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 Nabataean Kingdom was transformed into part of the Roman prov­ince of Arabia, the legal context the documents had formally referred to had disappeared.

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: Lewis already noted that the appearance of formulas like a stipulatio clause and the introduction of the guardian for women should be considered as a Roman influence, related to the Roman court context in which these documents were (going to be) used. Nonetheless, closer scrutiny of what these docu­ments determine regarding the applicable law shows 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, as can be seen for example in P.Yadin 21­22 and 23-24. As references to law like ‘the law of deposit' are studied within the context of several possibly applicable legal systems it can be proven that they seek to connect not with Roman, but with indigenous law.

The key to understanding the nature of these documents should be sought in the basic legal distinction between formal and substantive law—law applicable to procedure and to substance. Previous assess­ments of the legal situation have failed to make this distinction and consequently remained vague, for example Goodman's observation that several laws kept playing a part without indicating what part, or the con­tributions to Law in the Documents of the Judaean Desert, registering something like different legal backgrounds for Aramaic and Greek acts without indicating how these relate to each other. The formal-substan­tive division shows that several applicable laws played a part on different levels in the papyrus, allowing several laws to play a part in one and the same document. This means that what has been observed as a marked difference between Aramaic and Greek acts, is in fact nothing but a for­mal matter, which does not effect the substance of the legal acts. There­fore the situation is not one of different legal backgrounds at all. Instead of dividing the papyri into two groups based on language, there is one continuous underlying whole of local law in both the Aramaic and the Greek documents cloaked in different formal guises. This two-level approach will be the basis for the case studies in part II of the book.

Not only does this distinction between substantive and formal law fit better with the evidence provided by the papyri themselves than older language-based divisions do, but the division also opens up the possibil­ity of studying the documents in the context of a policy or strategy to determine the applicable law. By allowing documents to be drawn up according to indigenous law, with clear indications in the documents' text of what this law implied, while at the same time maintaining adher­ence to Roman formal law, that is, the demands for the procedure in front of the Roman court, the Romans ensured that both parties and judge stood on solid ground where their part in the legal proceedings was concerned. A division between substantive and formal law is still an important strategy of dealing with several applicable laws in modern- day private international law. The discovery that this same strategy was employed in the second century CE obviously calls for reassessment of the generally accepted view that in antiquity there were no consistent ways of dealing with conflict of law.