GENERAL INTRODUCTIO

The general introduction will introduce the texts of two multilingual family archives that are the primary sources of information in this study for law and legal proceedings in the second-century Roman province of Arabia, and present a cursory overview of the most conspicuous legal aspects that testify to both continuity and change at the transition from Nabataean kingdom to Roman province of Arabia.

The second part of the General Introduction will explain the treat­ment of the documents in this context, dealing with matters of termi­nology, method, sources and legal detailing.

The archives

The Babatha archive

In the early sixties of the twentieth century, an expedition, organized by the Israel Exploration Society and led by Yigael Yadin, explored a cave north of a wadi called Nahal Hever, situated on the western shore of the Dead Sea. In this three-chambered cave, skeletons and artefacts, and letters sent by Bar Kokhba, the leader of the famous Jewish revolt of the second century CE, were discovered. The second year of the expedi­tion brought to light another extraordinary find. I quote from Yadin's report:

In one of the water skins a large collection of balls of flax thread and a well packed parcel were found.

An archive is a set of documents, belonging to one family and often, for convenience's sake, named after one person, who either features in the majority of the documents or to whom most other persons men­tioned are somehow related. In our case this is Babatha, the daughter of Simeon.^[2] Because the papyri were found in the original wrapping in

which they were hidden, it can be assumed the archive is complete.^[3] It contains thirty-five documents, covering some thirty years, from 97-132 CE. All the documents record legal acts of various types, like sale, loan, deposit, gift and marriage contract.^[4] That these documents were of great importance for the parties concerned is evident from the fact that they were carefully stacked together and wrapped for protection. They were probably hidden in the cave when the persons concerned fled the vio­lence of the Bar Kokhba revolt. It is assumed that Babatha and her fam­ily died in this revolt, and Yadin even believed that one of the skeletons in the cave must have been Babathas; ‘an assumption which, while likely enough, can of course, in the nature of the case, not be proved.'^[5] Were that the case, then Babatha must have hidden in the cave and perished in an attempt to escape approaching Roman soldiers. Assuming, however, that she did not hide in the cave herself, but merely hid her documents there for safekeeping, she probably meant to retrieve the documents ‘at a later, happier time. She obviously did not live to see that happier time, and her precious papers lay for more than 1,800 years just where she had hidden them so carefully.'^[6]

Babatha and her family

The 35 papyri of the Babatha archive were labeled P.Yadin 1-35.^[7] A number of them were found to be written in Aramaic; a greater number, mainly of the later papyri, were in Greek.^[8] The complete Greek papyri were published in 1989, the Aramaic papyri in 2002, in an edition com­prising more Aramaic, Nabataean and Hebrew texts than those from the Babatha archive alone.^[9] Of the Greek papyri, P.Yadin 31-35 present documents in such a fragmentary state that no real sense can be made of their contents.

Babatha, daughter of Simeon the son of Menachem, was first married to Jesus son of Jesus, and their son was named Jesus as well.^[12] After the death of her husband, Babatha had a dispute with the guardians of the child, which is documented in several of the documents. It appears that Babatha disagreed with the amount of maintenance money the guard­ians paid her for raising the child.^[13] In one of the documents connected with this dispute, the child is specifically described as ‘a Jew,'^[14] which supports the inference already drawn from the names found in the doc­uments that the archive belonged to a Jewish family.

Babatha eventually remarried with Judah, son of Eleazar Khthou- sion; their marriage contract is recorded in one of the documents.^[15] Judah also acted as her guardian when Babatha made a land declara­tion: a declaration of the property she owned for the Roman census of 127 CE.^[16] Judah had been married before and had one daughter from that marriage, Shelamzion.^[17] This Shelamzion appears in several docu­ments, recording her marriage to a Judah Cimber, a gift to her by her father and the settlement of a dispute about a piece of property with her father's heirs.^[18] In this latter instance it becomes clear that Judah had died. His death seems to have caused a lot of legal complications as not only Shelamzion was embroiled in a dispute about Judah's inheritance, but Babatha too. Two documents indicate that Babatha sold dates from orchards belonging to her deceased husband, basing herself on claims she had to his estate.^[19] Three documents record legal procedures in the advent of a lawsuit between Babatha and the guardian of Judah's minor nephews, over property this guardian claims belongs to the nephews.^[20] Another document records a dispute between Babatha and Judah's first wife Miryam (probably the mother of his daughter Shelamzion), con­cerning parts of Judah's property Miryam is holding.^[21] Whether that dis­pute implies Judah had divorced Miryam or that he had entered into a bigamous match with Babatha is not clear.^[22]

While this information about Babatha's own acts, her marriage to her second husband Judah and the consequences of his death can be gleaned from the archive's Greek documents, the Aramaic ones concern Babatha's family and the family of her first husband, Jesus.

The relatively large number of documents in the archive dealing with the affairs of a single family, yet covering a range of topics, enables us to get a good impression of many aspects of life at the time concerned. The fact that the documents were written in a period of change—the Nabataean Kingdom became part of the Roman province of Arabia in 106 CE—raises expectations for improving our understanding of the effects of provincialization and in particular the possible influence of Roman law on legal dealings in a province. As in most of the documents women are the main actors, important information can be gathered about the position of women at the time and possible changes in this position under Roman rule. I refer here, for example, to the well-known fact that in Roman law women needed a guardian to make legally valid acts, while this procedure was not known in oriental law.^[28] The archive presents us with documents involving female parties from before and after the conquest, enabling an assessment of a possible direct influence of the Roman demand for guardianship of women on documents drawn up in a province.^[29]

The Salome Komaise archive

Although the Babatha archive on its own presents perfect material for a study of the relationship between local and Roman law in the time and place concerned, the information found there can actually be compared to another archive centering on a woman, dating to the same time and found in the same region.

The Salome Komaise archive consists of six to eight papyri (that have been identified as belonging to it) and is therefore much smaller than the Babatha archive.^[38] The time period it spans is (almost as a consequence) shorter: from January 125 to August 131. Six of the eight papyri are in Greek, two are in Aramaic. Contrary to what was found in the Babatha archive, the second Aramaic papyrus of the Salome Komaise archive is the last in time (dated to 131).^[39] It is a tax receipt that closely resem­bles a Greek receipt from the same archive.^[40] The other papyri include redemption of a writ of seizure,^[41] a sale, two (parts of) land declarations, a dispute settlement, a gift and the marriage contract mentioned above.^[42] As this enumeration immediately reveals, the same legal acts are repre­sented as in the Babatha archive.

Salome Komaise and her family

Like the documents in the Babatha archive, the papyri from the Salome Komaise archive provide a picture of her family.^[48] Both Salome's father and brother died during the period the archive covers.^[49] Salome settled a dispute with her mother concerning the men's inheritance.^[50] 'This mother made a gift to Salome in another document. The gift could be related to either a marriage of the mother or of the daughter.^[51] The marriage contract mentioned above concerned Salome's marriage to her second husband. This means that her first husband also died.^[52]

Legal implications of the documents

Women’s archives

In a brief sketch of the Babatha find it was remarked that women's archives differ substantially from those of men.^[53] Examples comparing the archives of Babatha and Salome Komaise to three archives from men found in Nahal Hever and Wadi Murabba‘at show that men's archives mostly contain documents pertaining to business (military and admin­istrative correspondence, leases) and those of women more personal documents, like marriage contracts, renunciations of claims and deeds of gift. These documents are ‘more personal' since they often reveal personal details about the woman's life. A marriage contract obviously reveals that the woman concerned was married, but it can also tell us something about the wealth of the family.^[54] Similarly, a deed of gift can reveal the relationship between family members, as in P.Yadin 7, where Babatha's father provides his wife with a gift including a lodg­ing arrangement for their daughter Babatha in case she should be wid­owed. This latter arrangement shows that Babatha was married at the time. Her marriage contract to Judah the son of Eleazar is damaged in the lines that should provide the date, but comparison with the data from other papyri shows that she must have been married and widowed before she married Judah.^[55] From Judah on the other hand we learn that he had a daughter from a prior marriage.^[56] His first wife was still alive at his death and goes into a dispute with Babatha about property. Whether their dispute meant they were both married to Judah at the time of his death, or that the first marriage had ended in divorce, is not clear.

That women's archives yield more personal information than men's is due to the simple fact that documents on personal matters like mar­riage, gift within a family and so on, were usually drawn up in favor of women and were therefore kept in their archives. With a man's archive, the possibility remains that he may have been married and may have provided gifts to his wife or daughter, but evidence for these facts will not be found in his archive. This means that both types of archive pro­vide their own kind of information, men's archives focusing on military and economic matters, women's archives on family related matters.

While the documents were in all cases important—the very idea behind retaining a written document is of course in its value in later disputes or suits—it can be concluded that for a woman, documents had an added value related to their nature. Marriage contracts, deeds of gift and comparable documents ensured the women of rights they might have to claim many years after the event. The importance of the docu­ments seems to have been on the women's minds when they had their documents stored, because Yadin noted in his report that:

Some of the documents not found in batches were wrapped, each one sep­arately, in sacking. These documents were of special interest to the women of the family and had been wrapped up in this way to enable them to have them for their personal keeping.... [7] is a deed of gift whereby Babatha's father made over all of his property to her mother; [10] is the ketubbah of Babatha's second marriage; and [18] is the marriage deed of Shelamzion [Babatha's stepdaughter].^[57]

Due to the personal character of the evidence in the documents, our knowledge of the position of women in the area at the time is greatly improved, as can be seen in overviews on these points, for example, in several entries in the Encyclopedia of the Dead Sea Scrolls.^[58] These publica-

tions draw heavily on the documents to provide essential information on property rights for women, their participation in business (for example in sales), marriage (remarriage, divorce and indications for polygamy), and guardianship (of their children or of themselves). This information can be understood as being of social-historical importance, shedding further light on the position of women in ancient society, but it also has legal implications. The way in which women are represented as capable or incapable of doing certain things might give an indication of the legal system or law applicable in the acts. Judicial documents in which one of the parties is a woman reveal more about the law behind the documents than documents do in which all parties are male. Therefore, archives like the Babatha and Salome Komaise archives are especially suited to study the legal system(s) or law(s) used in the documents. The fact that women held another legal position to men required further arrange­ments in the documents and exactly these arrangements can show what law was behind the documents. I refer to, for example, law of succes­sion that, when succession is all male, required different arrangements to have women share in the family estate.^[59] Had the archives found not been women's archives, much of the evidence to be used in a discussion of the legal system(s) found in the documents would not be available.

Continuity and change: obtemperare legibus nostris Traianus conpulit imperator?

The period the Babatha archive covers, from 97 to 132 CE, was a period of change. The area where the parties lived was first part of the Nabataean kingdom, after 106 CE part of the Roman province of Arabia. This raises the question of whether this change left its mark in the docu­ments. At first glance the answer should be affirmative as the language used changes from Aramaic to Greek. This is particularly interesting as the documents reveal that the parties concerned did not know Greek. A scribe wrote the documents for them and when party subscriptions were added, they were made in Aramaic.^[60] It is even explained in one of the documents that Babatha herself was illiterate, which means she did not even know how to write Aramaic.^[61] Therefore, the question can be raised as to why the change to Greek occurred, why people began to use Greek, a foreign language, for their documents. It seems logical to relate this to the Roman conquest: the Romans used Greek as the lingua franca in the eastern parts of their empire.^[62]

More features have been identified that point at a Roman influence: the use of consular dating (even in Aramaic documents from after the conquest),^[63] the reference to parts of the Roman administration (like the city council of Petra or the prefect who signed census declarations)^[64] and the use of typical Roman phrases like ‘the most blessed days of...'^[65] The documents related to suits indicate that these were brought to the court of the Roman provincial governor.^[66] There are no indications that there were any other (local) courts:

The absence of any reference to Jewish courts or local officials who might have settled financial disputes between Jews is striking. Indeed, Jewish institutions are not mentioned anywhere in the Babatha archive.^[67]

Jurisdiction seems to have passed exclusively to the Roman rulers, and the legal documents seem to function within a Roman administrative and judicial framework.^[68] Bowersock observed:

Perhaps the most striking feature of the evidence is the thoroughly Roman character of the law which is being applied in this frontier territory of Semitic and Hellenic traditions. The designation of guardians for the son of Babatha was made by the boule of Petra in the form of a datio tutoris, and one of Babatha's documents provides two copies of a Greek text of the Roman formula of actio tutelae. The litigation of Babatha under Roman law, in Greek translation but in a Semitic environment, provides new and vivid support for what had once seemed a simple periphrasis for annexa­tion in the text of Ammianus. Writing of the creation of the province of Arabia, that fourth-century historian who came from Syria-Antioch and should therefore have known, wrote obtemperare legibus nostris Traianus conpulit imperator.^[69]

However, the question is how we should interpret this subjection to Roman laws. In speaking of ‘the thoroughly Roman character of the law which is being applied in this frontier territory of Semitic and Hellenic traditions' Bowersock does not specify by whom this law was applied. His example of ‘designation of guardians for the son of Babatha... in the form of a datio tutoris’ sees to application of Roman law by an official body that is part of the Roman administration. The second example, the presence of the actio tutelae in Babatha's archive, shows that the actio tutelae was considered important for one of her cases, but as Norr sug­gested, it seems likely that an official body within the Roman adminis­tration provided the actio tutelae to fit the case.^[70] This means that neither example shows that Roman law applied to the legal acts that parties drew up between them.^[71]

Other features of the documents should be understood as equally ambiguous. The majority of the documents from the archives consist of so-called double documents, documents in which the same text is written twice. The upper version was rolled up and sealed to make sure no changes could be made in the text, while the lower version was left open for reference. Consequently, the versions can also be designated as either inner or outer versions.^[72]

In some documents, the inner version is represented by just one line, while for the text itself reference is made to the outer version. This seems odd because the inner version served as the concealed, i.e. authentic, version. It appears that those cases concern documents that refer back to originals kept by the authorities: P.Yadin 12 is a copy of an appointment of guardianship and P.Yadin 16 a copy of a land declaration. As Lewis understood it, the original document kept by the authorities would serve as proof in case of a dispute.^[73] Indeed, as Lewis pointed out, in Ptolemaic Egypt, where it had become customary to deposit documents in archives, the practice of using double documents had fallen into desuetude, implying that having a document archived replaced the part the inner version originally played. The only double documents found in Egypt after 30 CE come from Roman military circles and testify to ‘the continued use of the Roman diploma form by Roman citizens and mili­tary in all parts of the empire.'^[74] Consequently, the appearance of double documents in the archives could be associated with a Roman influence. However, it is clear that the double document structure was already in use before the Roman conquest: Nabataean Aramaic documents like P.Starcky (= P.Yadin 36 = P.Hever 1; of 58-67 CE)^[75] and P.Yadin 2 and 3 (of 97 CE) are double documents. The practice was continued in the Jewish Aramaic P.Yadin 7 (of 120 CE) and eventually also in the Greek documents. Consequently, as Cotton observed, the double document structure is a remnant of Nabataean scribal practice, testifying to conti­nuity rather than change.^[76]

Furthermore, the Greek documents contain Aramaic subscriptions, and even the Greek of the documents can be said to be influenced by the local language: there are a number of conspicuous Semitisms. Lewis observed that

the pervasiveness of the Semitisms comes as something of a surprise, since it is in such sharp contrast with the resistance to the intrusion of native elements manifested in the Greek papyri from Hellenistic and Roman Egypt.^[77]

Sometimes, one wonders whether the scribes writing in Greek did not work from an Aramaic original: indeed, in the edition of the Salome Komaise archive Cotton reconstructed an Aramaic ‘Urtext' for P.Hever 64, a deed in very poor Greek.^[78] As she showed, the Greek deed resem­bles P.Yadin 7, an Aramaic deed of gift, to a great extent.^[79]

Indigenous custom was clearly maintained, as there is reference to ‘a pre-Roman coinage system' and local measurements are used for land size, even in the context of a Roman administrative affair like the census registration.^[80] The Romans ‘evidently elected not to interfere.'^[81]

Where the coins or measurements used did not influence the sub­stance of the legal act, the case of P.Hever 64 is more disturbing. When a deed of gift drawn up under Roman rule results in substantially the same thing as a deed of gift drawn up before Roman rule, this seems to indicate that the legal framework had not changed. Goodman observed that the Romans ‘permitted local custom to prevail in private law'^[82] and concluded, consequently, that

the documents, now that they are fully published, do not seem to bear out the claim based on them by Bowersock, Roman Arabia, 79, that ‘in the most literal sense Trajan's annexation involved submission to the Roman legal system'; on the contrary it appears that a variety of legal systems con­tinued in operation in the realm of private law.^[83]

The examples Goodman adduces to support his case are not very well chosen: P.Yadin 20-25 do not concern a case of two guardians for orphans, because Julia Crispina is not a guardian (snfrponoc;) but a supervisor (sniaKonoc). Also the fact that P.Yadin 26 seems to indi­cate that a deceased man left two wives does not necessarily indicate that polygamy was at issue.^[84] However, more important than the actual examples Goodman adduced—for these could easily be replaced with a number of other more suitable ones—is the implication of his observa­tion. If it is to be accepted that indigenous law kept playing a part in legal practice after the Roman conquest, it needs to be asked what part it played and how indigenous law was able to function within a frame­work of Roman jurisdiction.

‘Reichsrecht und Volksrecht and conflict of law

In his study of 1891, Mitteis already investigated the relationship between what he styled ‘Reichsrecht' (the law of the ruling power) and ‘Volksrecht' (indigenous law) in the eastern provinces.^[85] Where scholars had previously assumed that in the Roman empire one legal system, that of the Romans, prevailed, Mitteis sought to prove that the law of the indigenous population, ‘das Volksrecht,’ continued to play an important part, in any case until the Constitutio Antoniniana effected Roman citi­zenship for all free inhabitants of the Empire. He concluded that despite the influence of Roman law and the fact that jurisdiction was completely in Roman hands, local custom and traditions were maintained in such areas as personal status, marriage and law of succession. The overall idea of Mitteis’ presentation was that even though people in the provinces went to a Roman court, cases in certain areas of law would be judged on the basis of indigenous law. Mitteis even believed that the indigenous laws influenced Roman law to a certain extent.

In the wake of his study other scholars wrote about the relationship between local and Roman law as it appeared from papyri. These studies concentrated on documents from Egypt as many of the documents from other areas had not yet been found or published.^{[86] [87]}

A related discussion that is important for a full understanding of the issues is the discussion about the existence of something like private international law in antiquity. A number of distinguished scholars shed light on that matter, coming to vastly different conclusions. A thorough explanation of the problem and a useful overview of opinions can be found in Wolff’s classical study Das Problem der Konkurrenz von Rechts­ordnungen in der Antike.⁹⁷ Wolff rightly distinguishes between accept­ing the existence of international private law as we know it, a system of rules that can determine what law will apply to cases, and accepting that something like ‘Konkurrenz von Rechtsordnungen’ existed. The first cannot be maintained for Greek and Roman antiquity:

Weder griechische Gesetzgeber noch Rom haben jemals Bestimmungen von der Art der Art. 7-31 unseres Einführungsgesetzes zum BGB. erlas­sen; ebenso hat kein romischer Jurist oder sonstiger antiker Autor jemals versucht, aus zusammenfassender Betrachtung tatsächlicher Praktiken oder im Wege theoretischer Überlegungen Prinzipen zu gewinnen, mit denen dem genannten Problem beizukommen war.^[88] On the other hand, however, Wolff indicates that the presence of for­eigners in a community raised questions as to the law that would apply to cases in which these foreigners became involved. This means that the problem of several possibly applicable laws must have been a part of antiquity's legal culture. In how far it has been a part and how much of a system behind it can be traced remained to be decided: Wolff mentioned a number of scholars who held vastly differing views. The most positive view, based on examination of examples from the Greek polis, Ptolemaic Egypt and Roman rule, was held by Lewald, in a study first published in 1946, and later republished several times.^[89] More reluctance was shown by Niederer (1952) and Schwind (1965).^[90] A series of articles detecting something like ‘romisches Kollisionsrecht' by Sturm appeared between 1978 (mentioned by Wolff) and 1981.^[91] In a later article honouring Sturm (1995) Winkel discussed the term iure competent! in C. 4,29,21 in the light of the existence of something like private international law in antiquity.^[92] Winkel rightly notes that the existence of ius gentium, law that applied to Romans and non-Romans alike, complicates the matter, a subject on which Wolff had also commented.^[93]

The importance of Wolff's study obviously lies in the fact that he clearly expressed what should be kept in mind when treating this sub­ject: questions like whether laws were indeed perceived as co-existing and co-equal systems, whether applicability of several laws to a particu­lar case was perceived as conflict of laws, in what cases and to what extent a community was willing to apply foreign law in its own courts and whether there are indications that basic principles were developed to deal with conflict of law, comparable to the principles known from present-day private international law.^[94]

Wolff's conclusion for the use of foreign law within a Roman context (that is, in his study specifically the use of foreign law by the praetor) is that the lex fori principle prevailed, while in specific cases a praetor could adduce foreign law. But Wolff emphasizes:

Aber es gab keine Konfliktslehre, aus der sich unter bestimmten Vorausset­zungen die Befolgung des heimischen Rechts einer nichtromischen Pro­zesspartei als vom Recht zwingend geboten ergeben konnte.^[95]

Wolff indicated he would treat the issue in the larger context of the legal culture of antiquity, speaking of a fundamentally different understand­ing of law.^[96] This understanding is then responsible for the lack of a con­sistent treatment of conflict of laws, although this conflict must have been part of everyday legal reality. In the concluding remarks to his study^[97] Wolff describes the fundamental difference between antiquity's legal culture and the present-day situation: in antiquity the applicability of another law or the applicability of a community's law to non-mem- bers of this community was always perceived as an exception rather than a rule. Consequently, conflict rules, rules that declared another law applicable as part of the law of the community, were outside the scope of the legal culture of such a community. Wolff also relates this to the lack in antiquity of a concept of ‘Rechtsordnung,' that is, eines sozusagen unpersonlichen Gewebes von Institutionen zur Rege­lung des Zusammenlebens aller Einwohner eines geographisch oder durch seine Zusammenfassung zu einer politischen Einheit bestimmten Gebiets—im Unterschied zum bloss personlichen Herrschaftsbereich eines Monarchen.^[98]

In this framework of Wolff one should understand conflict of law as the particular instance where two or more laws are applicable to a case and a decision has to be made which one will be actually applied, without any notion of conflict of law as a concept with a theoretical nature, allowing for the existence of conflict rules that are generally applicable.^[99]

Wolff's study focused on evidence from the Greek polis, Ptolemaic Egypt and Rome, where in the last instance the question of applicability of foreign law by the Roman praetor is discussed. Wolff explicitly indi­cates that the relationship between Roman law and local law in the prov­inces is outside the scope of his study. His reasons for this are important for the present investigation:

In ihm geht es ja nicht um die Konkurrenz prinzipiell gleichgeordneter Systeme, sondern um Duldung oder auch Beiseiteschiebung von—rechts­theoretisch gesehen—blossen ortlichen Gewohnheiten durch die überge­ordnete Macht. Es gehort daher nicht in den Zusammenhang der hier zu behandelnden Rechtserscheinungen.^[100]

In his review of Wolff's study Dieter Norr remarked about this:

Hinsichtlich des Problembereiches „Reichsrecht und Volksrecht“ darf angemerkt werden, dass sich trotz des nicht zu bestreitenden Vorrangs des Reichsrechts Konflikte und Losungsmoglichkeiten ergaben, die wenig­stens auf den ersten Blick von den Verhältnissen gleichrangiger Rechts­ordnungen nicht allzu verschieden sind.^[101]

The question that is raised by the evidence in the Babatha and Salome Komaise archives, as I am to present it in this study, is whether in the province of Arabia more than just tolerating of local custom was at issue. I will show that there are clear indications in the documents that local law was understood as a system of law, not just as some local custom: references are made to local law (not just custom) and it appears that this local law was (deemed) applicable to legal acts. This indicates that local law had its own specific role to play in relation to Roman law as the legal system of the ruling power. Especially the many references to local law as the law applicable to the legal acts seem to indicate that here ‘Konkurrenz von Rechtsordnungen' could be at issue. In any case, it is clear that the evidence from the archives can put views of the position of Roman law as the dominant system into perspective.

Consequently, the documents from the Babatha and Salome Kom­aise archives can shed further light on both the Volksrecht-Reichsrecht and the private international law discussions. The documents provide the perfect material for an investigation into the relationship between ‘Reichsrecht,' Roman law, and ‘Volksrecht,' local law, in the newly founded province of Arabia. Do the documents support Bowersock's conclusion that Roman law was applied, or rather Goodman's observa­tion that ‘a variety of legal systems continued in operation in the realm of private law'?

And if such a variety of legal systems is at issue, were these legal systems co-equal which would lead to conflict of laws? How was this conflict of laws dealt with? Can it be proven that there were not just concrete solutions in situations of several possibly applicable laws, but also something like a conscious attempt to deal with the ensuing issues, for instance by way of conflict rules? Evidence for the latter would go against Wolff's conclusion that in antiquity inclusion of applicability of foreign law in the law of a community, by way of conflict rules, would have been inconceivable.^[102]

The question of what law can be thought to apply to these documents is especially interesting since we are dealing with documents by Jews. This means that besides the supposed influence of Roman law, being the law of the new dominant power in the area, it could also be assumed that there was an ongoing, perhaps even a lasting influence of Jewish law, which was connected with the parties' identity. Jewish law was codi­fied in the Mishnah by the end of the second century CE, that is, some seventy years after our documents were composed. Consequently, it can be assumed that part of the rules that were later laid down in the Mish- nah were already in force at the time of the papyri. Indeed in P.Yadin 10, the marriage contract for Babatha's second marriage, the arrange­ments follow the requirements of the Mishnah and even present us with a very early example of a ketubba, a Jewish marriage contract includ­ing the Mishnaic court stipulations.^[103] This very obvious example in the archive of adherence to what became normative Jewish law not much later, raises expectations about the applicability of Jewish law to other legal acts in the archive. Consequently, the archives provide a perfect opportunity to investigate the relationship between local and Roman law in the province of Arabia, or to be more precise, to investigate this relationship as it appears from these documents by Jews.^[104]

Previous treatment of legal issues in relation to present study

Previous research into the Babatha archive sometimes touched upon matters of law, beginning with Lewis' observations in his edition.^[105] Often these refer to a section V of the General Introduction, which was not included in the volume, but scheduled to appear in the second vol­ume with the Aramaic papyri.^[106]

In his review of Lewis' edition, Martin Goodman already expressed his approval of the choice to publish the Greek documents without further delay, while simultaneously pointing to the ‘slight oddities' this choice produced. The volume, for example, starts with P.Yadin 5, then turning to P.Yadin 11, since P.Yadin 1-4 and 6-10 were written in Aramaic and were thus to be included in the other volume. Furthermore,

the general introduction is structured to leave room for discussion of the Aramaic and Nabataean scribal hands and problems of language and idiom in the Semitic texts, but the reader finds nothing on these matters in Volume I except an indication that they will be fully dealt with in the next round. Such omissions do not greatly affect understanding of the papyri in Greek, but postponement of the elucidation of the use of the Naba­taean calendar in the Semitic writings, and above all the delay in producing the very important and exceedingly complex chapter on problems of law, is rather more to be regretted.^[107]

The chapter on problems of law Goodman mentions was not only meant to clarify judicial procedures that were mentioned in the papyri but also to elucidate the questions regarding the law (or laws) the papyri refer to. This can be seen in several instances where Lewis refers to section V of the General Introduction.^[108]

While the research for this study was in progress, the awaited volume presenting the Aramaic documents from the Babatha archive eventu­ally appeared, in 2002, incorporating not just the Nabataean and Ara­maic documents from the Babatha archive, but all Hebrew, Aramaic and Nabataean-Aramaic papyri found in the Cave of Letters. It is a hand­some book offering a wealth of information on the papyri (technical details of the find, restorations, comments on contents etc.), but the vol­ume does not include the long awaited section on problems of law.^[109] This means that all references Lewis made in the first volume are still without a context.

In the second volume observations on legal issues are scattered throughout the introductions to and commentaries on individual papyri.^[110] No attempt was made to say something as to the larger legal picture: no separate section on Law was included.^[111] Such a larger picture was in any case disturbed by the choice to present Nabataean-Aramaic and Jewish-Aramaic documents from the archive in different sections of the edition.^[112]

The edition of the Salome Komaise archive, in DJD XXVII, does not devote a separate section or discussion to law in the documents either.^[113] In the commentary the frequently presented extensive lists of parallels in other documents are useful for assessing similarities or divergences, but conclusions as to the legal issues in a document are not always accu- rate^[114] and reflection on the implications of conclusions regarding a single document for a perspective on the overall legal situation of these documents is altogether absent.^[115]

A number of articles from the late eighties and the nineties focused on individual legal issues, foremost concentrating on guardianship, of minors (Cotton, Chiusi)^[116] and of women (Cotton),^[117] on succession (Cotton/Greenfield, Cotton on several occasions)^[118] and on marriage (Katzoff, A. Wasserstein, Cotton).^[119] In these articles it was usually inves­tigated for single documents whether they appeared to reflect either local or Roman law.^[120] Dieter Norr also wrote a number of articles on legal proceedings, clarifying some of the problems concerned with the position of the governor, the interpretation of the judges (^evoKpirai) mentioned in P.Yadin 28-30 and the form of a suit in a Roman prov­ince.^[121] These articles provide much of the information one would have expected in Lewis' section V and illuminate our understanding of Roman legal proceedings in the province in general. However, they do not directly touch upon the question of law behind the documents as Norr does not discuss the contents of legal acts.^[122]

Usually in the publications about contents of the legal acts, regardless of the conclusions that were reached, the larger context of the evidence provided by other legal acts was not dealt with: there are no conclusions as to what the specific instance under discussion meant for the archives as a whole. For instance in the articles on guardianship of a minor both Cotton and Chiusi assume that a rule of Roman law applied that barred women from guardianship. Whether one believes that the evidence from the documents supports this assumption or not (I will argue it does not in Chapter 5 below), the conclusion in itself has far reaching conse­quences for the interpretation of the legal situation in the material. As explained below, in Chapter 3, it means that a rule of substantive Roman law applied to Babatha, a non-Roman, living in a remote province. Such a conclusion has immediate consequences for the interpretation of the applicability of Roman law to provincials: would one rule of substan­tive law apply and another not? What is more, accepting applicability of substantive Roman law causes considerable problems with the rest of the evidence from the archive as it will be presented in this study: there it appears that substantively Roman law did not apply, but rather local law was adhered to.^[123] However, since Cotton's and Chiusi's articles only deal with the issue of guardianship the implications of conclusions for the material as a whole are not addressed.

Likewise, in the publications in general, no explanation is offered for the fact that either local or Roman traits are found. The possibility that Roman and local law were co-equal and rivalling legal systems is not raised and consequently, no attempts are made to understand the relationship between such rivalling systems and to trace possible strate­gies for determining which law applied to which part of the legal act. The only conclusion that was often reached, was that Aramaic documents had to be meant for other courts than Greek ones, which would relate choice of language to choice of court/jurisdiction.^[124] A conclusion like that, however, suffered from the lack of evidence in the archives them­selves for the existence of local courts. Even if one wants to maintain there were local courts, this does not prove that an Aramaic document could not be produced in a Roman court context. It is important to note in this respect that conclusions drawn about the Aramaic documents are usually merely derived from conclusions about the Greek ones: if those were adjusted to a Roman court context, the Aramaic ones, con­sequently, were not.^[125] No internal investigation of the Aramaic docu­ments was made, to see whether they give any indication of what law was thought to be applicable to them.^[126] Therefore, despite their important contributions to our understanding of specific legal matters dealt with, the said articles cannot answer more general questions as to the rela­tionship between laws in the Judaean Desert material, to be addressed in this study.

An exception in treatment can be found in Cotton's article on guard­ianship of women, which investigates in detail for both the Aramaic and the Greek documents when guardians of women occur, in what way they are referred to and what this says about the legal context of the documents.^[127] The focus here is on a possible distinction between docu­ments that have guardians (Greek) and that (probably) do not (Ara­maic), to show that the Greek documents are adjusted to a Roman court context. This conclusion, based on a number of documents, would have been a step in the right direction, had Cotton proceeded to address the question why the documents were adjusted in exactly this aspect and how this should be seen in the light of other instances where there is no adjustment (for example those papyri where there is no mention of a guardian although they are clearly meant for a Roman court con­text). However, Cotton did not address those questions, but took the issue back to the question of whether the documents that do not have guardians were not meant for a Roman court context, which infers there should have been other indigenous courts. However, as indicated above, there are no indications in the documents, other than the appearance of use of Greek, that an Aramaic document could not have been produced in a Roman court. Furthermore, Cotton's discussion had to remain inconclusive as the nature of the Aramaic material makes it impossible to prove beyond doubt that guardians did not occur here. Therefore, rather than focusing on the question whether guardians did or did not occur in the Aramaic documents and whether this indicates that those documents were intended for local courts, Cotton could have focused on the clear-cut evidence that Greek documents do have guardians and that those were beyond any doubt meant for Roman courts. As Cotton did draw the conclusion that the appearance of guardians is an adjust­ment to a Roman court context, she could consequently have addressed the question of what the adaptation to a Roman court context in this instance of guardians of women tells us about the general problem of possibly applicable laws and perhaps even about a policy to deal with such possibly applicable laws. This logical step, however, is not made.^[128]

Likewise, a discussion of the exact relation of the possibly applicable laws and a connection with a policy to determine what law is used in what instance, is missing in the recently published volume Law in the Documents of the Judaean Desert.^[129]

This volume, which incorporates twelve contributions by fifteen scholars, is the first volume completely dedicated to matters of law in the Judaean Desert material. As a general survey of the legal issues was lack­ing, the volume obviously fills a void. It is a collection of highly informa­tive essays on individual legal matters in the papyri, reflecting the topics that have concerned scholars over the years and providing a gateway to older publications on those topics. The cases made in a number of contributions for more of an influence of Jewish law on the documents seem strong and compelling and fit in with the views to be presented in the present study. However, the volume is less successful in serving its overall aim, as indicated in the editorial introduction. There it is empha­sized that the volume is to address questions of the laws or legal cultures reflected in these documents.

Are the rights and obligations recorded in these papyri, then, character­istic of Jewish society, as known from literary sources, mostly rabbinic? Are they characteristic of Roman society, as known from Roman legal and other literature? Are they characteristic of Hellenistic Greek society as known from the Greek papyri, mostly from Egypt? Were these rights and duties recognized as legal by Jewish law, by Roman law, or by Hellenistic law? Do the transactions presuppose rules of Jewish law, of Roman law or of Hellenistic law? Do we learn from these documents anything new about Jewish society, about Roman society, or about Hellenistic society? Ques­tions of this sort are addressed by the studies in this volume.^[130] However, as becomes very clear from the way in which the questions are phrased—with a repeated, almost emphatic ‘or'—the focus of the con­tributions is not so much on the relationship between different laws that all play a part in the papyri, but more on reflection of one law as against another in a particular document or set of documents. Indeed, contri­butions focus on showing how one law (as against another) played an important part in single papyri. The closing contribution by Zeev Safrai makes a sharp distinction between Hebrew, Aramaic and Greek papyri, maintaining that ‘the [Greek] documents themselves are not from the world of the rabbis'^[131] and

The Greek documents reflect a legal practice different from that manifest in the Jewish sources. The Greek documents contain virtually no viola­tions of the rabbinic halakhah, but the writs were not produced in the study hall, even though they contain traces of halakhic influence.^[132]

The editors phrase Safrai's view this way:

the Greek documents are drawn up in a legal universe very different from that of the rabbis, though there is little that is actually contrary to rabbinic instruction.^[133]

Obviously, there is a tension between the observations made: there are virtually no violations of the rabbinic halakhah, but still the Greek doc­uments ‘reflect a legal practice different from that manifest in the Jewish sources' and ‘are drawn up in a legal universe very different from that of the rabbis.'^[134] Yet as to what exactly is different then and foremost why, no explanation is offered. This means that the questions to the legal background of the documents and the relationship between laws remain unanswered.^[135]

What is missed, not just in the contributions to Law in the Documents of the Judaean Desert but in research into these documents in general,¹³⁶

it is not clarified what this actually meant for our understanding of the application of Roman law. In the last paragraphs P.Yadin 14, interpreted as a case of summons to appear before an auxiliary prefect, would testify to ‘the early application of a common Roman legal practice to the new province of Arabia.' Obviously this would be a matter of formal law, like the example adduced of taking a guardianship case to the governor instead of the city magistrates, concluding that ‘the rule may have been in existence some hundred years prior to its attestation in the Roman legal sources.' Obviously the authors take these examples to testify to the application of Roman law in a provincial context. How­ever, the concluding sentence reads ‘Alternatively, the later Roman law reflects ad hoc provisions by Roman officials in the provinces or local customs adopted by them.' Taken to refer to the two examples just mentioned this would mean that instead of assuming application of formal Roman law on the basis of the later legal sources we may also assume that these later sources reflected an influence of local law on the Roman legal system. In that case we would not have immediate evidence to the applicability of formal Roman law in the provincial context. The authors refer in a footnote to publications that come to the same conclusion—what we find in the later Roman legal sources might have been Roman law at the time of the documents or be the result of the influence of a provincial context on later Roman law—but here not only formal matters are concerned, but substantive law as well (this differentiation is not made by the authors). Especially for those instances the questions are pressing of what this means for our understand­ing of the relationship between laws. While formal legal features of one system can be incorporated into another with relative ease, this is harder to envisage for substantive matters, where often a fundamentally different legal outlook is at the heart of the matter (see discussion of guardianship of a minor in Chapter 5 below, 328-330: Chiusi's idea of influence of Roman liberation is unlikely in a provincial context). Consequently, it remains unclear what the authors' conclusion is with regard to evidence in the docu­ments for ‘the application of Roman law.'

¹³⁶ A distinction between substantive and formal law in deciding what law is applica­ble to the papyri cannot be found in any of the publications referred to above, see 196ff. below. It is important to bear in mind in this context that formal in a papyrological sense and formal in a legal sense are not identical: see 200-202 below.

To avoid any confusion, I note that the articles by Dieter Norr do make a distinc­tion between formal and substantive law in this sense that Norr indicates that he only discusses features of procedural law, such as the meaning of specific legal terms for types of judges and the form of the suit in the province (presence of formulae, cogni­tio). For matters of contents (‘materiellrechtlichen Hintergrund') he refers to studies by Cotton (“The Guardianship of Jesus”) and Chiusi (“Zur Vormundschaft der Mutter”) (“Prozessuales aus dem Babatha-Archiv,” 318, n. 10). However, Norr does not make a distinction between two levels, of formal and of substantive law, within the papyri to determine the applicable law in the papyri, as I propose to do below. On the contrary, he assumes without further discussion that in legal procedures before the Roman governor Roman law was applied to the legal acts from the archives: ‘Unterstellt man, dass vor dem Statthaltergericht primär romisches Recht angewandt wurde, kontte man daran die Frage anknüpfen...” (“Prozessuales aus dem Babatha-Archiv,” 332). Norr mentions a number of relevant questions in passing, indicating he will not deal with those in his study: ‘Nur zu erwähnen sind die damit verbundenen sprachlichen und sachlichen Probleme. In welcher Sprache wurden die Xenokriten eingesetzt? Welcher Sprache bedi­ente man sich beim Verfahren in iure (eher des Lateinischen) und apud recuperatores (eher der Landessprache)? Inwieweit flossen bei der Auslegung (etwa des tutelam gerere) is that there is a distinction between the substantive and the formal law that is applicable to a document. Both substantive and formal law can

peregrine Rechtsvorstellungen ein? Generell: Inwieweit verbargen sich hinter der genuin romischen Fassade Konzepte peregrinen Rechts?' (“Prozessuales aus dem Babatha-Archiv,” 328). I believe that what Norr positions as an open question of pos­sible indigenous concepts behind a Roman facade is really a matter of two levels in the papyri, one of substantive law which is indigenous (Norr's ‘Konzepte peregrinen Rechts') and one of formal law directed at Roman law (Norr's ‘romische Fassade'), see in detail Chapter 2 and 3 below.

Koffmahn also assumed applicability of Roman law (on the basis of the material pub­lished at the time): ‘Aber schon heute kann gesagt werden, dass alles darauf hinweist, dass bei diesen Urkunden romisches Recht sowohl in formeller als auch in materieller Hinsicht weitgehendst in Anwendung gebracht war' and a few lines below: ‘Der Ver­trag [P.Yadin 15, JGO]... beweist, dass in diesem Gebiet der romischen Provinz Arabia jüdisches Recht nicht respektiert wurde, und auch in anderen Belangen kann festgestellt werden, dass runde 20 Jahre nach Gründung der Provinz Arabia alle romischen Unter­tanen, welcher Nation auch immer sie waren, sich nach romischem Recht zu richten hatten' (Elisabeth Koffmahn, Die Doppelurkunden aus der Wüste Juda. Recht und Praxis der jüdischen Papyri des 1. und 2. Jahrhunderts n. Chr. Samt Übertragung der Texte und deutscher Übersetzung [STDJ 5; Leiden: Brill, 1968], 99-100). Of course this is a logical assumption, and indeed one prompted by some aspects of the documents, but there is also much, not to say more, that goes against it, as I propose to show below: see Chapter 2, where I discuss references to the applicable law in the papyri, and Chapter 5, where I dis­cuss the guardianship documents Koffmahn, Cotton, Chiusi and Norr were concerned with; especially see 342-344 about a Roman legal text that suggests, contra Koffmahn's and Norr's tentative assumptions, application of local substantive law in guardianship cases in the province.

I note that careful distinctions should be made as to what one is referring to. In “The Guardianship of Jesus” Cotton writes: ‘The fact that Babatha seems to be excluded from the guardianship of her son also fits the Roman legal practice—this time substantive law rather than procedure' (102), referring in a footnote to ‘the manner of appointing guard­ians, the tutoris datio described above' (n. 100). This distinction between substantive law and procedure is correct in this sense that a rule barring a woman from guardianship is indeed a rule of substantive law and a rule like the ones cited by Cotton in which the tutoris datio is described as the provenance of certain magistrates (95-96) a rule of procedural law. However, where Cotton contrasts the appointed guardian with the tutor legitimus and the tutor testamentarius (95, n. 11), we are again in the realm of substan­tive law. This means that there are both formal and substantive sides to the institute of the appointed tutor. Even if one wants to assume that the city council of Petra appointed guardians based on authority invested in them by Roman law (the formal side to the appointed tutor), this does not imply that the appointments themselves were made in accordance with Roman law, i.e. taking rules of Roman substantive law into account (the substantive side of the appointed tutor). In fact, one should argue the other way around: can this case be a case of an appointed tutor as described under Roman law, which implies that the appointment of P.Yadin 12 was indeed a case of tutoris datio? This is unlikely, as it is clear from P.Yadin 13 that the guardians were not appointed right after the father's death. Consequently, the appointment of guardians in this specific case does not see to the appointment of a guardian as provided for in Roman law, and the appointment of P.Yadin 12 is probably not a case of tutoris datio. The fact that under Roman formal law a city council may have been qualified to make such an appointment is another matter. See details in Chapter 5 below, 299ff.

draw on the same legal system, but this is not always the case. In fact, a substantive-formal division can be used as a strategy to deal with several possibly applicable laws, as often happens in present-day private inter­national law. While substantively one law is used, formally documents can be adjusted to the demands of another legal system, for example that used in the court that is to judge cases based on the documents.

Therefore, rather than thinking in ‘or' to identify legal backgrounds as the framework of one group of papyri versus another, we should start thinking in ‘and' to distinguish different laws which are—on different levels—applicable to a single document.

Therefore, the present volume seeks to offer a close examination of all documents in the archives with a specific view to determining the rela­tionship between Roman and local law as it appears in the documents, making a distinction between features of substantive and of formal law, to present the underlying strategies that determine what law was appli­cable to a specific document.

Terminology

To be able to address the question of what law was behind these docu­ments a few points require clarification, namely, what should be under­stood by the term legal system or law and how we can know what the law of a group of people was at a given moment.

a. The meaning of law or legal system

The terms ‘law' and ‘legal system' are often used as synonyms to refer to the applicable law in a certain area at a certain moment: ‘Egyptian law,' ‘Babylonian law,' ‘Roman law.' Although the term ‘law' is used in all instances alike, it is not immediately clear what is meant by this term. It obviously does not refer in all cases to a code of law. Where ‘Babylonian law' can refer to the Code of Hammurabi, ‘Egyptian law' cannot easily be connected with a single law code. There are collections of legal rules, but it is debatable whether these should be called law codes: where the Code of Hammurabi is a set of rules promulgated by a ruler, the Egyp­tian texts, for example from the so-called manual of Hermopolis, were probably collected in a temple context.^[136] Nevertheless we can use both texts and the rules laid down in them, to understand what law was appli­cable in Babylonia or Egypt at the time.^[137] The distinguishing element to accept a set of rules as ‘law' seems to be that it was likely that these rules were really applied in everyday life, not in single instances but consis­tently. This can be deduced from the fact that a set of rules was issued

and implemented by a ruler, but this is not necessary. When a real law code is lacking, or lost to us, the difficulties obviously lie in determin­ing whether the evidence to legal practice found in, for instance, docu­mentary evidence can be taken to constitute evidence for a general legal practice, that is, for the application of law as opposed to presenting us with single instances of legal practice that have no further implications for our understanding of a more general legal context. These difficulties can hardly be solved any way other than by explaining to what extent the idea of law, fixed rules consistently applied at the time, can be thought to be relevant for the documentary evidence concerned.

b. Jewish law at the time of the archives

For the Judaean Desert material we are confronted with the question of what can be thought to have been the applicable indigenous law at the time. For the specific case of Jewish law Cotton pointed out on several occasions that using the later rabbinic sources (in particular the Mish- nah) to say something about normative law at the time of the papyri would ‘involve us in a vicious circle.'^[138] It is true that the papyri and the rabbinic sources are the only sources we have providing evidence about the use of Jewish law at the time, and Cotton is right in saying that no claims can be made for any rule being normative at the time of the papyri. However, it could be assumed that rules that later became nor­mative law were already being applied at the time: the codification of Jewish law in the Mishnah was not created out of nothing.^[139] A strong argument for this is the fact, demonstrated by Cotton, that the Mishnah, written in Hebrew, employs Aramaic for the rendition of actual contrac­tual clauses:

We may envisage the Mishnaic discussion as a process whereby the rab­bis comment in Hebrew on contracts written from beginning to end in Aramaic. The commentary cites the formulae verbatim in the language in which they were written, namely Aramaic.^[140]

This shows that the clauses were adopted from actual contracts that must have functioned in the period before the Mishnah became codified.^[141]

The exact relationship between the actual contracts, or rather the legal practice of everyday life, and the later Mishnaic regulations, with clear force of (codified) law, has several sides to it. Cotton assumed that what the papyri present is actual legal practice, which was not necessar­ily Jewish:

Even when the provisions in the documents do resemble what came to be normative Jewish law, we cannot assume without further proof that what we are witnessing is the influence of Jewish law on the documents rather than the reverse: the halakha adopted the legal usage of the documents, which, in their turn, reflect the legal usage of the environment. ^[142]

and:

I have not found a better definition for what is Jewish than that such mate­rial eventually received halachic sanction, and is present in the halachic sources. Conversely, what is not there, or explicitly forbidden, I would des­ignate non-Jewish.... Thus to say that Jews are using ‘non-Jewish’ contracts is to say no more than that the legal usage reflected in the documents is not in harmony with what eventually came to be normative Jewish law.^[143]

This conclusion seems plausible enough: obviously the codification marks the moment where rules become specifically Jewish. Prior to that the contracts may have contained features of common Aramaic or specific non-Jewish laws (like Nabataean or Greek law), which means that codification could amount to accepting as Jewish law what would not have been perceived as (specifically) Jewish before. An example is liability of the groom for the dowry with all he owns, a feature found in m. Ketub. 4:7, but also known from Greek marriage contracts. By incor­porating it in the Mishnaic regulations it becomes a feature of Jewish law, regardless of the fact that it may have been a feature common to other laws as well.

As a result, it could be deemed methodologically unsound to call any of the practices and rules found in the documents instances of adher­ence to Jewish law. Lawrence Schiffman wrote to this point:

It is futile to use rabbinic parallels to conclude that specific practices repre­sent a document’s adherence to Jewish law. Such an approach is extremely oversimplified. Rabbinic sources codified the practices in customary use in this domain of life, so that the usages in evidence in our documents generated the rabbinic rulings in question. Parallels, therefore, show that the tannaim and amoraim adapted to and lived with this system which combined elements of Jewish law with the legal formulary of the ancient Near Eastern and Greco-Roman world. Indeed, Jews had behaved this way as far as we know from as early as the Persian period and most probably before that as well. In this respect, these procedures became Jewish and were totally assimilated into the tannaitic legal system. But it is clear that in some cases the tannaim envisaged other procedures, and that the rab­bis were discussing common practices and their legal implications, not legislating them.^[144]

Like Cotton’s assessment referred to above, Schiffman’s view makes a distinction between legal practice and codified law. Legal practice is described as ‘the practices in customary use’ and as ‘usages in evidence in our documents’ contrasted with ‘rabbinic rulings.’ The choice of ter­minology seems to signify that before the codification we have custom (‘practices in customary use’) and afterwards law (‘rulings’). Codifica­tion is then seen as turning legal practice into law, a view coming close to that of Cotton, who denied that there was a system of normative and even of operative Jewish law prior to the rabbinic sources.^[145] Neverthe­less, the nature and meaning of codification should not be misunder­stood: because of the existence of the Mishnah we know for sure what was (codified) Jewish law at that time, but it does not say anything as to the status of Jewish law before the Mishnah. What about Biblical law? Surely this should be considered normative law.^[146] Indeed, Cotton and Greenfield's discussion of law of succession in the Judaean Desert refers to Num 27 as a source for the Jewish order of succession, next to m. B. Bat. 8:2, suggesting both are accepted as sources of normative Jewish law.^[147] And simply logically speaking, there must have been normative Jewish law before the Mishnah: rules that are perceived by a community as the applicable rules should be called normative for the period con­cerned. Indeed, as Schiffman himself observes, the rabbis were not leg­islating, that is, making rules, but discussing the implications of existing rules, that is, of existing law.^[148]

I specifically speak of law and not of custom (or of Schiffman's ‘prac­tices'), because the documentary evidence indicates that Jewish legal practice at the time of the documents was perceived as such: as law (and not as custom), as a system of law, a set body of rules that could be referred to. A strong indication for this are the references to law in the documents and the explanations of certain features of Jewish law, to be discussed in Chapter 2 below. I will therefore compare the evidence the documents provide as to the applicable law with the rules of Jewish law found in the Mishnah to see whether the applicable law the docu­ments refer to can be identified as Jewish. This is not the same thing as is done in the majority of contributions to Law in the Documents of the Judaean Desert where the contents of the legal acts, for example phrases concerning gift, are compared to such phrases as known from later rab­binic literature, with the aim of showing that the documents reflect a legal practice that is comparable to the rabbinic legal practice. Rather than identifying individual elements within a legal document, whether phrases or arrangements, as Jewish (or as non-Jewish, or both) I seek to show in what overall legal framework the document should be read. I am foremost and specifically concerned with references to the appli­cable law, that is, clear-cut indications in the documents of what law was applicable to the document as a whole. As far as I know this approach has not been taken before.^[149] The advantage of the approach lies in its implications for the interpretation of the material, as can be illustrated with the example adduced above, of liability of the groom for the dowry with all he has. If a clause pertaining to this liability is found in a legal document in our archives, this need not prove that the parties in writing this document sought to adhere to Jewish law. For, as indicated above, this liability clause is part of Greek marriage contracts as well, and may therefore have been a feature of another legal system, or of a common tradition. Only when a feature can be found in Jewish law but not in any other law a ‘strong' identification is possible.^[150] When looking at refer­ences to law, on the other hand, to understand the overall framework of the legal act, another effect can be reached. In P.Yadin 10 such a refer­ence to law can be found in the phrase ‘according to the law of Moses and the Judaeans.'^[151] This phrase puts the contractual obligations in the contract within a framework of normative Jewish law. This means that in the case of P.Yadin 10 the liability of the groom for the dowry with all he owns is a binding obligation on the basis of Jewish law. To put it differ­ently, the fact that this liability is a feature of Greek marriage contracts as well, is irrelevant as its presence here is to be understood within the framework of Jewish law the entire contract is subjected to. Therefore, P.Yadin 10 presents us with clear evidence of normative Jewish law in a document well before codification of the Mishnah, not so much on the basis of the presence of individual elements in the document, as on the basis of the reference to the applicable law.

This approach via references to law is of great importance for the study of the relationship between Roman and local law. For if it can be shown that in the documents references to the applicable law are references to what we can identify as Jewish law, this proves that these documents could indeed be subjected to Jewish law, just because this reference to law subjects the entire contract to the legal system referred to. If the documents can be found to be subjected to Jewish law, this also implies that Jewish law indeed constituted a law (and not mere custom), to which documents could refer. This calls for revision of Wolff's views, positioned before the Judaean Desert material was found, that a pro­vincial situation cannot lead to conflict of law, as only local custom was concerned that was merely tolerated by the Romans within the context of their own dominant legal system.^[152] If the documents can refer not just to custom but to law, we have to accept that local law enjoyed a status as legal system co-equal to the Roman legal system. In that case a clash between applicable laws is possible and a more specific investigation of a relationship between the two laws can be conducted.

Obviously, as Schiffman observed, the papyri do not always present the same legal solutions as we find in the Mishnah. Legal practice was not simply turned into legal code: codification involved making choices, it was a process of selection, that is, of acceptance of certain legal prac­tices and abolishment of others.^[153] However, this does not warrant the conclusion that what we find in the documents was not Jewish law. A most compelling example of a conscious choice to deviate from legal practice that was apparently normative Jewish law at the time of our documents will be presented in Chapter 4, where I will show that the evidence from the papyri describes an order of succession that was in line with general oriental succession practices, while the Mishnah chose to deviate from this by giving the daughter a position she did not hold in other oriental laws nor, indeed, in older Jewish law.^[154]

c. Roman law at the time of the archives

Even though it is sometimes argued that little is left of the actual leg­islation of the Roman emperors before the fourth century CE,^[155] other sources provide many details about Roman law and the way it func­tioned in the second century CE, both in the city of Rome and in the provinces. This particularly applies to material by jurists transmitted either directly (as in the case of Gaius' Institutiones) or indirectly, by incorporation in Justinian's famous codifications, together constituting the Corpus Iuris Civilis.^[156] Through the incorporation of the material into

one of the codifications, it lost its relevance with respect to its original date of publication and had force of law from the date of the issue of the codification onwards. This was logical because Justinian sought to solve the problems caused by the overwhelming quantity of legal material that could be used in legal procedures. The Romans used the lex posterior rule, which meant that when two rules were in conflict with each other, the most recent would prevail. This meant that subsequent edicts could keep replacing each other and changing the prevailing rules. In order to unify the legal system Justinian had all the legislation incorporated into one text, which was to have exclusive force. Every rule laid down before which was not incorporated no longer applied. However, since the opin­ions in the Digest are given accompanied by the name of the original lawyer and the work where the passage could originally be found, much is revealed of the workings of Roman law many centuries before the Corpus Iuris Civilis was composed. Some of the lawyers quoted in the Digest lived in the second century CE and quotations from their works provide sources of Roman law that are almost contemporary to the doc­uments of the Babatha and Salome Komaise archives. In most cases we do not have the original sources but are entirely dependent on the quo­tations found in the Digest. An important exception is the case of Gaius' Institutiones, which was transmitted directly in various manuscripts.^[157] It appears that the editors of the Institutiones have drawn heavily on their source: of the 901 paragraphae of Justinian's Institutiones, 414 were copied in more or less complete form from Gaius' Institutiones.^[158] Fur­thermore, in many instances the editors chose to copy the opening sen­tence of a new title from Gaius: of 98 titles in Justinian's Institutiones 53 have an opening sentence of a title taken from Gaius.^[159] In general, it can be concluded that the Institutiones of Justinian follow Gaius so faithfully that the Institutiones can be considered as being a ‘indirekte Parallelüberlieferung zum gajanischen Institutionen-text.'^[160] As the same editors compiled not only the Institutiones but also the Digesta, we can assume that where Gaius is concerned the Digest paints a faithful por­trait of the working of Roman law at the time of the Babatha and Salome Komaise archives.^[161]

In all cases it has to be borne in mind that we are dealing with mate­rial from one of the provinces, and a province that had been, at the time concerned, relatively recently subjected to Roman rule. Consequently,

it is important to note that although Roman law was, of course, paramount in the eastern provinces, it existed there not merely as a systematic imita­tion of legal practice in the rest of the empire. The case made by Mitteis for the long-term survival of local legal forms and institutions in the eastern provinces is too well known to need or to bear rehearsing here.^[162]

Therefore, I would like to emphasize that in the case of Roman law there could be the same doubts as to the normative status of certain rules as in the case of Jewish law. For instance concerning guardianship of women, Roman law demanded that a woman was accompanied by a guardian to make a legally valid act. In the documents in the archive however, guardians do appear, but certainly not in all cases and for all women. Furthermore, the treatment of the part of the guardian seems to differ in the descriptions of the Greek main text and the Aramaic subscriptions.^[163] The ambiguous picture painted by the documents themselves shows that guardianship of women might not have been a clear and undisputed matter in the provinces.^[164]

Method

Starting from these basic assumptions about the status of Jewish and Roman law for this study, the next chapters will investigate whether the references to the applicable law as found in the documents can be related to either Roman or indigenous, more specifically Jewish, law, and what this reveals about the relationship between local and Roman law at the time. The treatment has been divided into two parts, the first discussing issues of a more general nature, while the second part is devoted to three case studies of specific legal themes.

The first part of the book will discuss the papyri from a general perspec­tive assessing the material with regards to the use of language and refer­ences to law.

In Chapter 1 the discussion of language issues will be mainly focused on understanding the use of both Aramaic and Greek in the archives and relating the use of the languages to the law behind the documents. Does the use of Greek in the later documents denote that the legal con­text had changed? What does the continuing use of Aramaic in sub­scriptions mean in this respect? When Greek and Aramaic parts of a document can be compared and differences are found, does this denote that both refer to different legal backgrounds/laws? It will appear that language does not directly determine to what jurisdiction a document was subjected or what law was applicable to a document and conse­quently that language-based divisions of the documents are not suitable to explain for the law behind the documents. Instead references to law in the documents' text should be used to determine to what legal context a document refers.

Chapter 2 will present references to law as used in a number of both Aramaic and Greek papyri, to investigate in what way the documents refer to law behind the documents and whether the way of referring changed as the documents began to be written in Greek. It will appear that documents can refer directly to the law that is applicable to them and that these references are indicative of the change in legal background occurring at the time of the Roman conquest.

Consequently, Chapter 3 will show it is possible to discern a new way of referring to law in documents written after the Roman conquest, which can shed light on the relationship between Roman and local law in the area. The Chapter will propose a two-level approach of the papyri: distinguishing two levels (of substantive and formal law) within each papyrus that determine what law is applicable to that level. Both levels can refer to the same applicable law but each can also refer to a different law. Furthermore, Chapter 3 will argue that this two-level division is part of a consistent way of dealing with several possibly applicable laws in the documents.

The second part of the book consists of three detailed case studies, focus­ing on the subjects of succession, guardianship and marriage. All three subjects play a part in several papyri in both the Babatha and Salome Komaise archives and have been the object of continuing scholarly inter­est. My treatment will focus on what the documents reveal regarding the law behind the documents and how this law should be interpreted. This involves a detailed assessment of the legal aspects of the papyri con­cerned, connecting them with oriental law in general and Jewish law in particular, and of course Roman law. The focus will not be so much on specific legal arrangements, but on references to law and their implica­tions for our understanding of the legal context of the material. It will appear that despite the conspicuously Roman features of some of the documents, their subject matter is thoroughly rooted in oriental indig­enous law. This divergence can be explained for by the division between formal and substantive law as proposed in part I. This division offers a better understanding of the relationship between indigenous and Roman law and of the way in which several applicable laws could func­tion within a system of sole Roman jurisdiction.

For clarity and overview, each part opens with a short section intro­ducing the subject matter of the part and of the individual chapters in that part. Furthermore, each individual chapter has a conclusive sec­tion, presenting the arguments and conclusions of that chapter in short. Because those sections are of a summarizing nature, they do not present arguments in full, nor do they give extensive sources in footnotes. For details one is to consult the full discussion and references within the chapter. To get a quick overview of the main issues dealt with in this study, however, the conclusive sections give a good impression of older views and the new additions of this study.

Because this study does not deal with single documents but with two archives, research was aimed at maintaining the unity of the archives and discussing as many papyri as possible. However, some papyri were deliberately excluded as they do not concern the families involved in the archives, their interpretation is doubtful, or their nature is not that of a legal act in the strict sense of the term.^[165]

Furthermore, because the treatise offers a discussion of several issues and legal themes, the papyri are not presented in chronological order, nor is the treatment in each case the same. Depending on the point in the discussion where a specific document is discussed the treatment may be more or less detailed. The discussion of a single papyrus in Chapter 2, on references to law, for example, is by nature more extensive and technical-juridical than the discussion of several related papyri on the theme of succession (Chapter 4) or marriage (Chapter 6). Never­theless, the papyri are related documents and the treatment in all cases seeks to elucidate the legal environment of the archives as a whole.

Sources

For the texts and translations of the papyri, the following editions are used (to which commentaries I will also frequently refer):^[166]

Babatha archive

Lewis, Naphtali, ed. The Documents from the Bar Kokhba Period in the Cave of Letters: Greek Papyri, with Aramaic and Nabataean signatures and subscriptions, edited by Yigael Yadin and Jonas Greenfield. Jerusa­lem: Israel Exploration Society, 1989 (hereafter Lewis); and:

Yadin, Yigael, Jonas C. Greenfield, Ada Yardeni, and Baruch Levine, eds. The Documents from the Bar Kokhba Period in the Cave of Letters: Hebrew, Aramaic and Nabataean-Aramaic Papyri. Jerusalem: Israel Exploration Society, Institute of Archaeology, Hebrew University, Shrine of the Book, Israel Museum, 2002 (hereafter Documents II).

Salome Komaise archive

Cotton, Hannah M., and Ada Yardeni. Aramaic, Hebrew and Greek Documentary Texts from Nahal Hever and Other Sites, with an Appendix Containing Alleged Qumran Texts (The Seiyal collection II), DJD XXVII, Oxford: Clarendon Press, 1997 (hereafter Cotton/Yardeni).

Note on extent of legal detailing

As observed above, no general overview of judicial aspects of the papyri, such as a running commentary in an edition of papyri, is available. The kind of argumentative discussion necessary to address a general ques­tion like the one concerning law behind the documents presupposes some prior clarification of the basic legal issues in the documents. How­ever, since such a treatment is lacking, and too much detailing of basic legal matters seemed unwanted in the present context, in most cases general legal questions raised by the material, concerning, for instance, legal capacity, the difference between title and judicial ground, between title and contract or the difference between selling what is not yet owned and what has not yet come into existence will not be discussed. Explana­tions about judicial details are limited to those necessary for the argu­ment (for example the difference between intestate and testamentary succession); at times details are provided in sections in small print or in the footnotes. An advantage of this method is that the very technical portions of the discussions are minimized, making them easier to read for those not specifically familiar with legal matters, like papyrologists, linguists and historians, who have often raised the questions so ardently discussed in prior scholarship.