Chapter 3: A New Division - Introduction
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CHAPTER 3
A NEW DIVISION TO UNDERSTAND THE RELATIONSHIP
BETWEEN ROMAN AND LOCAL LAW IN THE ARCHIVES
Introduction
In this chapter I will further assess the relationship between the several laws indicated
in the papyri for the period under Nabatean rule and that after the Roman conquest. It
will appear that different ways of referring to the applicable law can be found for both
periods. The division that is at the heart of the distinctions made after the Roman
conquest will be the basis for the case studies in part II of the book.
Chapter 3: A New Division – Order of Presentation
Order of Presentation
I. DETERMINING THE APPLICABLE LAW
Under Nabatean rule
Language and references to law
General-specific
Under Roman rule
Language and references to law
Formal-substantive
II. CONCLUSIONS
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I. DETERMINING THE APPLICABLE LAW
Under Nabatean rule
Language and references to law
Above I noted that I would not only discuss the use of Greek versus Aramaic in the
archives but the use of different types of Aramaic as well. I feel that this is important
because it shows that the use of languages is not conclusive for the applicability of a
certain law. We have seen that P. Yadin 6 may be in Nabatean Aramaic, but could
still refer to Jewish law, while P. Yadin 8 and 9 are virtually the same kind of
contract, one in Nabatean Aramaic, the other in Jewish Aramaic. Consequently, one
cannot link the law used directly to the document’s language. Instead, we have seen
that the reference to law is made by using certain expressions like ‘as is proper,’352 ‘as
is customary’,353 ‘according to the customary manner of working ‘and you shall
till’354 or giving specific arrangements that present a divergence from a general rule
(like the arrangement for the watering period in P. Yadin 3). These references can be
found in Nabatean and Jewish Aramaic contracts alike, contracts made between
Nabateans, Nabatean and Jew, and Jews. The overall picture the documents present is
that there was a general legal framework to which parties could refer, apparently
Nabatean and Jewish parties alike, while divergences were marked by giving specific
rules. This latter conclusion can take us in two different directions. We could assume
that the overall legal framework referred to was Nabatean law (predominant law of
the ruling power in the area), or that the documents do not refer to Nabatean law
specifically, but rather to a more general indigenous tradition or custom.
Nothing in the extant texts proves beyond doubt that they referred specifically to
Nabatean law. In any case, it is not clear what the Nabatean law they referred to
would have encompassed. We cannot know whether Nabatean law resembled Jewish
law or whether there was even a clear distinction between different laws when it came
to conducting business. One might assume that business matters were arranged
according to accepted traditions or customs, recall the kchalikat in P. Yadin 2-3. More
personal matters like family matters (marriage, matters of succession) could then be
expected to be handled in another manner, depending upon the persons involved. I
think the tendency of the Jews to use Jewish Aramaic in their dealings with one
another, could point in the direction of a differentiation between general law and more
specific law. Business matters would then be conducted according to the general (and
generally accepted) law, while more personal matters could be arranged according to
personal law or traditions specific to a certain group. This difference could be behind
the divergence we have seen in P. Yadin 2-3: Shim‘on’s deal with ’Abi-‘adan is the
same as Archelaus’ deal with her, except for some specific rule coming from
Shim‘on’s personal law. This rule is then incorporated into the contract. P. Yadin 8
and 9 provide instances of adherence to general law: business was conducted
according to one set legal framework. This legal framework need not necessarily have
been Nabatean law, but rather a common oriental tradition, which could coincide with
what is called in scholarship the Aramaic common law tradition. This tradition is
taken to explain for the fact that certain clauses in papyri in Nabatean Aramaic closely
352
P. Yadin 2-3.
P. Yadin 2-3, 7.
354
P. Yadin 6.
353
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resemble clauses of the same purport in papyri in Jewish Aramaic.355 Nevertheless,
both types of papyri can make distinctions as to the applicable law for certain
arrangements, thereby adding rules of specific law to a framework of general law.
This shows that different oriental people cooperated with each other in the public field
on the basis of a shared legal framework, by making general references to this
framework (kchalikat) or using clauses of a general nature, while divergences were
specifically described.356
General-specific
A division as outlined above can be seen as having developed over a long period,
more or less as a natural process of shifting the general from the specific, a process of
retaining specific elements for a group while the overall perspective merged. By this
latter remark I mean that the laws of various groups within a population might have
been alike in general respects and thus a common tradition or a mutual framework
could be imagined. On the other hand, specific rules stayed in force within the groups,
distinguishing them from others. The tendency to use a specific language or script
might be an expression of the use of the common tradition (generalization) or of
reference to the own legal framework (specialization). Consequently, the legal context
could be seen as consisting of two parts: a larger general legal context related to the
populace as a whole, and a more specific legal context related to specific groups
within society.
The distinction looks like what Roman law denoted as a distinction between ius
gentium and ius civile. Ius gentium encompassed legal acts common to all nations,
like sales. In Roman legal texts ius gentium is sometimes adduced to explain the
nature of a procedure or the justification of a rule.357 Ius civile, on the other hand,
denoted the specific civil law of one nation; in a Roman legal context this will
obviously be Roman law. The civil law of one nation can have developed specific
rules for an act that is known to all nations in general: sale in its basic form of
exchanging an object for another object or money (part of the ius gentium) is
developed differently in legal systems (civil laws) with regards to, for example, the
act of handing over the object. Consequently, we could assume that the common law
tradition of the area before the conquest served as sort of ius gentium for the populace
there, while divergences were possibly based on the various laws of the different
peoples (the ius civile of a certain group within society).
355
See, for example, Documents II, 226, where a defension clause (a specific clause to protect the
rights of the purchaser or donee) is related to ‘Aramaic common law tradition,’ to explain for the fact
that the clause in P. Yadin 2-3 (sales contract in Nabatean Aramaic) looks a lot like the clause with the
same purport in P. Yadin 7 (gift in Jewish Aramaic).
356
Again I refer to P. Yadin 2-3 where we have seen a reference to a general framework by kchalikat, a
framework that was referred to whether all parties were Nabateans or one of them was a Jew, while a
divergence is given in a specified rule (the water rights found in P. Yadin 3). Comparison between P.
Yadin 2-3 and P. Yadin 7 is fruitful, because the papyri are written in different languages and can
nevertheless refer to applicable law in the same way. This means that the difference in language
between documents need not be conclusive for understanding the applicable law(s).
357
For example Dig. 16,3,31,pr. A person who is charged with a capital offence deposits money with
another. After he is convicted, his assets are forfeited to the state. The question is then raised of to
whom the deposit should be returned. Ius gentium (and natural law) would say that the depositor should
recover the deposit. However, ius civile (and legal order) would say that the state is entitled to it
(because the depositor had been convicted for a capital offence and his punishment should serve to
deter others from wrongdoing).
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The general framework could be called public since it was related to the relationships between the
different groups and thus with society as a whole, while the specific law of a group could be called
private since it was used within a group and served to meet with the needs of this specific group.
Nevertheless, because of the specific connotations of the terms public and private in a legal context, I
will adhere to my terminology of general and specific as used above.
As I have mentioned above, such a division can be expected to have developed over
time. As people lived together within an area and had business dealings with one
another, a common tradition was established, sharing features that systems had in
common, or striving for a form of legal act (for example sale) that incorporated all the
important issues. By the latter remark I mean that a legal tradition can be expected to
develop to incorporate those features that are so essential to a particular legal act that
all systems recognize these features in one way or another. Since these features were
the same in the different laws, it was easier to draw up contracts that resembled these
laws by incorporating what was common to them. In such a case, the question of to
which law a contract referred, in the sense of law as the law of a specific group of
people (Nabatean, Jewish), need not be put. The contract refers to ‘kchalikat’ ‘what is
customary,’ what all parties accept as applicable to this legal act. In cases of
divergence from ‘what is customary,’ this is indicated. This reference to ‘what is
customary’ is a reference to what I designated as ‘general law,’ the law people use in
their dealings with one another, dealings that reach beyond their own group and their
own law. Contrasting with this we find specific law, the law specific to the group,
which is used in contracts that deal with personal matters like marriage and
succession issues. Since the Aramaic documents do not make it clear how disputes
would be settled – for example, in what type of court – we cannot say what the
difference between general and specific law meant in a case of dispute. If we accept
that the Jews could refer to their own law in certain legal acts they made (concerning
marriage and succession matters) we could wonder how a court, a Nabatean court in
all likelihood, would deal with that. The evidence from the papyri suggests that the
starting point for the court would have been the general legal framework, referred to
in contracts with ‘as is proper’ or ‘as is customary,’ while the court would take
divergences from this general framework into account as they were described in the
contracts. This would explain the explicit designation of watering periods in P. Yadin
3 and the extensive arrangements in P. Yadin 7 and 10. Such arrangements served to
explain matters later on. In case of dispute, a court would probably consult the
document for clarification of rights and obligations.358
358
The very fact that documents were drawn up to set legal acts down in writing suggests that these
documents, recording the party agreement, would play a vital part in the settlement of later disputes.
The more explicit a contract is about the parties’ obligations, the easier later dispute settlement
becomes. The explanatory function of the documents can be seen in the instance of the later Greek
papyri, where specific references to law are often given (see P. Yadin 17, 69ff. above) or details are
given about the legal situation behind the act (see P. Yadin 21-22 and 23-24; 94ff. above and 128ff.
below). See nt. 252 above for the notion in Roman law that the specific arrangements in a contract
function as law for the parties involved.
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Under Roman rule
Language and references to law
When the area became part of the Roman Empire the situation changed in the sense
that a gradual development as I have described above was no longer possible. A
distinction between general and specific law as I have outlined above could no longer
work in the same way it had done before. In the period prior to the Roman rule,
general and specific law shared a common background: they were oriental. One could
even say that all specific laws were part of general law in the sense that general law
was a blend of several laws, of features they shared. When people dealt with each
other they referred to this common background of general oriental law. But with
Roman rule, general and specific law as they had stood had now both become specific
law, while the new system – Roman law – was the general one. The later Greek
papyri show that the Roman governor was expected to judge cases, there is no clear
indication that there were other courts. This suggests that jurisdiction was completely
in Roman hands and that the indigenous population had to turn to a Roman court for
dispute settlement.359 This means that the judges came from a different legal
background than the parties who made the contracts. References to ‘as is proper’ or
‘as is customary’ would be pointless: there was no framework the parties and the
court shared. The use of a document like P. Yadin 3 would have been problematic in a
Roman court context. Not only would the language cause problems but the contents of
the arrangements as well. Therefore, the situation after the conquest called for drastic
change. The Roman court had to be able to understand the contracts that were
underlying the disputes. This could explain for the use of Greek in these documents.
However, this begs the question whether the law in the documents had to be Roman
law as well. This seems to be logical: a Roman governor has to know the law
according to which he is judging his cases. But parties need to know the law they are
basing their contracts on just as well. Can provincials be expected to have known the
rules of Roman law, which in many cases diverge significantly from their own well
known laws, and to take those rules into account in their dealings amongst each other?
Obviously this is about as difficult to envisage as envisaging a Roman court judging
according to indigenous law. However, the documents show that provincials took
their cases to a Roman court. Somehow, a new way of dealing with the problem of the
different laws had been found.
What we see in the documents is that references are no longer made to a general legal
framework (‘as is proper,’ ‘as is customary’) but to specific rules or customs:
‘according to the law of deposit’ or ‘in accordance with Greek custom.’360 In other
instances, certain starting points for the legal act are specified in the contract:
Babatha’s right to sell the produce of orchards she does not own or the right of
Judah’s nephews to his inheritance. It seems the documents become more specific in
their description of what is at issue, apparently with the purpose to clarify the legal
context of the act. Nevertheless, it is remarkable that when referring to law the
documents do not usually determine the law with an adjective: ‘in accordance with
Greek custom’ is an exception found in a document otherwise put in a legal
framework by the phrase ‘according to the laws.’ The phrase ‘according to the law of
deposit’ does not say what law of deposit was meant: Jewish, oriental, Greek359
About the possible evidence for the existence of other courts and the ‘obligation’ to turn to a Roman
court see 35-36 above.
360
P. Yadin 17 and 18 respectively. See discussion of P. Yadin 17 above, 69ff. and P. Yadin 18 below,
228ff. Also see overview of references to law in Chapter 2 above, 101-102.
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Hellenistic or Roman? It seems that without a determinative adjective it was clear to
what law these documents refer.
Even a cursory overview of the references to law in the papyri in their context shows
that the documents do not refer to Roman law. For example the position of the widow
referred to in P. Yadin 21-22 and the position of the nephews explained for in P.
Yadin 23-24 do not fit with Roman legal practice. This means that it was in any case
clear that the references to law made in the documents were not references to Roman
law. However, it is equally obvious that the formal situation has been tailored to fit
with Roman legal practice as much as possible. The use of Greek, the appearance of
guardians of women, the inclusion of a stipulatio clause, all of these features clearly
indicate that there was a Roman influence, an influence that seems to get stronger as
time goes on.361 Consequently, the documents present a seemingly contradictory
picture: formally the documents are adjusted (by degrees) to Roman demands, while
internal references, although more specific than before, clearly do not refer to a
Roman legal context.
Formal-substantive
Words like formal, substantial, internal, external and so on can be used in a literal
sense: formal is what sticks on the outside, fundamental and substantial more what
touches upon the heart of the matter, the core of the document. What this difference
expresses though, is something more than just a matter of inner structure and outer
words. After all, we are dealing with judicial documents here. An attempt to
understand their nature and to come to terms with the different elements found within
them should try to unite the different elements by linking them to a judicial kind of
division that enables different systems to play a part in a single act. Such a division is
the division between formal/procedural and substantive law.
Formal or procedural law is that part of the legal system that arranges for the
settlement of disputes. It determines before which court a case should be brought,
what terms should be adhered to, what person can be heard etc. Simply this focus on
formal law can already clarify that much of what is found to be so conspicuously
Roman in the documents is a matter of formal/procedural law. Considering the
exclusive position of the Roman courts in the area, it is not odd that formal law was
directed at the Roman system. However, we can only refer to ‘adherence to Roman
law’ if the arrangements in the documents also show that Roman law was taken into
account. As explained above, this is clearly not the case. The contents refer to another
legal system, which could be called the substantive legal system for the acts. This
means that the parties had the document refer to their own legal background, while
they used Roman formal features to make sure they could gain access to Roman
courts.362 The Roman governor who had to judge the cases could do so by using the
information the documents provided about the law the parties deemed applicable.
There could be several opinions about what the nature of the substantive law might
have been: a general oriental Semitic tradition, more specifically indigenous law of
361
Greek is used from P. Yadin 11 onwards; this papyrus does not give the stipulatio. We find this
clause incorporated from P. Yadin 17 onwards (though not in all documents). Guardians of women
appear in P. Yadin 14 and onwards (though not in all instances where they might be expected).
362
They did not always meet the formal demands of the Roman court, probably because of their
unfamiliarity with the Roman legal system. I have mentioned the absence of a guardian in some cases
above, 25 (for details see Chapter 5 below) . This apparent difficulty in sticking to the formal rules of
Roman law, which were alike in most of the cases, makes it unlikely that the parties sought to adhere to
Roman law substantively in all the different legal acts they made.
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the area (incorporating, for example, Nabatean features) or even more specifically
Jewish law. I believe that in some cases it can be shown it was the latter.363
363
There is not much known about Nabatean law and it would therefore be very difficult, if not plain
impossible, to relate much to that. There is, of course, more known about a general oriental Semitic
tradition: one could use the evidence from other papyri from the region and abroad. Since evidence of
the practices of most ancient eastern laws have been preserved in some form, whether in law codes or
in documentary evidence, it is also possible to investigate developments in a specific area of law during
a certain period or in a certain area. Above, I have already explained that the codification of Jewish law
only a few decades after our documents were written offers an opportunity to search for what became
normative Jewish law, but was still uncodified legal practice at the time of the documents.
Chapter 3: A New Division – II. Conclusions
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II. CONCLUSIONS
The documents of the Babatha and Salome Komaise archives bear testimony to the
development of legal practices in a time of transition. When the Nabatean Kingdom
was transformed into part of the Roman province of Arabia, the legal context the
documents had formally referred to had disappeared. Documents written after the
conquest gradually ceased to refer to a general custom and began to give more explicit
references to law. Nevertheless, in those references, law is usually not qualified by a
determinative adjective. This indicates that there was an understanding of what law
was meant, even though no longer reference was made to ‘as is proper,’ but to
applicable sets of rules, like ‘the law of deposit.’
The references to law in the papyri, which obviously denote what law should be
applied to the arrangements found there, contrast sharply with the distinctly Roman
outer appearance of the documents. Disregarding the references to law and solely
focusing on the Roman flavour of the documents in wording and style, one would
grow to believe the documents were written with a Roman legal context in mind. For
the formal side of things this is obviously true: the appearance of formulas like a
stipulatio clause and the introduction of the guardian for women is clearly related to
the Roman court context in which these documents were (going to be) used.
Nonetheless, it is just as obvious that the documents did not seek to adhere to what
Roman law determined otherwise: when explaining about certain rights or practices
the scribes sought to explain features foreign to Roman law. It can be assumed for the
references to law just mentioned that they also sought to connect with indigenous
rather than Roman law, and indeed this can be shown for a number of cases. This
means that it is no longer necessary to claim the documents are either very Roman or
very indigenous: they are both.
It is precisely the basic legal distinction between formal and substantive law – law
applicable to procedure and to substance – that is the key to understanding the nature
of these documents. Starting from the assumption that formally another picture is
painted than substantively it is clear that the fact that jurisdiction was completely in
Roman hands need not denote that other laws ceased to play a part in legal
documents. Indeed, one can argue that the legal situation did not change on a
substantive level: people kept living according to their own legal practices. The
evidence from the Babatha archive would then fit with the overall picture of the
consequences of Roman dominion for the eastern provinces: despite a discernible
Roman influence, eastern legal practices persisted.364
364
See, for example, the remarks to this point by Wasserstein featured in my discussion of marriage
contracts below, 238-239. In discussing P. Yadin 18 Wasserstein maintains that ‘this environment,
while being continuously and profoundly affected by hellenistic civilization and Roman power, was
tenaciously retentive of Oriental traditions not only in religious law and custom.’
Part II: Case Studies – Introduction
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Part II:
Case studies
Introduction:
In this part I will study three specific themes or issues, devoting a chapter to each
issue. Every chapter has its own conclusions, presented where useful in table form for
quick reference. General conclusions can be found in the concluding chapter of the
book.
Part II: Case Studies – Order of Presentation
115
Order of Presentation
CHAPTER 4
Introduction
Order of Presentation
I. EVIDENCE FOR APPLICABLE LAW OF SUCCESSION IN
THE ARCHIVES
Son
Other children/wife in presence of son
In absence of a son
Order of succession based on documentary evidence
What law determined the order of succession found in
the documents?
II. DISCUSSION OF LEGAL POSITION OF DAUGHTER IN
ANCIENT EASTERN LEGAL SYSTEMS
Egypt
Evidence from legal code and documents
Conclusions
Mesopotamia
Mesopotamian law anterior to Hammurabi’s
Code
Old Babylonian law
Excursus: the daughter-heir in Athenian
law
Assyrian law
a. Old Assyrian
b. Middle Assyrian
c. Neo-Assyrian
Nuzi
Overview in chronological order
Conclusions
Anatolia and the Levant
Hittite Laws
Emar
Alalakh
Ugarit
Overview in chronological order
Conclusions
III. CONCLUSIONS
Overview of combined evidence
Conclusions
Part II: Case Studies – Order of Presentation
116
CHAPTER 5
Introduction
Order of presentation
I. GUARDIANSHIP OF A MINOR
The case of Babatha’s son Jesus
The appointment of the guardians
The court case
Contents and formalities
Excursus: did Babatha win her case?
The case of Judah’s nephews
II. GUARDIANSHIP OF A WOMAN
Evidence pro and contra
Two legal concepts?
Contents and formalities: the case of P. Yadin 27
III. CONCLUSIONS
CHAPTER 6
Introduction
Order of presentation
I. P. YADIN 10: BABATHA’S DOCUMENT: A REAL KETUBBA?
Structure and most important features of P. Yadin 10
The ketubba and its legal implications
Babatha’s sale of the dates
Babatha’s dispute with Besas
Babatha’s dispute with Miryam
Conclusion
II. P. YADIN 18: SHELAMZION’S DOCUMENT: JEWISH VS.
HELLENISTIC
Structure and most important features of P. Yadin 18
An interpretatio hebraica
Rejection of interpretatio hebraica in favor of Hellenistic
influences
How to understand the law behind the document in the light of
the interpretations discussed
Conclusion
III. SK 65: SALOME KOMAISE’S DOCUMENT: AGRAPHOS GAMOS OR
PREMARITAL COHABITATION?
Structure and most important features of SK 65
Premarital cohabitation?
Agraphos gamos
Conclusion: Legal implications of different interpretations
IV. CONCLUSIONS: WHAT MARRIAGE DOCUMENTS CAN SHOW
REGARDING THE DEVELOPMENT OF (JEWISH) LAW