slave. If Rava did find valuation as a slave just as distasteful as his contemporaries did (or if he had to respond to ordinary Jews who were opposed to valuation as a slave, just as the child's father in section B was) one way for him to circumvent the Mishnah's ruling would be to say that the law of the Mishnah still applied, but that sages in Babylonia simply did not have the authority to carry out the Mishnah's ruling. Understanding Rava to have been motivated by the desire to circumvent the evaluation of free people as slaves does not mean that we have to dismiss the evidence of all the other cases in which Rava and other sages stated that rabbis in Babylonia cannot judge certain cases. On the contrary, if the scope of the judicial authority of Babylonian rabbis were a real concern, then this would have been a convincing pretext for Rava to use to circumvent the mishnaic law.
The claim that Rava was opposed to the evaluation of free people as slaves still has to address Rava's ruling in the story in section C. There, Rava rules that the child must be evaluated as a slave, but the court cannot enforce its ruling and compensation can only be collected through self-help. This seems to refute the claim that Rava was concerned with the evaluation of free people as slaves rather than with the scope of judicial authority in Babylonia, since the valuation as a slave happens in this story, even though the court cannot order the collection of the damages. It is, however, possible to understand Rava's ruling in an alternate way. In cases of harm to people by other people, Rava forbade only the collection of nezek. The stammaitic sugya seems to conclude that all five categories of payment are not collected in Babylonia,Footnote 90 but there is no reason to understand this as the meaning of Rava's teaching. The formulation of Rava's statement in section C says that Rava taught that we don't collect payments that require the valuation as a slave in Babylonia, while the formulation in section D clearly presents Rava as saying that nezek is not collected, which implies that Rava believed that in cases of personal injury, the other four payments were collected. For this reason, cases of battery could still be judged in Babylonia, even when Rava's teaching was followed. However, Rava's teaching created the problem that the victim was left without judicial recourse in cases where he was attacked by an animal. Against this background, we can understand Rava's ruling that appears in the story in section C as an attempt at a further judicial adjustment to his prior ruling. Rava had already stated that payments that involved valuation as a slave were not collected in Babylonia. Now he needed to adjust that ruling to allow for a legal remedy for people who had been harmed by oxen. Rava may have done just that in this case. Of course, it is also possible that this story was an invention of later rabbis, who needed to adjust Rava's ruling due to these same practical difficulties.Footnote 91
This hypothesis, that Rava's teaching reflects the same discomfort with evaluating free people as slaves that we saw in the earlier part of this sugya is, of course, speculative. Nevertheless, it seems preferable to understand Rava in the context of the first part of the sugya, in which we have teachings from his contemporaries and his near-contemporaries, than to accept the explanations of the stammaitic conclusion of the sugya, which harmonizes disparate sources from different sages on the kinds of judgments not carried out in Babylonia and is not interested in the reasons for this particular ruling of Rava's in its historical context.
On the whole, it seems unlikely that Roman law was a major factor that led to the teachings of these Amoraim. Just as it is difficult to say for sure that there was influence, it is difficult to determine with certainty that there was none. The Babylonian Amoraim lived outside of the Roman Empire and probably did not know much about Roman law. And yet, the comparison with Roman law is quite useful, even if there is no direct relationship between the two legal systems. These few lines in a sugya in the Babylonian Talmud stand practically alone in the rabbinic corpus. The Mishnah knows of no problem with evaluating free people as slaves for the purposes of collecting nezek and neither do the Stammaim who have shaped the end of this sugya. Without some kind of analogue, it is hard to understand what these Amoraim are saying. It is difficult, without Roman law, to realize that there could be a legal culture that was so opposed to evaluating free people as slaves that it avoided this practice in assessing payment for physical injuries and sought to find alternatives. Our knowledge that the Roman legal system worked this way makes it plausible to suggest that certain sages in rabbinic Babylonia also tried to make rabbinic law work without assessing free people as slaves. Otherwise, we would not understand the significance of these Babylonian rabbinic teachings.
Moreover, this comparison with Roman law helps highlight the cultural concerns shaping both legal systems. As we have already seen, honor was a central concern in Roman culture. This concern shaped the Roman law of iniuria, which treated cases of assault as cases of damage to the victim's honor so long as the victim was a free person. Similar emphasis on honor and deference probably existed in Babylonian rabbinic culture during the period of the sages of our sugya. In a series of narratives found in Bavli Kiddushin 32b–33b, fourth- and fifth-generation Babylonian sages become angry when sages of lesser status fail to rise before them at weddings, while Tannaim from Roman Palestine are unconcerned with showing deference to their superiors at a banquet.Footnote 92 This concern with honor and status in Babylonian rabbinic society probably contributed to the discomfort with evaluating free people as though they were slaves.
Comparisons between Roman law and rabbinic law, then, need not be limited to cases where Roman law and rabbinic law existed in overlapping jurisdictions. Comparisons can be useful even in cases where there was little obvious contact between the cultural worlds that are the subjects of the comparison. Comparisons can highlight certain aspects of one culture that we might otherwise miss or not understand as fully and can also throw aspects of one culture into sharper relief.
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The mishnaic category of damages for boshet (humiliation) probably developed under the influence of the Roman laws of iniuria, which gave free Romans an action for damage to their honor when they had been physically assaulted or insulted. The rabbinic move away from the physical penalty of the talion and toward monetary compensation for physical injury was likely also conditioned by the Roman legal environment. The Romans had undergone a similar legal change centuries earlier: The talion law in the fifth-century BCE Twelve Tables had been replaced by monetary compensation for injury. An examination of parallels with Roman law, therefore, casts some light upon the often obscure origins of rabbinic law.
This study also sheds light on the Romanization of the rabbis. We have seen that cultural exchange is not simply a matter of the passive reception of the dominant culture's norms by the minority culture. Roman norms of shame prompted an expansion of the significance of shame in the rabbinic reckoning of damages. But the Mishnah did not simply adopt the Roman law. Instead, the Mishnah adapted and reshaped Roman norms in line with the Torah's discomfort with personal honor. The Mishnah's dominant voice endorses compensation for boshet based on the relative status of the assailant and the victim, but the Mishnah also includes the fixed table of payments for insults and the opinions of R. Akiva, which treat all Jews as equally honorable.
When the rabbis who shaped the rabbinic law, as in the Bavli sugya we examined, were probably unaware of Roman law, comparison can still be useful. The legal narratives in which the rabbis make rulings that contradict the mishnaic law and refuse to enforce (or enforce reluctantly) the collection of payment for nezek require some sort of explanation. Rava's teaching that compensation for injury done to people is not collected in Babylonia was explained poorly by the Talmud's anonymous editors on the grounds that such cases do not crop up frequently. The comparison with Roman law, which in the classical period refused to assess free people as though they were slaves, suggests a possible explanation for both the narratives and Rava's teaching: Babylonian Jews found it shameful for a free person to be evaluated as a slave and the rabbis of Babylonia in the third and fourth generations consequently tried to avoid mandating the evaluation of free persons as slaves. Roman law can thus help us to understand rabbinic law even when we cannot find a direct historical connection between the laws we are comparing.
