I. Determining the Applicable Law Under Nabataean rule Language and references to law

Usually only the use of Greek as opposed to Aramaic in the archives is studied, and the use of different types of Aramaic in the early docu­ments is recorded, but not discussed. However, exactly the use of these different types of Aramaic can show that the use of languages is not conclusive for the applicability of a certain law, thus calling for caution in assuming this is the case with documents in Aramaic as opposed to documents in Greek.

This latter conclusion can take us in two different directions. We could assume that the overall legal framework referred to was Nabataean law as the predominant law of the ruling power in the area, or that the docu­ments do not refer to Nabataean 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 Nabataean law. In any case, it is not clear what the Naba­taean law they referred to would have encompassed. Nabataean law might have resembled Jewish law and perhaps there was no pronounced distinction between different laws when it came to conducting busi­ness. One might assume that business matters were arranged according to accepted traditions or customs, as referred to by np’hro 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. 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: Shimon's deal with 'Abi-‘adan is the same as Archelaus' deal with her, except for some specific rule coming from Shimon'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 Nabataean law, but rather a common oriental tra­dition, which could coincide with what is called in scholarship the Ara­maic common law tradition. This tradition is for example adduced to explain for the fact that certain clauses in papyri in Nabataean Aramaic closely resemble clauses of the same purport in papyri in Jewish Ara­maic.^[514] 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.

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. Merging then denotes the devel­opment where 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 established. On the other hand, specific rules stayed in force within the groups, distinguishing them from others. 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. lus 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.^[515] 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).

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 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. To put it differently, 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 (Nabataean, Jew­ish), need not be put. The contract refers to ‘what is customary,' what all parties accept as applicable to this legal act. In cases of divergence from ‘what is customary,' this is indicated. As can be seen in Chapter 2, these references are usually more detailed and specific, and considering the legal context this is logical. 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), it needs to be asked how a court, a Nabataean court in all likelihood, would deal with that.

Si convent, ut in deposito et culpa praestetur, rata est conventio: contractus enim legem ex conventione accipiunt. ‘If it is agreed that there is also to be liability for fault with regard to the deposit, the agreement is valid; for contracts take their law (i.e. applicable rules) from the agreement.'

I deviate from the translation of Watson, who translated: ‘For the prin­ciple underlying contracts is agreement.' The word translated by Watson with ‘principle'—legem (lex)—clearly means ‘law,' ‘the applicable rules.' Precisely that fact makes the passage so interesting, since it actually says that contracts take their law, the rules applicable to them, from the agree­ment.

In the light of this study this would explain why the arrangements that deviate from general law are described more specifically: what the parties decide in their contract—and what kind of legal background they refer to—will serve as the applicable framework for their deal. This also means that the contract will serve as the basis for judgement in case of legal dispute, i.e. that the judge will try to extract the applicable rules from that contract. This argument is important for understanding the issues of law behind the documents as Roman rule was established in the area.

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 of merging laws and establish­ment of a common law tradition, as described above, was not possible. A distinction between general and specific law as 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.^{[517] [518] 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 diverged 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.'^[519] 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.^[520] It seems that 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.'^[521] The phrase ‘according to the law of deposit' does not say what law of deposit was meant: Jewish, oriental, Greek-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.^[522] Con­sequently, the documents present a seemingly contradictory picture: at face value 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

In the contributions to Law in the Documents of the Judaean Desert it is concluded repeatedly that the Greek documents do not reflect anything that is contrary to halacha. Still, as pointed out in the General Introduc­tion, the conclusion drawn by Safrai as to the general legal context of the archives is that the Greek documents ‘reflect a legal practice different from that manifest in the Jewish sources,' a view represented by the edi­tors as stating that the Greek documents ‘are drawn up in a legal uni­verse very different from that of the rabbis.'^[523] No explanation is offered for these statements. The conclusion seems to be prompted by the very fact that the Greek documents despite their contents deviate from the Ara­maic ones in their style. However, one can hardly argue that the Greek documents reflect another legal practice as contents does not deviate. What is meant with legal practice then?

To solve this problem one should accept that there is not necessarily one legal culture or law applicable to a document. On the contrary, in fact each and every legal document consists of two levels. The reason that we are usually not conscious of that is that the two levels can relate to the same law. When this happens they seem to blend and no longer present themselves to us as two levels. However, where they do not relate to the same law, we stumble on the problem as articulated in Law in the Documents of the Judaean Desert: we are faced with signals from the texts that point us in two alternative directions, find clues to the applica­bility of several laws that seem to be ultimately incompatible. However, they are not really incompatible as both laws referred to can play their part on different levels in the text. Accepting these levels actually means accepting the basic structure of each and every legal act. The division that has to be made here 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. Substantive law on the other hand determines the contents of the legal act. Substantive law determines things like order of succes­sion or eligibility for a certain function.

That this distinction has been completely ignored can already be seen in Bowersock’s remark about the subjection of the conquered territory to Roman law. His examples do not distinguish between substantive and formal law, prompting the incorrect (or in any case inaccurate) conclu­sion that the area was subjected to Roman law. Goodman’s contradiction of this did not distinguish between formal and substantive law either. Although he observes that ‘a variety of legal systems continued in opera­tion in the realm of private law,’ he does not clarify this statement.^[524] As discussed above, his examples of what he considers an influence of other legal systems than Roman law are not well chosen. It is also unclear what he means by ‘private law.’ The term appeared before in Goodman’s remarks on the use of coinage and measurements from the pre-Roman era, where he concludes that the Romans ‘elected not to interfere, just as they permitted local custom to prevail in private law.’^[525] It seems logi­cal to understand ‘private’ as opposed to public: where private matters (as contrasted to public, i.e. state, affairs) were at issue, local custom prevailed. This assumption functions as long as one envisages Romans on the public level and locals on the private level, each to their own, but problems occur when both levels intersect: what if a local wants to sue another local before the Roman governor?

Goodman touches upon this matter in discussing what he calls ‘the general adoption by locals of distinctively Roman (rather than Greek) customs and words.'^[526] As an example he names ‘Babatha's attempt to use Roman law in order satisfactorily to settle the conditions of her ‘orphan' son by her first marriage.' Evidence for this attempt is accord­ing to Goodman provided by ‘her possession of three copies of a Greek version, slightly emended, of the praetor's formula about guardianship found in Gaius, Institutes 4.47 (P.Yadin 28-30).'^[527] Goodman conse­quently observes:

The governor faced by a local Jewish woman brandishing the praetor's edict could find himself facing the same woman soon afterwards demand­ing adjucation between herself and a fellow widow over the property of her deceased bigamous husband (P.Yadin 26). For such a problem nothing in the tomes of Roman law would prepare him...^[528]

However, one can wonder whether this would really have been a prob­lem for a governor. First of all, Goodman does not distinguish between formal and substantive law in the detected attempt of Babatha ‘to use Roman law.' Obviously, the use of a formula is nothing but the use of formal law, to be regarded independently of the contents of the case. The references to law as investigated in Chapter 2 make it clear that the parties referred to local law in their legal acts as the law applicable to the substantive side of their cases. If a case of bigamy had been at hand, the governor might very well have accepted the situation if it was allowed in local law. In this context Goodman's observation is relevant that the gov­ernor probably ‘relied on the advice of local experts.'^[529] Indeed, one does not even need the dubious example of P.Yadin 26 as referring to bigamy to conclude that the governor would be confronted with cases where local law was at the heart of the matter. I only refer to P.Yadin 21-22 where Babatha bases her right to sell on rights granted to her in local law and P.Yadin 23-24 where the position of the nephews as Judah's heirs is based on an order of succession of oriental origin.^[530] In those instances no one doubts that any ensuing suits would be dealt with by the Roman governor, which means he would then indeed be confronted with cases based on rights not granted by Roman law. Unless one wants to assume that people mistakingly believed that their own law would be taken into account and that the pronounced references to the applicable law in the legal acts were completely irrelevant when it came to a court case, the conclusion has to be that the governor took local law into account to judge the substantive side of cases. This is not at odds with the find of the actio tutelae in the archive, as this formula sees to the formal side of the suit.

The difference between substantive and formal law can help to clear up priorly posed confused arguments concerning the applicable law in the papyri from the archives. The examples of Bowersock and Goodman given above are by no means the only ones in which a general term ‘Roman law' is used without indicating what the term covers: substan­tive law, formal law or both. For example:

Without coercion or attempts to impose uniformity, the very presence of the Romans as the supreme authority in the province invited appeals to their authority, to their courts as well as to their laws.^[531]

The juxtaposition with courts here suggests that laws should be under­stood as referring to substantive law. In the article from which the quote is taken Cotton assumes that Babatha was not guardian of her son, because Roman law barred women from the exercise of guardianship. Such a rule, determining who could (not) be guardian, is a rule of sub­stantive law, and therefore it can be deduced that Cotton accepts that a rule of substantive Roman law applied to Babatha's case. Accepting adherence to Roman substantive law on the basis of adduced evidence to such adherence in a papyrus is acceptable. However, I do not see how a single instance allows for a general observation, especially as many papyri (in particular the Aramaic ones) had never been surveyed with specific regard to references to the applicable law in the papyrus text. This means that no firm conclusions could be drawn as to applicability of Roman law to these acts.

Nevertheless, after an enumeration of features that point at Roman­ization Cotton states that

all this implies of course that non-citizens had recourse to Roman courts of law and Roman law long before 212, and that this does not seem to have required the grant of a special privilege.^[532]

Again ‘courts of law' and ‘law' are mentioned as separate entities, but without explaining what is meant exactly. Again, one has to derive from the context that substantive Roman law is included: in her preceding enumeration of features in Greek documents that point at Romaniza­tion, Cotton mentions ‘legal arguments in the documents,' referring to her article on guardianship of Babatha's son Jesus and to two articles by Tiziana Chiusi, who also understands part of the dealings in the guard­ianship matters of P.Yadin 12-15 to be inspired by arrangements found in Roman substantive law.^[533]

Understood as incorporating substantive law, however, the quote seems at odds with the next observation: ‘I am not sure one should infer from the language of the documents the legal system to be applied by the envisioned court.'^[534] If Cotton argues that Greek documents are meant for Roman courts, but she is not sure that the language indicates ‘the legal system to be applied by the envisioned court' this implies that in a Roman court context another legal system than the Roman could be applied. In that case, however, one wonders how to understand Cotton's preceding bold assertion as to the ‘recourse to Roman law.' This can then only be taken to mean ‘Roman formal law.' Taken in that sense, however, the link with citizenship and 212 becomes unclear: if the local popula­tion does not have to adhere to Roman substantive law, but only has to meet with the formal demands of the Roman court, this would hardly have required a special privilege, especially not if one assumes that the Roman court was the only court with jurisdiction in the area.^[535]

Cotton's list of features of Romanization contains features that pertain to formal law and features that pertain to substantive law,—and even features that I would claim fit neither of the two categories—, without Cotton indicating anything of that nature. Still, all of these features are heaped together to present evidence as to the suggestion that non-citi­zens had access to Roman jurisdiction and Roman law.

A complicating factor here is the difference in meaning between the word formal used in a papyrological and in a legal sense. Cotton distin­guishes between “diplomatics,” external features of the documents, and contents or legal formulae in the documents. Both should be studied side by side to understand the true nature of the documents.^[536] I would agree with this, as of course all evidence should be taken into account in determining the legal background of these papyri. However, the dis­tinction between “diplomatics” and legal formulae does not amount to the distinction between formal and substantive law, as can be seen from Cotton's treatment: certain aspects of the documents are classified as “diplomatics,” but they are not all features of formal law.^[537] Likewise, some features are not dealt with, because they are not matters of “diplo­matics,” while they are matters of formal law.^[538]

Most importantly, “diplomatics” and legal formulae do not relate to each other as substantive and formal law do. Cotton states that:

the diplomatics of ancient documents can often give us important clues about the legal system (or systems) in operation in the documents themselves.^[539]

Diplomatics are here adduced as indicative of the legal system(s) used in the documents. I find this assumption difficult to maintain, even within Cotton's own framework of what is considered diplomatics and what is considered legal formulae. Cotton identifies the double document structure and the use of Greek as diplomatics pointing at Romaniza­tion.^[540] But certainly this cannot mean that in a papyrus in which those features are present Roman law is in operation? On the contrary, I am inclined to believe that what the diplomatics tell us is often not repre­sentative for what is really at issue in the legal act, i.e. for the law behind the documents.

A judicial division between features of formal law and of substan­tive law has the immediate advantage that formal features are not nec­essarily directly related to (and consequently, not always indicative of) the substantive law applicable to the document. Furthermore, by using this division for the documents one can actually combine several appli­cable laws within the context of one document, which obviously would accommodate the observations made by various scholars that the Greek documents do and at the same time do not deviate from the Aramaic ones. A solution for this discrepancy cannot be found, as long as one keeps thinking in terms of diplomatics and legal formulae, and accept­ing the one as indicative of the other.

This means that the notions of external and internal evidence as used by papyrologists (and historians) should be put aside in order to work with the distinction between formal and substantive law as proposed here. In each individual document two levels should be discerned: one of substantive law, one of formal law. The law that is applicable to the first level can be discerned by looking at the references to law as given in the documents' texts. As shown in Chapter 2, these references are directed at local law. The law applicable on a formal level should be determined by looking at features of formal law in the documents. Here there can be an overlap with features that papyrologists call formal, but there are also features of formal law that papyrologists would group under contents rather than form (like the stipulatio and the actio tutelae). Considering the exclusive position of the Roman courts in the area, it is not odd that formal law is found to be directed at the Roman system. However, it cannot be maintained that the documents show subjection to Roman law in general, as contents is directed at local law.

This two-level approach can help to assess the exact relationship between several laws that play a part in these documents. What is more, the pattern discernible in the two levels, substantively maintenance of local law and formally adjustment to the system of the court, indicates that the possible conflict of laws was acknowledged and dealt with, in a consistent manner. This goes against older views that the situation in the east amounted to a mix of elements that cannot be distinguished from one another. It also shows that conflict of law was not a theoreti­cal concept, but a matter of practical importance, dealt with in a way that ensured clarity and workability for all parties involved. Indeed, this two-level approach is found in modern-day private international law as well, as an important strategy of dealing with conflict of laws. The dis­covery that this same strategy was employed in the second century CE is truly remarkable, as it goes against existing views, as for instance positioned by Wolff, that there was no equality of legal systems under Roman rule and (consequently) no consistent dealing with conflict of laws in antiquity.^[541]

Wolff did not take the material from the archives into account, but he did pose his argument for non-equality of legal systems in a Roman con­text like a universally applicable truth: this non-equality was his reason for excluding the Reichsrecht-Volksrecht questions from his treatment of ‘Konkurrenz der Rechtsordnungen.'^[542] That Jewish law was a law co­equal to Roman law (and not some tolerated custom) is proven by the references to law in the papyri as discussed above in Chapter 2.

In another publication Wolff did argue that some sort of principle should be behind the way in which the Romans dealt with the legal situ­ation in the provinces, speaking of

ein Versuch, das Prinzip herauszuarbeiten, nach welchem die Romer den Einheimischen das eine Mal den Gebrauch der griechischen Amtssprache und die Beachtung romischer Formen und Grundsätze aufnotigten, mochten diese mit den den Provinzialen vertrauten übereinstimmen oder nicht, das andere Mal, wie es scheint, der Bevolkerung die Freiheit liessen, ihre Rechtsverhältnisse in den eigenen Sprachen und nach altgewohnter Weise zu regeln.^[543]

Wolff argued that the main concern for the Romans in deciding whether to demand adherence to their law or not was politically motivated: they sought to consolidate their dominance in the region. Consequently, it mattered little to them whether the indigenous population maintained their own personal law in matters of for example marriage.^[544] Wolff concluded with his idea that local law was tolerated on a case to case basis by the Roman authorities who were not bound to follow local law, but rather voluntarily decided to do so.^[545] This argument is based on a number of presumptions that cannot be maintained in light of the evi­dence from the archives as presented in this study. Wolff differentiates between acts in Greek which take Roman forms into account and acts in the indigenous languages which adhere to local law. This suggests a relationship between language and law. As shown above, in Chapters 1 and 2, the Greek acts also adhere to local law substantively. Second, tolerance of local law cannot have been a matter outside the scope of Roman official power, whether judicial or administrative, as there would always come a moment of intersection: an act drawn up according to local law arriving at an archive or being adduced in a lawsuit before the Roman governor. Consequently, there had to be a consistent practice of dealing with acts drawn up according to local law. This in itself discards the possibility of random, case to case assessment of such acts. What is more, Wolff's idea that the Roman authorities were not bound to apply the law indicated in the acts finds no support in the documents: on the contrary, the clear references to law and the emphasis on the applicable law (as in P.Yadin 17) or the explanation of legal positions (as in P.Yadin 21-22 and 24) suggests that the Roman judge would indeed consult those references and explanations in judging the case based on the legal acts brought before him.^[546] Therefore, the evidence in the documents themselves shows that there was a binding principle that determined how cases were dealt with by a Roman judge in a provincial setting, a principle that accepted the applicability of local law to the substantive side of the cases, thereby also accepting local law as binding law and not as mere tolerated custom.