I. Guardianship of a Minor The case of Babatha’s son Jesus

P.Yadin 12-15, on which I already touched briefly above in the chapter on law of succession, concern ‘the orphan Jesus' or to be more specific, the raising of this child.^[783] This way of describing the documents' contents is more accurate than saying they refer to guardianship, for although guardianship is an issue in the papyri, it is certainly not the only issue.

Another discussion of these papyri explicitly refers to this treatment as ‘a general and comprehensive analysis of the texts, in particular their importance for the Roman law of guardianship’.^[785] Of course the papyri raise questions concerning guardianship and one can look at the posi­tion of the mother as, apparently, opposed to that of the guardians, but too strong an emphasis on the institute of guardianship can obscure our understanding of the papyri, as they do not foremost deal with the ques­tion of who could be guardian, but how in a case of a child in ward dif­ferences about raising this child (in casu maintenance) were solved.

The appointment of the guardians

That the papyri are not concerned with the question of who could be guardian can be seen in the first papyrus of the group, P.Yadin 12, which is an appointment of guardians by the city council of Petra.^[786] The pres­ence of this document in the archive means that guardians had been appointed by an official body, and what is more important, that this appointment was obviously not contested by Babatha. Not only do we have no documents to that point, but Babatha even refers to the appointment of the guardians in her letter to the governor, P.Yadin 13.^[787] She accepts their appointment as a matter of fact, using it as the back­ground of her complaint about receiving too little maintenance money. Her problem is obviously not in the appointment of the guardians or her own position vis-à-vis them, but in the way the guardians are support­ing the upbringing of the child. The matter at issue is supervision of a deceased's estate by guardians during minority of his heir.

Above, in Chapter 4 on law of succession, I discussed several features of the papyri P.Yadin 12-15 in detail and I will only briefly refer to that discussion here. I argued that P.Yadin 13 shows that the brother of the deceased, Joseph, held some position vis-à-vis his deceased brother's estate and that the guardians had obviously not been appointed right after the deceased's death but at a later instance, probably on request. This request might have come from Joseph or Babatha, or have been agreed on between them. Babatha, in any case, explains to the governor that after her husband's death the part of his estate that belongs to her minor son was supervised by her brother in law and that it was decided some­one should be appointed to see to debts and matters of maintenance.^[788] The appointment of the guardians obviously fits with this decision she mentions.

I refer to P.Kahun 1.1, a document from the Middle Kingdom, which ‘apparently con­tains provisions for the appointment of a guardian of a child, in case of the father's death,' see Jasnow in A History of Ancient Near Eastern Law, 276, referring to Parkinson.^[790] Parkinson's translation of the line referring to guardianship runs: ‘It is the deputy Gebu, who shall act as guardian to my son.' Parkinson adds in a footnote that ‘this sentence was added by another scribe.' He explains about this in the introduction to the papyrus: ‘At a later date an extra line was added, which shows that a son had been born by then.' The main text indeed does seem to indicate that at the drawing up of the will, the testator and his wife did not have any children yet. Parkinson adds that ‘it may also imply, from his appointment of a guardian, that Wah did not expect to live long enough to raise his son himself.' Indeed, the purport of the will is that Wah makes over his property to his wife, who is entitled to bestow it on whomever of their (future) children she wants. This means that Wah probably envisaged a situation where he would leave behind a widow and (small) children at his death. The actual birth of a son may have occasioned the addition, providing for a male guardian-supervisor for the young (future) heir. Note that no arrangements were made for guardianship of future children in the original arrange­ment. This could indicate that such arrangements were not necessary. ^[791]

Indeed, it is debatable whether this text should be related to matters of guardianship at all. The word used for ‘guardian’ here is better translated as ‘child-educator’ referring to a person seeing to a child’s upbringing and education rather than to property mat­ters.

In a papyrus from 264-270 CE, also from Egypt, a woman makes a request to have her brother appointed guardian of her minor daughter by her late husband. In a discus­sion of this text in the context of the entire archive in which it was found it is stated that ‘guardianship of minors is unique to Roman law’ and reference is made to Taubenschlag’s The Law of Graeco-Roman Egypt, 157 and 178-181.^[793] I note, though, that Taubenschlag distinguishes between three things: guardianship of wards, guardianship of women and ‘guardianship’ of minors, that is, not tutela like with the wards and women but rather cura.^[794] This is a different concept: until a certain age a minor had a guardian, after that he could have a curator. This was not necessary: the curator was ‘only appointed upon application’ and the minor was ‘equally competent without him.’^[795] This already implies that even under Roman law there was no strict rule for ‘guardianship’ of a minor in the sense of cura. However, Roman law did insist on tutela for wards, that is, legal represen­tation of a fatherless child by a male relative. A fatherless child always had a tutor, either because one was named in the father's will (tutor testamentarius) or a relative became tutor by law (tutor legitimus). If there was neither a tutor testamentarius nor a tutor legitimus, a court could appoint a tutor (tutoris datio). For the papyrus concerned here the question would be whether the request made by the mother is for appointment of a guardian (tutor) or curator. I will come back to this below.^[796]

These facts already imply that there was no apparent need for guardianship.

In the case of P.Yadin 12-15 it seems clear that initially the supervision of the estate was in the hands of the deceased's brother. I cannot find another explanation for the fact that Babatha complains that ‘he has not provided maintenance, nor the guardians, who have been appointed for over more than four months.'^[797] Furthermore Joseph's obligation obvi­ously existed prior to the appointment of the guardians and probably ended at the moment of that appointment, as can be gathered from Babatha's statement that ‘he has never given maintenance... nor have the guardians given..., except for....'^[798] It seems obvious that this phrase refers to the situation from Jesus' death until the day Babatha wrote the petition, first covering the period from the death until the appointment of the guardians (during that period Joseph never gave maintenance for the child) then turning to the period after the guardians' appointment (a period of four months in which the guardians have not given except for two denarii a month). The way Babatha explains the situation sug­gests that the guardians took over the supervision from Joseph, or were in any case appointed for a specific part in the estate supervision.^[799] This means that the guardians' appointment cannot be related to the insti­tute of guardianship as such, that is, the case found here does not show anything regarding guardianship of a minor in general. To put it dif­ferently, the papyri cannot answer general questions as to who could be guardian, or how guardianship was instituted, since we are dealing with a very specific situation here. Appointment clearly followed earlier developments in estate supervision and cannot be considered to see to guardianship over a minor or a deceased's estate directly following his death. Therefore, I doubt whether it is useful to discuss the matter of who could be guardian of a minor in this context. This is clearly not at issue here. The papyri present a case of mismanagement of a deceased's estate and can only provide evidence related to that situation. Therefore, we can conclude that it was possible to have guardians appointed to see to maintenance matters, even when an estate was already managed by a family member. This also shows that appointment like the one made by the city council of Petra and documented in P.Yadin 12 did not auto­matically follow the death of the deceased. This is important because the appointment itself could raise questions as to how a city council arrived at an appointment: was it notified of deaths, were cases brought to the council by relatives etc.^[800] In this case it was obviously the latter: someone requested the appointment of the guardians.

For this matter I refer to a papyrus from Egypt (264-270 CE), which presents us with a petition of a woman to the prefect to have her brother

appointed guardian of her minor daughter.^[801] Her husband died and it is said explicitly in the papyrus text that the deceased died intestate.^[802] This apparently relevant bit of information can in my opinion be interpreted in two ways. The woman could seek to express that there is no will that could contain the nomination of a guardian and she therefore requests the appointment of another person whom she specifically names. The remark could, however, also serve to denote that the order of succession follows the law. Since the deceased died leaving a minor daughter, this daughter would obviously be his heir.^[803] The mother requests the appoint­ment of a guardian ‘for the administration of the child's property'^[804]

However, it is obvious that the property of the deceased had been entrusted to his brother.^[805] This is interpreted by Verhoogt as denoting that this brother was heir.^[806] However, I do not think that the fact that the property was entrusted to the deceased's brother necessarily denotes that he had ‘ received the inheritance'^[807] in the sense that he had become owner. The brother might have been put in charge of the property as long as the minor child-heir was not of age. This would resemble the situation in P.Yadin 12-15, where the deceased's brother Joseph seems to have been entrusted with his brother's inheritance even though Jesus was obviously the heir. In fact the two situations seem to have been completely alike: in both instances a father has died, the only child is heir, this child is still a minor, the property is entrusted to the deceased's brother, and the mother requests appointment of a guardian to see to administration of the property.^[808] This means that P.Yadin 12-15 could actually shed more light on the situation in the papyrus from Egypt, showing the minor daughter there is indeed heir to her father's estate. I agree with Verhoogt that the presence of a rescript of Gordian III in the same bundle of papyri, concerning the legitimacy of children, could suggest that the child's legitimacy and therefore her capacity to be heir was disputed.^[809] If her legitimacy could not be proven, the deceased's brother might indeed have been the legal heir. However, the extant texts do not explicitly say that this was the case, and Verhoogt himself empha­sizes that the mother in her request is ‘clearly expecting that the inheri­tance would fall to Paulina,' the daughter.^[810] This fact does not fit with Verhoogt's over-all interpretation that not Paulina was the heir, but the brother, and I believe this is due to a misunderstanding of the brother's part in the whole affair.

Verhoogt's interpretation is based on his assumption that the brother has become owner of the property. However, the documents do not show this, but, on the contrary, the mother's phrase referring to ‘the child's property' suggests that she considered her daughter to be owner of her husband's estate. That the brother is said to have received the property, need not denote more than that he was to keep the property until the heir was of age. In this respect it is interesting to read Verhoogt's obser­vation at the end of his discussion of the documents pertaining to the inheritance and guardianship matter:

there are several cases on record of orphans who are bereft of their pater­nal inheritance by relatives of their father and try to get the inheritance back once they are mature; see, for example, P.Cairo Isidor. 63.^[811]

It is not clear how we should understand ‘bereft' in this respect: was the orphan's position as heir disputed (like Verhoogt concludes for the case of Paulina) or was the property merely kept by a relative during the minor­ity of the orphan and did a dispute arise when the relative did not want to hand the property over as the orphan became of age? I am inclined to believe that the latter option is at issue in P.Cairo Isidor. 63.^[812] There a young woman, Taesis, complains that her paternal inheritance was ‘sto­len and appropriated' by her father's brother.^[813] She declares that she did not take action during her minority but now that she has come of age she wants to have the paternal inheritance, which the brother as she states ‘retains in his possession,' restored to her.^[814] It is clear that the daughter does not consider the uncle to have become owner of the inheritance, it is said that he appropriated the property and that he retains it in his pos­session.^[815] This indicates that the daughter considers herself to have been owner all along. Her right is obviously based on succession. Because the inheritance is defined as ‘paternal inheritance' it is clear that here a daughter is concerned who was heir to her father's estate. The case could be interpreted in two ways: either reading it as a case of a brother of the deceased disputing the right of the daughter to inherit her father's estate by appropriating the property or as a case of a brother of the deceased taking care of the property during minority of the heir (comparable to the case of P.Yadin 12-15). In this latter instance the problem obviously arose where the brother of the deceased refused to restore the property to the daughter-heir at her coming of age. Which interpretation we may choose, it is in any case clear that this case is related to matters of suc­cession and could very well testify to the conflicting claims of a daughter and a man's brother to his inheritance. When compared with the case of Paulina discussed above, I am led to believe that, contrary to what Verhoogt thinks, Paulina was indeed heir to her father's property and that someone needed to be appointed guardian to see to the administra­tion of the portion of Paulina's property that was entrusted to her uncle, the brother of the deceased father. This Egyptian papyrus would then provide an exact parallel for the case of P.Yadin 12-15, with the mother petitioning for appointment of a guardian for financial management.^[816]

In the light of the case of P.Yadin 12-15 it is interesting to note that both in the case of Paulina and of Taesis in P.Cairo Isidor. 63 the child­orphan is raised by someone else than the person who sees to the inher­itance. Obviously, there were instances where a brother of the father ‘appropriated' the inheritance, apparently without a clear link with care for (or guardianship of the person of) the minor. His part was clearly only property related. This should warrant caution for believing that P.Yadin 12-15 can explain about guardianship as such, that is, to answer questions of who could be guardian and who couldn't. The appointment of the guardians in P.Yadin 12 followed a request and should therefore be seen in the light of a specific situation, rather than as presenting gen­eral information on guardianship matters.

This observation is important for answering a question referred to by Cotton, and before reluctantly addressed by Lewis, as to the number of guardians appointed. Lewis already observed that in the systems that did know guardianship, the Greek and the Roman, one guardian was sufficient, while in the present instance two guardians are appointed.^[817] He relates this to local custom, without explaining what custom this could have been. Cotton refers to this merely stating that local custom has been adduced as an explanation for ‘the naming of two guardians instead of one.'^[818] In her footnote she refers to Lewis, but also to her appendix I. There Cotton suggests ‘with all due caution' that certain practices found in the papyri might have been accepted by the Romans from Nabataean practice. Although she does not mention the number of guardians appointed at that point, her earlier reference to the appendix suggests that she meant to raise the suggestion for this instance as well. Unfortunately we know next to nothing about Nabataean law making it very difficult, if not plainly impossible, to determine what Nabataean practice in such cases was. It is possible that it was customary to name two guardians, and that the city council maintained this custom even though it had become an official body within the Roman administra­tion, but we cannot say anything with certainty to that point. Noticing that Babatha's petition clearly mentions a reason behind the appoint­ment, the decision to have someone see to debts and maintenance, we could just as well assume that the appointment followed the request of the parties involved. Why not suggest, with the same due caution, that a Jewish feature was behind the naming of two guardians instead of one? Especially if we assume that there was already a supervisor of the estate, the deceased's brother Joseph, it is obvious that the guard­ians were appointed for additional supervision. This comes close to a situation referred to in Talmudic law of appointing co-guardians to see to property matters.^[819] The number of guardians appointed in such an instance is two (or more). The Talmudic material is substantially later than our present documents, but still the suggestion could be raised that a number of two co-guardians appointed could concern local Jew­ish, rather than local Nabataean, custom. To reconcile both viewpoints one can even put the question of whether Nabataean and Jewish custom cannot have been alike on that point or the Talmudic (i.e. Jewish) mate­rial presents a situation common to other oriental laws or found in vari­ous local customs.

I think that the fact that the guardians were appointed on request, that is, not directly following the death of the testator, demands a great degree of caution in all conclusions based on this material. After all we cannot be sure how unusual this situation might have been. I also think one should take into account that the province was relatively young: when saying that Roman law required but one guardian, it invites ques­tioning how well this Roman rule was known in Petra. Even though the city council had obviously become part of the Roman administration, where substance was concerned it might have continued to work along familiar lines.^[820]

This does not only go for the number of guardians appointed, but also for the matter of their nationality raised by Cotton. She notices that one of the men appointed was a Nabataean, the other one a Jew, while the orphan concerned was a Jew. This latter fact, I emphasize, was mentioned specifically in P.Yadin 12, presenting a rare instance of direct evidence in the papyrus text that we are dealing with an archive of a Jewish family.^[821] Cotton points out that it is peculiar that one of the men is a Nabataean, referring to this both as ‘indifference to the principle of personality' and stating this ‘contrasts with Roman law which demands that the guardian should come from the same nationality as his ward.'^[822]

The use of the word nationality requires some clarification as it can easily be related to a modern concept of nationality and nation, which is strongly connected with citizen­ship. Nationality in the case of documents like these, however, refers rather to origin and birthright, to the concept of a people, like ‘the Jews' or ‘the Nabataeans.' Therefore, when I refer to nationality in the papyrus text, I mean a designation of the group (people) to which a person (in this case the minor child) belonged.

The distinction between the ancient concept of nationality as reference to a group (origin, birthright) and the modern concept of a true nation makes it clear that what were called Romans in antiquity could have been two types of Romans: those who were so by birth (by belonging to a certain people) or those who had become so by obtaining citizenship. The apostle Paul, for example, was obviously a Jew, yet he could refer to his Roman citizenship.^[823] Roman citizenship was bestowed on all (free men) living within the Roman Empire by the famous Constitutio Antoniniana in 212 CE. For the papyri we can assume that most people concerned here were not Roman citizens and nationality should therefore be taken to refer to origin (belonging to a group or people). Both the Nabataean and the Jewish guardian appointed were most likely not Roman citizens, nor was their ward. This is important, because Cotton refers to a demand of Roman law that the guardian should come from the same nationality as his ward. Nationality should here obviously be understood in the sense of origin, as the case concerns a Nabataean guardian for a Jewish ward. It can be debated, however, whether the references Cotton adduces deal with cases of nationality, or rather of citizenship.

Taubenschlag, to whom Cotton refers, states that ‘in accordance with the principle of personality, a person of the same nationality as the ward is usually qualified to be his guardian though in peregrine law we find this principle already disregarded in the early Ptolemaic period when even women of Egyptian nationality would become guardians of Greek wards. The Romans were much stricter in this respect. As a rule, the guardian of a Roman ward must be a Roman though exceptions to this rule are known.'^[824] This is logical since the institute of guardianship is based on the capacity to make legal acts: a guardian assists the ward, who cannot make legally valid acts on his own. If the guardian would not be a Roman citizen he would not be able to perform certain legal acts, which would obviously frustrate the purpose of guardianship. Nevertheless, Taubenschlag indicates that there were cases where Roman wards had non-Roman guardians.

In the provinces, where in general non-Roman wards and guardians were concerned, the principle of personality might have been less strictly adhered to in appointing guard­ians, since the above mentioned problem did not occur there. Mitteis, to whom Cotton also refers, does not mention a demand, but a regular practice.^[825] He gives an example of a Roman woman, married to an indigenous man, who had a Roman citizen for her guardian, but he immediately adds that practice might have been more lenient, espe­cially where it came to guardianship of women.^[826]

Juster, also referred to by Cotton, discusses the position of the Jews after the lex Anto- niniana de civitate was brought into effect, thus after the difference between Jews who were Roman citizens and those who were not has disappeared. The text from the Digest Cotton gives (as cited by Juster) refers to this issue, for the text mentions that Jews can exercise guardianship over non-Jews (thus not vice versa!), because they can be called into any public office.^[827] This concerns citizenship as Juster explains: Jews who were Roman citizens could be guardians of non-Jews, but a Jew who was not a Roman citizen could not be guardian of a person (even a Jew) who was.^[828] Thus the issue seems to centre on citizenship and not on nationality.^[829] It rather seems that the discerning element the text gives to determine who could be guardian of whom, is not nationality (in the sense of origin, birthright), but Roman citizenship.

To sum up: when we understand nationality as referring to origin there is no reason to assume that the appointment of P.Yadin 12 would go against Roman law: Roman law did not require guardian and ward to be of the same nationality, that is, of the same origin/ people. Roman law did require, or in any case prefer, that a guardian of a ward who was a Roman citizen was a Roman citizen as well. Since we are dealing with a provincial situ­ation here in which most likely neither ward nor guardians were Roman citizens, such a requirement is irrelevant for our case. This means that it may be considered remarkable that a Nabataean is appointed as guardian of a Jewish ward, but this cannot be said to go against Roman law.^[830]

Obviously, the number of guardians appointed deviates from what one would expect.^[831] Above I have argued that the appointment should be seen in the context of the arrangements concerning Jesus' estate, arrange­ments that need not necessarily follow Roman law either. It is distinctly possible that the initial arrangement with the brother as supervisor of the estate followed local, perhaps Jewish, custom, while the Roman authorities only became involved where the original arrangement failed. After all, that was the moment when guardians were appointed by the city council of Petra, leading up to Babatha's eventual complaint about their behaviour in her petition to the governor. We have to assume that the appointment somehow fitted with Roman legal practice, that Roman law in any case allowed for such an appointment by an official body within the Roman administration.^[832] Nevertheless, this does not explain why the appointment was made this way: with two guardians appointed and such a clear reference to the nationality of the ward. Had two Jews been appointed guardian, one could have understood the connection. The child is a Jew, therefore the guardians are Jews as well.^[833] But why mention the child's nationality when it cannot be linked with the guard­ians' nationality? This is especially interesting as the nationality of the parties is never mentioned in any of the documents: P.Yadin 12 presents the sole instance where a person figuring in these documents is specifi­cally designated a Jew. It is almost inevitable to conclude this designa­tion was somehow important for the legal purport of the document. If there is no connection with the nationality of the guardians, the connec­tion must almost inevitably lie in the number of guardians appointed. The fact that the child is a Jew prompted the appointment of two guard­ians. This would support my suggestion made above that the naming of two guardians was local Jewish custom and could consequently link the evidence found here to the Talmudic practice of naming two co-guard- ians to see to property matters. The fact that an initial agreement was made to have someone see to debts and maintenance, as referred to in P.Yadin 13, suggests this was not unusual. This could indicate that the arrangements found in P.Yadin 12-13, both when it comes to the initial supervision of the estate after Jesus' death and to the appointment of guardians, should be read in the light of Jewish legal practice.

Jewish legal practice might also explain Babatha's position vis-à-vis her son, that is, the question of whether she could not have been a guard­ian herself. This question is discussed in detail by Cotton in the article on guardianship of Jesus, already referred to repeatedly above. Cotton explains that in Jewish law a mother could be appointed guardian by her husband during his lifetime, either as guardian over his property or over that of his orphans. Appointment by a court (after the husband's death) or in his will seems to have been more difficult, but not impossible.^[834] Cotton also specifically mentions the de facto guardianship: ‘guardian­ship acquired by virtue of “orphans boarding with the householder” ' and says that ‘this could offer a way for women to become de facto guardians of their children.'^[835] This situation seems to be perfectly suited for Babatha's position since it is clear that the child is residing with her. However, Cotton states that ‘it seems that boarding with his mother did not have the legal consequence of turning Babatha into the guardian of her orphaned son, Jesus.'^[836] Even though she does not explicitly say so, I think her reason for assuming this and thus dejecting de facto guardian­ship for Babatha is the fact that Babatha nowhere expresses that she is guardian. There is thus no ‘awareness' to stay in the terms Cotton uses in the article.^[837] However, the fact that something is not said can simply mean that it was assumed. Babatha need not say that she was guardian, since precisely the fact that the child lived with her had turned her into a de facto guardian. The whole principle behind something de facto is that it does not require a specific legal act: the fact that a minor child resides with his mother turns this mother into a de facto guardian. That is also what Cotton seems to believe, for she feels obliged to state explicitly that the boarding did not have this consequence. There is, however, nothing in the papyri to justify this assumption. On the contrary, it seems obvi­ous that the combination of facts—child lives with mother and in such a situation mother is considered de facto guardian—leads to the conclu­sion that, from a Jewish legal point of view, Babatha was indeed guard­ian of her minor son. Cotton explicitly denies that this was so, without saying in so many words why. She draws a general conclusion that ‘none of the Jewish practices and rules delineated above regarding the orphan's mother is present in the archive.'^[838] Of course it is true that Babatha does not discuss her own position in any of the documents: nowhere does she mention that she is herself the boy's (de facto) guardian. But on the other hand, I add, she does not say that she is not, either. Babatha does not contest the guardianship or asks to be made guardian herself, as Cotton herself emphasizes.^[839] Indeed, we have a copy of the act of appointment in the archive, Babatha refers to the appointment, even seems to use it in her argument in favour of her case. Although P.Yadin 13 is not abso­lutely clear about this, it could be read to mean that Babatha had her­self requested the appointment of guardians, to see to the debts and the maintenance money concerning her deceased husband's estate. It is also possible that Joseph had proposed it or agreed upon it with Babatha, to end a dispute between them about management of the estate.^[840] This fact that the guardians were appointed later, and not right after the death of the father, implies that the child had a legal guardian (tutor legitimus) right after his father's death. This could very well have been Babatha (for the person of the child). This means that the information in the docu­ments does not prove beyond doubt that Babatha was not guardian. On the contrary, the information provided leaves this possibility open, as the presence of the appointed guardians does not go against de facto guardianship by the mother.

It is important to mention this since Cotton uses Babatha's alleged exclu­sion of guardianship to show that Jewish law played no part in the docu­ments, at least that there is no evidence that any of the later institutions of Jewish law were known to Babatha. Consequently, Cotton assumes that there was not only no normative Jewish law at the time, but also no operative law:

...the existence of a coherent and operative Jewish system of law at the time is thereby called into question. Such a system, if already being for­mulated in the schools of the Rabbis, had yet to become normative. It has certainly left no trace here.^[841]

For a legal system or law to be called operative it seems inevitable that there was a sort of systematic treatment (in any kind a set of fixed rules) and some kind of exclusiveness (people understood this was the law they had to take into account). Both implications can raise the same problems as the concept of legal system discussed in the General Intro­duction above.^[842] However, one can speak of operative Jewish law, if one takes this to mean that there were (set) rules of Jewish law which appar­ently functioned as decisive rules at the time. The example of P.Yadin 10, adduced in the General Introduction above, shows that people could refer explicitly to Jewish law as the legal framework for their legal act.^[843] Consequently, Jewish law did apparently enjoy an operative, even a nor­mative status also before codification.^[844]

It is in any case possible to look at the rules of later normative Jewish law and see whether the practice in the documents already testifies to the working of these rules. Cotton proceeds along that line and discusses Babatha's position as mother of a fatherless child, from the viewpoint of later normative Jewish law. However, her conclusion that Babatha did not know the rules of later normative Jewish law, is apparently solely founded on her judgment that Babatha did not consider herself a guard­ian. Since Babatha nowhere explicitly discusses her own position this is hard to ascertain. Besides that, it is doubtful whether these papyri can give conclusive evidence as to the question of who could be guardian: the situation makes the evidence specific to this situation rather than applicable to general issues of guardianship. Nevertheless, it is obvious that the evidence of the papyri leaves room for the assumption that some sort of framework of rules, an operative law, existed, which, for example, caused two guardians to be appointed instead of one. This framework or operative law need not have been exclusively Jewish, as it may have borrowed or absorbed features from, for instance, Nabataean law, which practices are almost completely unknown to us.^[845] What is clear is that the evidence of the papyri allows for the interpretation that there were rules active at the time that determined matters of substantive law, while these rules were part of a non-Roman indigenous tradition, which man­ifested itself mainly on the substantive side of the documents.

The dispute about maintenance

Although the arrangements we find here seem to be rooted in indige­nous, perhaps even specifically Jewish legal practice, the whole situation is pervaded with Roman interference as the appointment of the person who should see to debts and maintenance ends up with a body within the Roman administration and even results in an official document con­cerning guardianship issued by this body.^[846] And even if the number of guardians or the choice of their nationality were matters that were not influenced by Roman law at all, it is clear that the functioning of the guardians was regarded as a matter to be judged by the Roman authori­ties: as soon as a dispute arises, Babatha turns to the Roman governor.^[847] This may simply have been a consequence of sole Roman jurisdiction, i.e. the lack of any other court to turn to.^[848]

In P.Yadin 13 Babatha turns to the governor explaining the (local) situation in her letter and making a request.^[849] Unfortunately we do not know what this request encompassed. P.Yadin 13 is in a fragmentary state, not only at the beginning where Babatha details the situation con­cerning the estate and Joseph's part in that, but also at the end where she probably suggested a solution or in any case made a request: line 27 pos­sibly reads ‘to ask of you' while of the following lines only a scanty ‘silver' can be read. Babatha may have requested more maintenance money or a turn over of the estate property like she suggests in P.Yadin 15. The first option is the more likely one, since Babatha is in P.Yadin 13 not concerned with proving that the guardians were fraudulent, while she is in P.Yadin 15. Chiusi argued that Babatha wanted the governor to fix the sum for the maintenance, an interpretation that fits with what can be read in lines 27-30.^[850] Chiusi then takes P.Yadin 14 and 15 to see to another, or in any case a separate, phase in the dispute: with the sum already fixed one of the guardians is found to have not paid at all and Babatha proceeds to sue this guardian. Admittedly, this would explain for the fact that only one of the guardians is addressed in P.Yadin 14 and not both. Nevertheless, it could be assumed that Babatha used the peti­tion to get a governmental go ahead in a case against both guardians. Norr discusses P.Yadin 13-15 as ‘vorbereitenden Rechtshandlungen für einen Prozess vor dem Statthalter der Provinz Arabia,' subject would be the amount of maintenance money paid.^[851] In another article he suggests that the governor might have ordered her to take the guardians to court, referring to a discussion of P.Yadin 25.^[852] In this discussion Norr suggests for the background of P.Yadin 25 (which is not a petition like P.Yadin 13, but a denuntiatio like P.Yadin 14) that

lulia Crispina (oder der Vormund Besas) hatte sich anscheinend mit einer Petition an den Statthalter gewandt und durch eine subscriptio die Anweisung erhalten, mit Babatha vor dem Statthalter in Petra zu erschei­nen...^[853]

Norr thus supposes that P.Yadin 25, comparable to P.Yadin 14, had also been preceded by a petition like the one we have in P.Yadin 13. This petition, he then continues, was answered by the governor with a sub­scriptio that indicated that the parties should take their adversary to court (at the next conventus).

If we assume that indeed the petition of P.Yadin 13 was answered with such a subscriptio I am inclined to believe we should not regard P.Yadin 13 as a separate piece (as Chiusi does) but as part of the proceedings that lead up to the court case envisioned in P.Yadin 14. Norr refers to parallels from Egypt to explain for the nature of the subscriptio that was probably an order to complete the requirements as referred to in P.Yadin 25: Norr speaks of

Erledigung der gesetzlichen Voraussetzungen (ta nomima). Wahrschein­lich bestehen diese in der Ladung zum conventus unter Angabe des Klag­grundes und der Aufforderung, beim Konventsort die Entscheidung des Statthalters abzuwarten.^[854]

This would come down to what we find in P.Yadin 14. Of course this does not solve the question as to why Babatha does not address both guardians in P.Yadin 14, but only one of them.^[855]

A subscriptio, as referred to by Norr, thus served as the governor's response to the complaint given in the petition. Norr briefly discusses a fragmentary text from second century Egypt that could provide a close parallel to P.Yadin 25.^[856] The text shows that a complaint is answered with a subscriptio that orders the writers of the petition to take their adver­sary to court. In doing so they will have complied with their side of the legal requirements. Applying the example of this Egyptian papyrus to our P.Yadin 13, this means that the petition to the governor of P.Yadin 13 resulted in a subscriptio that ordered Babatha to take her adversaries, the guardians, to court. P.Yadin 13 would then directly result in P.Yadin 14. What is interesting, is the question of what exactly the subscriptio of P.Yadin 13 would have said. The one in the Egyptian papyrus is very short, only indicating that the petitioners should take their adversary to court. There is not a single word as to the case at hand. Nevertheless, the idea of a subscriptio by the governor is interesting in the light of the questions as to why the actio tutelae is found in Babatha's archive and why three copies of it, in two different hands. As Norr repeatedly sug­gested that the actio found its origin in the provincial edict and a stan­dard translation of an individual actio could very well come from the governor's office,^[857] one could venture to suggest that at least one of those copies was sent to Babatha with her petition, when it was returned with the governor's subscriptio. If this was the case, then we have to assume that the way in which Babatha presented her case in P.Yadin 13 led the governor to believe that the actio tutelae would be applicable. This is obviously not the case if we assume that the case as presented was a dis­pute over maintenance money: this would, as Norr explained, amount to a cognitio extra ordinem and not to the use of a formula like the actio tutelae. Assuming that the governor's bureau supplied one of the copies, one could also assume that a local nomikos supplied another in prepa­ration for the actual suit (initiated by P.Yadin 14), or perhaps even at a later stage when Babatha was convinced that the actio would only serve her once her son would have come of age. I will come back to this in detail in my discussion of P.Yadin 28-30 below.

Accepting, with Norr and against Chiusi, that P.Yadin 13 was a peti­tion aimed at obtaining a governmental go ahead, we must assume that this go ahead was granted and led directly to the summons, found in P.Yadin 14, where Babatha summons one of the guardians, John the son of Joseph Eglas.^[858] As she complains about both of them in P.Yadin 13, it is not clear why the other guardian is not involved. It is said in lines 26­29 that he (i.e. John) has not given while the other guardian has given. What has (not) been given is not clear: did one of the guardians agree to a higher amount of money or did one of them stop paying? Chiusi takes P.Yadin 14 to see to a different matter than P.Yadin 13 (contra Lewis): Es geht hier nicht um die Fortsetzung der Beschwerde, die P.Yadin 13 wie- dergibt, wonach die Vormünder zu geringen Unterhalt leisten würden. Dort war Babathas Hauptzweck, dass der Statthalter den zu zahlenden Betrag festsetzen sollte, nicht aber, gegen jemand Klage zu führen... In P.Yadin 14 beklagt Babatha, dass einer der beiden Vormünder, Johannes, Son des Joseph, seinen Teil nicht bezahlt, während sein Kollege dieser Pflicht nachkommt. Es geht hier also nicht um die zu niedrige Hohe der an Babatha zu zahlenden Summe, sondern nur um die fehlende Zahlung des Mitvormundes Johannes.^[859]

Chiusi consequently assumes that the court case was to be conducted against one of the guardians. The matter of dispute is not further explained about, it is merely stated that John has to attend a court ses­sion, in the court of Petra on a certain day.^[860]

P.Yadin 15 is closely connected with P.Yadin 14, as both papyri were written on the same day by the same scribe.^[861] Following the summons of 14, Babatha in 15 proposed a settlement. This proposal is directed at both guardians, while she only summoned one of them in P.Yadin 14.^[862] Babatha states that the guardians do not provide the orphan with suffi­cient money for maintenance, sufficient regarding the ‘income from the interest on his money and the rest of his property' and the lifestyle that would befit him.^[863] Babatha then proposes to take over management over the money providing the guardians with a mortgage on her own prop­erty for security. She would then pay interest on the money to maintain the child from, thrice the amount the guardians provide her with. Refer­ring to ‘the most blessed times of the governorship of Julius Julianus'^[864] she almost casually mentions the summons she has made to one of the guardians to appear before this said governor. She then adds that if the guardians do not agree to her proposal the proposal will serve as evi­dence that they have been ‘profiteering from the money of the orphan.'^[865] At first sight it appears odd that P.Yadin 15 is addressed at both guard­ians, obviously intending to create evidence to use in an eventual lawsuit, while the summons of P.Yadin 14 was only addressed at John. However, it is likely both guardians had to decide upon such an important matter as transfer of the entrusted property, even if the evidence resulting from a denial would be used against John alone.^[866]

The transaction itself can be seen as a loan with Babatha providing security for it by way of a mortgage and paying interest that will be spent on the maintenance of the child, who is the owner of the money. But the real aim of the proposal is clearly the use Babatha can make of a refusal by the guardians. If they do not agree to this scheme which is profitable for the child, they will be accused of being self-interested. P.Yadin 15 is thus closely connected with P.Yadin 14 since it has to provide Babatha with evidence she can use in her court case.^[867]

The deal Babatha wants to make appears to be rather singular: ‘Wolff observed that this formulation does not have linguistic parallels in the Greek evidence.'^[868] It has been suggested she was really after obtaining guardianship herself, but this has already been plausibly refuted.^[869] After all Babatha nowhere says that she wants to become a guardian—perhaps she can even considered to be (de facto) guardian^[870]—and it is doubtful whether the deal of P.Yadin 15 could ever suffice to make her one. The matter at issue here is not who should be guardian: Babatha had clearly accepted the appointed guardians, and P.Yadin 13 even leaves room to assume she asked for their appointment herself. The case presented in these papyri is a matter of mismanagement of property.

Chiusi discussed Babatha's proposal in the light of later Roman law pointing at several legal sources, where a comparable situation is described:

Eine Mutter begehrt die Verwaltung des Vermogens ihres Kindes und bie­tet zu diesem Zweck den Vormündern als Sicherheit ihr eigenes Vermo­gen an, ohne aber eine rechtliche Befugnis in Anspruch zu nehmen.^[871]

She notes that an offer like this is to her knowledge only known from Roman sources, although Wolff had previously argued that Babatha's behaviour here was incomprehensible. The latter conclusion was proba­bly prompted by Wolff's assertion referred to above that the phrases used here have no parallels in Greek papyri. Indeed, the idea that Babatha's offer was modelled on a Roman practice, seems plausible, as the entire suit against the guardians seems to be set against a Roman legal back­ground, including Roman rhetoric as referred to above^[872] and recourse to a Roman legal actio, to be discussed in detail below.

A few specific points of Chiusi's interpretation are important to mention.

Transferral of the property as envisaged in the Roman sources she quotes does not mean transferral of guardianship, as the guardians remain liable towards the ward.^[873] This would fit in with the situation found here, where Babatha is obviously not after guardianship. It also leaves room for use of the actio tutelae against the guardians once the ward has come of age.^{[874] [875]}

If indeed as Chiusi claims the deal described here is only found in Roman sources, it seems like Roman substantive law did have an influ­ence here. However, as Chiusi rightly observes, as all the Roman sources adduced

are 100 or 150 years later than P.Yadin 15, it is difficult to regard this as evi­dence for Roman influence. One could argue that in those cases the pro­vincial practice was adopted by Roman law. In view of the Roman sources in which the mother's administration of or influence on the administration of the child's property is revealed, Leopold Wenger had already assumed this sort of movement from the provinces to Rome with respect to Greek papyri from Egypt dealing with the assumption of guardianship and the administration of a ward's property by the mother or the grandmother. Nevertheless, the question of mutual influence cannot be answered with mere chronological arguments. Roman sources from the first century onwards attest the tendency to hand over the administration of the ward's property to the mother, both by de facto approval of her administration and by appointment of the woman as heir under a fideicommissum⁹

As reasons for the development in Roman law Chiusi adduces social and judicial factors that contributed to liberation of the position of women. What is interesting there, is that both her examples, the solution of the agnatic bonds at the end of the Roman republic and liberation from tutela mulierum, see to guardianship of women. As women became accepted as capable of administering their own property they also became accepted as capable of administering their children's property (albeit apparently on security of their own property towards the guardians of the child concerned, that is, not as a real guardian). Chiusi also notes that where in Hellenistic practice a mother could administer the property of her children, a Roman influence caused the mother to adopt another role, that of the snaKoXou0f|Tpia, next to a real tutor. There again the mother has a certain part but specifically not under a title that Roman law forbids her to hold. As Chiusi observes, this could be interpreted as an influence of Roman law on Hellenistic practice. Consequently, she argues that no easy answers can be provided as to the influence of one legal system upon another.^[876] This is certainly true, but the adduced relationship between developments with regard to guardianship of women and developments in a mother's guardianship of a minor's property may be able to provide some clues. As has been observed by Cotton, it is likely that the refer­ence to guardians of women in the Greek papyri represent a concession to the court context for which these acts were intended, i.e. the court of the Roman governor.^[877] However, this concession is found in papyri from the second century CE, while Chiusi pointed out that already in the first century a change with respect to the mother's position had begun under the influence of gradual liberation from the tutela mulierum. Indeed, when one takes into account in which cases tutela mulierum no longer applied, one has the impression that guardianship of women was not a very actual legal issue anymore.^[878] Still we do find guardians of women prominently in our papyri, also in the same papyri where the matter of guardianship over a minor's property is at issue: Babatha can make the offer registered in P.Yadin 15 but only in the presence of her guardian. Therefore, it seems difficult to assume that the liberation of the tutela mulierum and the acceptance of a woman as administrator of her child's property were related in this provincial context. Apparently, formal demands were maintained rigidly: no immediate effect of developments in the tutela mulierum can be discerned. Consequently, no interaction with substantive law can be expected: where in Rome liberation of the tutela mulierum prompted acceptance of women as administrators of their children's property, such a development would not be possible in the provincial context. Therefore, the proposal as found in P.Yadin 15 is not likely to have been based in Roman law, but rather has to have indigenous roots. Indeed, Babatha's substantive position can be better explained for by looking at local law: if she was indeed de facto guardian of her minor son she could easily request to be allowed to administer the property too. In this context I refer to Chiusi's observation that P.Yadin 15 reminds one of a satisdatio." As Chiusi remarks, this satisdatio can only be given by a co-guardian, not by a third-party non-guardian (like a mother). But if, as I presume, in local law the mother held a posi­tion comparable to that of a co-guardian, an act aimed at the satisdatio would be logical. In fact one can wonder whether the idea of accepting a mother's pledge as a sort of satisdatio does not come from the prov­ince where mothers held positions as co-guardians. Babatha's position as co-guardian would also enable her to use the actio tutelae against the guardians herself (instead of, as suggested by Chiusi, keeping it until her son was of age).

The actio tutelae

P.Yadin 13 mentions that the guardians paid too little maintenance money, but it does not suggest there was any malignant purpose on their part behind this. Babatha's purpose seems to have been ensuring the receipt of more maintenance money, to allow her to raise the child com­mensurate with the extent of his property.^{[879] [880] This contrasts sharply with the twist in P.Yadin 15, where the guardians are confronted with a pos­sible accusation of fraud in managing the property. Babatha does com­plain about the low level of maintenance money supplied to her, even using the same expression as in her complaint in P.Yadin 13,[881] but this only makes the turn to the supposed embezzlement all the more surpris­ing and incomprehensible. What did Babatha really want to achieve with this lawsuit? The answer might be found by looking at P.Yadin 28-30.}

Although these texts are not dated (and were therefore placed at the end of the archive rather than closer to the connected P.Yadin 12-15) it seems obvious to relate them to the matter at issue.^[882] The papyri present in more or less damaged form three identical copies of the same text, reading, and I cite this in full:

Between plaintiff X son of Y and a defendant A for up to 2500 denarii there shall be (local?) judges. Since A son of B has exercised the guardian­ship of orphan X, concerning which matter the action lies, whenever by reason of this matter A is obligated to give or do something to X in good faith, the judges shall award judgment against A in favor of X up to 2500 denarii, but if [such obligation] does not appear, they shall dismiss.^[883]

The Greek text presented here is as Lewis has pointed out clearly a trans­lation of a Latin formula for an action based on good faith (actio bonae fidei, or ex fide bona). An example of such an actio can be found in Gaius, Institutiones 4.47.^[884] There deposit is concerned, but the idea is the same: if A is responsible for giving or doing something to X in good faith, the judges will condemn him to do so.

Lewis does not explain what he means by ‘local?,’ but it can be assumed that he thought of iudices peregrini, like the first editor of the papyri.^[885] Norr has plausibly argued that not iudices peregrini, but recuperatores were meant. He envisages

a label of judges, probably containing also the names of peregrine judges. By means of reiectio and sortitio the judges for the concrete lawsuit were chosen from it. We do not know how this label was drawn up. A census is plausible. Neither do we know whether the boule of the city of Petra partic­ipated in drawing up this list. Certainly the province of Arabia was not as yet much romanised in the period of the Babatha archive. Therefore, non­Romans are likely to have participated in the governor’s jurisdiction.^[886]

In another article Norr observed that there is no evidence for participa­tion of recuperatores in the actio tutelae procedure in Rome, but it could be a particularity of provincial procedure.^[887] What is interesting for the present investigation is Norr’s observation that the Greek version here is probably an authorised translation from the Latin provincial edict, provided by the governor’s office or a local nomikos, law expert.^[888] In this respect it is remarkable that the archive does not contain one copy, but three, in two different hands: P.Yadin 28 and 29 are by the same hand, P.Yadin 30 by another.^[889] It seems that Babatha was supplied with several copies, which all contained exactly the same text.

The presence of these formulae in the archive raises considerable problems. At first sight the purport of the text is perfectly in tune with the evidence found in P.Yadin 12-14. If A exercises guardianship over X and he is liable to give or do something, the judges can condemn him to give or do this. The fact that the guardians were indeed guardians of the boy concerned is proven by P.Yadin 12. Their obligation to give is in a way given by their appointment, but it is explained in P.Yadin 13 where it is said that someone was to be appointed to see to the debts and pay the maintenance money for the orphan. P.Yadin 13 states as well that the appointed guardians have not given the maintenance money, at least not enough of it. P.Yadin 14, the summons to the court case, states this again. Consequently, P.Yadin 12-14 seem to contain all the evidence Babatha needed: proof of the guardianship, proof of an obliga­tion to provide maintenance and proof of default in meeting with this obligation.

However, the actio is supposed to be brought by the orphan himself (X). In Roman law it was indeed the case that complaints about guard­ianship could only be initiated after the guardianship had ended. This was usually when the ward had come of age. In the present case we see a mother initiating the act, during guardianship. This means that it is doubtful whether Babatha could use the actio tutelae in her case against the guardians. Cotton suggested that another act is more likely to be brought by a mother, namely the crimen suspecti tutoris.^[890] That act was specifically aimed at abuses of guardians in their management. Cot­ton mentions several texts from the Digest and the Codex that make it clear that such cases were judged by the provincial governor and that an untrustworthy guardian could be removed from his post.^[891]

It is said in C. 5.50.1 that the ward can approach the provincial gov­ernor, leading to the same problem as discussed for the actio tutelae above, but Cotton rightly refers to Dig. 26.10.1.7 where it is said that even women can bring a charge of untrustworthiness ‘but only those who take this step as a family duty, as, for example, a mother.’^[892] Obvi­ously, the crimen suspecti tutoris was the charge a mother could bring during minority of her child. It is important to note the caution called for by Kaser that this may have only applied to the tutor testamentarius, not to a tutor appointed by the magistrates.^[893] However, if we accept that the claim applied to appointed guardians as well, Babatha could bring the claim in her position as mother, based on her family duty towards her son.

The crimen suspecti tutoris had to be brought against a fraudulent guardian, thus a guardian who harmed the interests of the ward on purpose, to enrich himself. It seems that this is what Babatha argues in P.Yadin 15 when she states in the final lines that a refusal of her pro­posal will serve as proof of the guardians' profiteering from the orphan's money. Consequently, the evidence provided by papyri 12-15 (a mother bringing charges and a clear accusation of fraud) points in the direction of the crimen suspecti tutoris. Nevertheless,

the presence of these documents [P.Yadin 28-30, JGO] here is disconcert­ing; the legal proceedings and remedies envisioned in them are quite dis­tinct from those of the crimen suspecti tutoris, so far discussed.^[894]

The actio tutelae covered all cases in which a guardian did not do what he was obligated to do or give, apparently without supposing any malig­nant purpose on the guardian's part. Consequently, the act was directed at having the guardian condemned to do as he was obliged to do, with­out any malevolence on his part having to be proven. We are thus left with two concepts that seem ultimately incompatible.

Several solutions have been suggested for this problem. Of course, it is possible to assume that Babatha simply prepared the wrong actio for her case. This is unlikely regarding the probable source of the formulae found in the archive: as Norr argued, Babatha was probably supplied with the formulae by a legal expert or even by the governor's office, and would not have easily received the wrong actio.^[895] Norr further observed that Babatha's claim for more maintenance could have been covered by a cognitio extra ordinem, which could have been set off by the petition she directed to the governor in P.Yadin 13 and the summons of P.Yadin 14.^[896] Therefore, the presence of the actio tutelae in the archive suggests that it was to be used at some point in the procedures. Norr suggests an inter­esting combination of the crimen suspecti tutoris behind P.Yadin 15 and the actio tutelae found in P.Yadin 28-30: Babatha as mother could have the guardian removed from his office and the other guardian or a newly appointed guardian could then bring the actio tutelae.^[897] This could be an explanation for the fact that Babatha sues only one of the guardians in P.Yadin 14. Admittedly she does address both of them in P.Yadin 15.

Another possibility is that the actio tutelae was intended for the moment when the guardianship would end: either at Jesus' coming of age,^[898] or at the death of one of the guardians.^[899] We know from P.Yadin 27 that some seven years later the son of one of the guardians had taken his place as guardian. This could indicate his father had died.^[900]

Of course we cannot be sure why the guardianship of the father ended: he could just as well have been removed from his office. This could have been the consequence of a crimen suspecti tutoris charge by Babatha (as envisaged by P.Yadin 15).^[901] Whether the actio tutelae was then ever used against him (or his heirs), cannot be gathered from the evidence in the archive.

To sum up: to be able to understand the evidence of Babatha's legal steps supplied by the documents P.Yadin 12-15 and 28-30 it is obvious one has to assume that the actio tutelae was meant to be used in a sec­ond phase of the proceedings. Either Babatha prepared to bring the cri­men suspecti tutoris, where the guardian's death intervened and she was supplied with the actio tutelae instead, or she expected to use actio tute­lae after a successful removal of the guardians from their office. In the latter case the actio had to be brought by a co-guardian, and that could be the reason why Babatha sues only one of the guardians: once he is removed, the other one can sue him. Babatha could also have intended the brother in law Joseph to sue the guardians once they (or just one of them) were removed from their office. It can be doubted, however, whether the relationship as understood on the basis of P.Yadin 13 can have been good enough to allow for that, or whether Joseph, who never provided any maintenance for the child himself, would see the need for it.

Assuming Babatha could be considered the boy's guardian (de facto guardian on the basis of Jewish law), one wonders whether Babatha could have tried to have the guardians removed from their offices by a crimen suspecti tutoris charge and then sue them herself with the actio tutelae. As observed by Norr, a guardian who was removed from office could be sued by a co-guardian or a new guardian appointed in his stead. Of course it is uncertain whether Babatha would have been recog­nized in her position as co-guardian. Seen against the context of P.Yadin 13 though this is not impossible: there it appears that the situation was more complicated than simply that of a ward with two appointed guard­ians. The guardians were appointed at a later time, probably following an arrangement between Babatha and her brother in law. Perhaps it can be alleged that this situation (and the appointment of the guardians as co-guardians, for supervision of the estate) would have led to recogni­tion of Babatha's position. In this context I refer once more to Chiusi's observation that P.Yadin 15 reminds one of a satisdatio (rem pupilli sal­vam fore), an instrument ‘conceived for a co-guardian.'^[902] If Babatha held a position as (co)guardian under local law her proposal might have been viewed in that light.

Contents and formalities

It is surprising to find a Greek version of a Roman formula in a fam­ily archive from a province which had but recently been subjected to Roman rule.^[903] Cotton has furthermore discussed the Roman flavour of the other documents, especially P.Yadin 15, drawing attention to the phrases ‘the most blessed times of the governorship of Julius Julianus' and ‘the style of life which befits him,' i.e. the child.^[904] This latter phrase seems to express the same sentiment as can be found in Roman legal sources where guardians are admonished to pay maintenance money that is in accordance with the rank and resources of the ward. This leads Cotton to conclude that

whoever composed the document was familiar with Roman turns of thought and sentiment, and perhaps with Roman legal argumentation; he was certainly acquainted with the imperial propaganda of ‘these most blessed times.'^[905]

The question is of course whether the fact that the documents seem to draw on Roman sentiments and that Babatha obviously planned to use a Roman formula, says anything about the law behind the documents.

A formula is part of procedural law: the formula pertains to the perfor­mance of a court case, by explaining what steps will be taken in judging the case and/or indicating what kind of evidence needs to be brought. The formula may determine who can bring charges against whom (the pupil against the guardian), but it does not determine, for instance, who can be guardian. This is determined by rules of substantive law. Substan­tive law determines people's legal position, while procedural law deter­mines how they can proceed in case of a conflict. This means that the use of the Roman formula only points at formal application of Roman law: when turning to a Roman court one had to take this rule into account. The substantive law pertaining to the case, however, need not automatically have been Roman. This means that in a guardianship case Babatha could have been considered guardian when her own substan­tive law (Jewish law) had her become guardian. We can assume that this guardianship would have been accepted by the Roman court.^[906] In the present instance however, Babatha's guardianship is not at issue, since she does not act as guardian. Her position is that of the mother of the pupil, who wants to sue the appointed guardians. This raises the ques­tion of where Roman procedural law would put her. Strict interpretation of the actio tutelae excludes the possibility of application of this act by a mother like Babatha. This could explain her proposal in P.Yadin 15 and the implied applicability of the crimen suspecti tutoris. This charge could be brought by a mother and Babatha would then meet with the Roman formal demands to proceed in the case. Again this does not say anything as to her position on the basis of substantive law. It is possible to assume that Babatha would proceed (after having succeeded in having one of the guardians removed on the basis of the crimen suspecti tutoris) with the actio tutelae in her capacity as (co-)guardian of the child.

This means that the presence of the formula in the archive can show that the Roman governor's court in the province used Roman court pro­ceedings,^[907] but it cannot be taken to imply that the court judged cases substantively based on Roman law. This would only have been possible if the employability of the formula depended on Babatha's position deter­mined in Roman law.^[908] This is, however, obviously not the case here.

What the combined evidence does show, is that people turning to a Roman court were obliged to comply with the Roman formal demands.^[909] Apparently they had recourse to official sources of Roman

procedural law informing them on how to proceed in their case. The steps Babatha undertakes in her dispute with the guardians may have been dictated one by one by the strict demands of the actio applicable to her case: as Norr noted it is possible that removal of one of the guard­ians was intended as a first step towards having the other one sue him later. Therefore, Babatha had to summon only one of them, as P.Yadin 14 shows. Since P.Yadin 14 and 15 differ from P.Yadin 13 in steps envisaged or undertaken, I am inclined to believe that at least one of the copies of the actio tutelae found in the archive came from the governor's office, perhaps together with his reply to Babatha's petition (the go ahead).^[910] It would be interesting to conjecture that go aheads were accompanied by an applicable actio for the case, indicating the formal demands that had to be met with.^[911] Babatha must then have been advised by a local nomikos on the next steps: we can hardly imagine a local woman under­standing the implications of the actio tutelae. Regarding P.Yadin 25 and 26 Norr observed:

Wenn es richtig ist, dass das Ambiente der Babatha mit der Unterschei­dung verschiedener Interdikts-Arten umgehen konnte, so müssen wir bereits in den ersten Dezennien der Provinz Arabia eine recht intensive Praxis im romischen Recht voraussetzen.^[912]

What is fascinating about this in the light of the present investigation is that the only direct evidence of the applicability of Roman law in the archive is evidence of the applicability of formal law. There is no Greek version of, for example, any substantive regulation on guardianship. This contrasts sharply with the case of the family archive from third century Egypt, discussed above, where a rescript is found of Gordian dealing with illegitimate children.^[913] Such a rescript provides information on substantive law: if taken to apply to the case of Paulina, the rules in the rescript would determine whether Paulina is a legitimate child or not, and consequently, whether she can inherit her father's estate or not.^[914] The evidence from Egypt consequently indicates that here substantive Roman law played a part in the legal matter at issue. This is obviously not the case in the Babatha archive: The actio found there can only tes­tify to applicability of Roman formal law. All the other facts related to the case, whether manifested in the documents or inferred from them, indicate that the substantive side of the matter was firmly rooted in indigenous law.^[915]

This difference is all the more remarkable when one considers what Hanson writes in the opening lines of her article comparing Babatha's position with that of widows in Egypt:

Papyrologists who work with the Greek documents from Roman Egypt have found in Babatha and other provincials of the eastern Mediterranean confirmation for our belief that Egypt was by no means a unique province within the Roman system. The texts discovered in Palestine, Syria, and north-western Mesopotamia closely resemble the documents from Egypt and are similar in content—family papers concerned with property and inheritance, private letters, dealings with the Roman bureaucracy through the mechanics of the census, taxation, and military affairs.... The Greek in which they were written is also similar in palaeography, in morphology and syntax, in formulae, and in the habit of incorporating expressions and proper names from the various native languages that continued to domi­nate oral exchanges throughout the region.^[916]

However, despite all of these pronounced similarities in contents of the acts and diplomatics, there are major differences of legal importance that are apparently easily overlooked. Hanson touches upon the fact that both Babatha and Aurelia

retained copies of official Roman pronouncements that addressed the legal matter lying at the center of their struggles to safeguard the financial wel­fare of their children. Aurelia Sarapias retained the rescript of Gordian on the relation of a child’s registration to its legitimacy, and Babatha retained three copies, written out by two different hands, of a Greek version of one of the praetor’s actions dealing with guardianship of orphans (28-30, ca 125 CE).^[917]

Hanson does not register, however, that the presence of these ‘copies of official Roman pronouncements’ paint completely different pictures as to the legal situation: in Egypt substantive Roman law applied, in Ara­bia only formal Roman law applied. This means that while the presence of these documents appears to constitute a similarity between both archives, in reality this presence allows us to discern a marked difference where the applicable law is concerned. Another major difference that has been overlooked so far has been pointed out in Chapter 1: in Egypt the subscriptions to a legal act had to be written in Greek regardless of the language of the main document, while in our archives subscriptions are in Aramaic. This indicates that the language issue, the questions as to the use of one language as against another in legal acts and the implica­tions for (in)validity of those languages in legal acts, should be assessed differently for Egypt and for Arabia. These two examples indicate that the similarities that present themselves all too readily should not pre­vent us from looking closer for what might lie beneath.

The evidence from the archive that local law was adhered to in the legal acts suggests that this local law, as the substantive law for the legal act at issue, would be accepted by the Roman governor judging a case aris­ing from such a legal act. This assumption actually finds support in the Roman legal sources themselves.

In her treatment of P.Yadin 12-15 Chiusi adduces Dig. 26.2.26 pr. (4 resp.), which says:

Iure nostro tutela communium liberorum matri testamento patris frustra mandatur, nec, si provinciae praeses imperitia lapsus patris voluntatem sequendam decreverit, successor eius sententiam, quam leges nostrae non admittunt, recte sequetur.^[918]

According to our law a mother cannot be made guardian of the communal children by a will of the father, and if a provincial governor has decided in inexperience that the will of the father should be followed, it is not right for his successor to follow his verdict, which is not allowed by our laws.

Chiusi adduces the passage to show that the rule that barred women from guardianship was also applicable in a provincial situation: despite the previous verdict by a provincial governor, the new governor is not bound to it, because he has to effect the rule that women are barred from guardianship. Chiusi interprets the text as dealing with the ques­tion whether a provincial governor is bound to the verdicts given by his predecessor. Chiusi observes that at least for the period in which the first governor ruled the woman exercised legally recognised guardian­ship and could act accordingly, while questions remain as to the validity of legal acts undertaken in that capacity and liability towards the ward.

One can wonder, however, whether the text does not mean something else. Does it really purport to say that a governor should not follow the judgement made by his predecessor in case this judgment goes against Roman law, or does it say that if a governor follows a judgment made by his predecessor that goes against Roman law this is not right? The latter interpretation would denote that it did not only happen that governors made decisions that were contrary to Roman (substantive) law, but that their successors also tended to stick to them, which is then deemed not right. What the text thus shows is that cases were judged on the basis of a legal act adduced by the parties (the will of the father) while the out­come went counter to Roman (substantive) law.

Chiusi observed:

der Fehler des Statthalters konnte sich dadurch erklären, dass in seiner Provinz nach dem dortigen Rechtsgebrauch Frauen eine Vormundschaft ausüben konnten, die Anordnung des Testators somit dem dortigen Recht entsprach. Dies wäre bei ostlichen Provinzen durchaus denkbar, wie eine Reihe von Papyri belegt... Papinian war, da er die Eigenheit des romischen Rechts gleich zweimal betont (iure nostro, leges nostrae), die Verschieden­heit der Rechtsordnungen in diesem Punkt bewusst. Die Deutlichkeit, mit der er die romische Regelung einschärft, lässt auf den rechtspolitischen Willen, dass ius nostrum durchzusetzen, schliessen.^[919]

The governor judged a case according to the contents of the legal act, which as Chiusi assumes would have a basis in local law. This comes down to accepting that cases were in fact judged substantively accord­ing to local law. Thus we have here a passage from a Roman legal source that testifies to application of local (in any case non-Roman) law to the substantive side of cases.^[920]

The question is of course whether the text also says something about applicability of local law, that is, not about the actual application of local law, but about the desirability of this application. To the ques­tion whether a new governor should follow the verdict or not, Papinian answers to the negative, saying with much emphasis, as Chiusi notes, that Roman law does not allow it. Does this mean that applicability of non-Roman (substantive) law did happen but was not according to what the Romans wanted?

In this respect it is important to note that Papinian judges the first governor's choice to follow the will of the father as a mistake made in inexperience. This judgement should be taken with a grain of salt, I believe, if only because the passage itself leaves room for the interpre­tation that the new governor was inclined to follow his predecessor's judgement. Would he have been inexperienced as well? Additionally, one may observe that the position of governor of a province was usually not given to someone who was inexperienced, and that it is generally assumed that the governor was assisted by local experts.^[921] It seems that Papinian did his best to emphasize that even in the provinces Roman law had to be adhered to, while the actual situation was the opposite: local law or in any case the contents of the legal act at issue was followed by the Roman judge.^[922]

Excursus: did Babatha win her case?

What we are of course interested in, is knowing what Babatha achieved. Did she convince the governor that the guardians paid too little mainte­nance money? Cotton has pointed out that there is an early third-century account of a guardian which shows that for two children eight denarii were paid, ‘i.e. 4 denarii per child; twice as much as that provided for Babatha's son. Babatha might have had grounds for complaint.'^[923] Yet the evidence suggests that Babatha first had to prove that the guardians were fraudulent. Only after a successful removal of one of the guardians from their office could she have the other one use the actio tutelae to demand compensation for the insufficient maintenance money previously sup­plied. Could Babatha indeed convince the governor of the guardians' ‘profiteering'?

In most cases we cannot tell what the outcome of lawsuits has been. However, in the present case we can. There is a receipt for maintenance money in the archive, addressed to a new guardian of the child, dated to 132 CE, that is, some seven or eight years after the dispute of P.Yadin 12-15. The amount of money acknowledged to have been received there is exactly the same amount that was paid before, according to Babatha in P.Yadin 13: two denarii a month.^[924] Babatha seems to have been unsuc­cessful in her case.^[925]

The receipt is addressed to Shimon, ‘the hunchback,' the son of John son of Eglas. This is obviously the son of one of the guardians of P.Yadin 12-13 and 15, the same guardian specifically addressed by Babatha in P.Yadin 14. Babatha mentions in P.Yadin 27 that the city council of Petra had appointed him. The question is why he was appointed, apparently in his father's stead.^[926] The thought comes to mind whether John was found guilty of ‘profiteering' and was therefore dismissed. I do not think this is likely since in such a case one would hardly expect the son of the man concerned to be appointed to replace him. It is more likely that John the son of Eglas died^[927] and the council appointed his son to succeed him. The fact that the son pays the same amount of maintenance money the father did in any case suggests that Babatha had not been able to win her case. In what respect she failed cannot be judged since we do not know what claim she eventually brought.^[928]

The case of Judah’s nephews

The archive presents us with another instance of minors who obviously needed and had a guardian. These minors are the sons of the deceased brother of Babatha's second husband Judah.^[929] Jesus, the child concerned in the previous section, was Babatha's child by her first husband Jesus. He died and his brother obviously managed his estate affairs, at least until guardians were appointed or perhaps even after that. Here we are dis­cussing a later stage in family history covered by the archive, as Babatha has married her second husband Judah and is sadly widowed again. It does not appear that Judah and Babatha had any children together; Judah had a daughter Shelamzion from a previous marriage. Her posi­tion as (presumably) only child and the implications on the basis of law of succession were discussed in detail in Chapter 4.^[930] What concerns us here is the appearance of the sons of Judah's deceased brother, who have apparently got an interest in the estate affairs, to be dealt with after Judah's death. Above, in Chapter 4 on law of succession, I explained that the case as presented here, both in P.Yadin 20 and 23-25, shows that the sons of Judah's deceased brother were his legal heirs.^[931] On their behalf suits are started or settlements reached, by a guardian named Besas. This suggests they were minors at the time. We do not know how many sons there were, the documents in any case speak of orphans, plural.^[932] Neither do we know how Besas got appointed guardian, indeed we do not know whether he got appointed at all.^[933] Appointment of guardians may have been an unusual situation, or in any case one secondary to other options for administration of minors' interests.^[934] He might have been a relative of the orphans taking care of their monetary interests. However, this seems less likely in this case, since a close male relative would probably be a brother of the father and if such a brother existed he would have been heir to Judah's estate alongside the orphans. In any case, it is obvious that the archive does not reveal in what relation Besas stands to the orphans, or in what way he came to be their guardian. At his first occurrence in P.Yadin 20 he is merely designated as ‘guardian of the orphans of Jesus son of Khthousion,' i.e. guardian of the heirs to Judah's estate.^[935] Perhaps the fact that there is but one guardian could denote that Besas had become guardian by law and not by appointment. In any case, the specific circumstances of the appointment of P.Yadin 12, with (additional) estate supervision in mind, might have called for the naming of two guardians instead of one.^[936] This need not imply that in all cases two guardians were named. Indeed, in this instance, Besas is probably not some additional supervisor, but the original guardian, the legal representative of the minor orphans. Nevertheless, the matter is complicated by the presence of another person in Besas' company, who is designated with the title snioKonoq, ‘supervisor.' The term has no parallel in being a technical legal term of some kind and it seems likely it was chosen in this specific instance to mark off the position of this second person from that of the original guardian.^[937] Besas is an snirponoq, the second person an sniuKonoq. What makes the case all the more astonishing is that this second person is a woman, and one with a thoroughly Roman name: Julia Crispina. In P.Yadin 25 she is designated more specifically as a daughter of Bernicianus. All these clues point to a singular position, perhaps even one of authority.^[938] However, from a legal point of view it is completely unclear what this female supervi­sor is doing here. Assuming she was a Roman matron only makes her appearance harder to understand.^[939] Why is she involved in this law­suit between locals? Moreover, why does she hold a position that seems completely alien to Roman law?

To understand at least something of Julia Crispinas position we have to clarify what she is and is not. Lewis stated that ‘the technical distinc­tion between the terms snirponoq and eniuKonoq escapes us,' adding a few lines down that ‘perhaps she had to be given another title because only a man could be named an enirponoq (= Latin tutor); or perhaps, as G.W. Bowersock suggests to me, her title, as a Roman citizen, was superior to that of Besas.'^[940] Nevertheless, Lewis assumes that Julia Cri­spina ‘was, to all intents and purposes, one of the two guardians of the orphans, Besas being the other.'^[941] This means that Lewis assumes that even though Julia Crispina was named snioKonoc; her actual legal part was that of an snirponoq. This seems unlikely as the problem is not just in the use of the term snirponoq for a woman, but in the fact that Roman law completely barred women from the exercise of guardianship.^[942] If the Roman legal background here dictated that Julia Crispina was desig­nated ènioKonoc because she could not be named snirponoc, that same Roman legal background would ensure she could not effectively be a guardian either. Whatever the title bestowed unto her, under Roman law a woman could not exercise the powers of a guardian.^[943] This shows from the mere fact that a different title is allotted to her, but it can also be seen from her behaviour that differs from that of Besas. In P.Yadin 20 where she appears alongside him her declaration is different, even though in the main text of the document a plural is employed to refer to what both Besas and Julia Crispina are said to acknowledge.^[944] Where in the closing declarations Besas makes explicit statements acknowl­edging that ‘I will act and clear the title according to all that is written above' Julia Crispina only acknowledges that she has ‘conceded accord­ingly.'^[945] In her statement she repeats the title allotted to her, obviously emphasizing her supervisionary status. It seems that she does not have to make the same declaration Besas does, but only has to agree with it. This opens interesting possibilities for determining her position: did she in some way have an interest in the estate at issue? Why else would she be involved in (settlement of) claims that concern this estate?

Furthermore, in P.Yadin 25 Julia Crispina acts on her own, actually summoning Babatha, but she explains that she is only doing this, because Besas is ill and cannot perform these legal formalities himself.^[946] This explanation seems to serve the purpose of a justification of her behav­iour, suggesting she would normally not be allowed to act without Besas' presence or maybe would not act at all. As appears in P.Yadin 20 Julia Crispina could leave the dealing to Besas, while all she had to do was sign her agreement on it. However, in the instance of P.Yadin 25 Besas was ill and Julia Crispina pursued the case without him, apparently act­ing in his stead and possibly covered by his authority.^[947] Precisely these facts show that Julia Crispina did not hold the same position as Besas did and that she was certainly not a guardian like he was. Both her for­mal position and her actual behaviour have to be covered by other terms and other reasons.

Even if we assume that Julia Crispina served another, perhaps sec­ondary, function alongside Besas, it remains to be asked why a woman served this function. Cotton has contrasted Julia Crispina's position with Babatha's situation. Babatha, the mother of the orphan, does not appear to have any influence on the estate affairs concerning her minor son, while this woman, whose relation to the orphans concerned is unclear, holds a position of some authority.^[948] I think this fact in itself shows that it was not impossible for women to be involved in estate affairs, but that this was not self-evident. Even though Babatha is the minor's mother and concerned with his upbringing it is nowhere sug­gested she can wield any control as regarding the estate. On the contrary she seems to be opposed to those controlling it, while Julia Crispina is on the same side with the guardian of ‘her' orphans' property. I think it most likely to assume that this difference follows a difference in posi­tion, not towards the child(ren) concerned, but towards the estate. The reason that Julia Crispina is a supervisor, while Babatha is an outsider, must be, in my opinion, that Julia Crispina had personal interests in the estate. Julia Crispina appears in those instances where the substance of the estate is at stake: in the case against Shelamzion and the case against Babatha. Both concern questions as to whether outsiders, not heirs, are holding property that belongs to the estate. When the right of such an outsider is confirmed Julia Crispina has to sign her agreement on it. Furthermore, if Besas is unable to continue his lawsuit against Babatha Julia Crispina does so on his behalf. Note that she did not partake in the original summons of P.Yadin 23 (nor in related P.Yadin 24), which suggests that Besas could sue on his own. It seems likely that Julia Cris­pina only had to confirm eventual settlements like the one in P.Yadin 20. Only from this angle of a personal involvement on Julia Crispina's behalf is it understandable that Julia Crispina is involved in dealings concerning the estate and can even partake in the lawsuit if Besas is not able to do so. In that latter instance we wonder whether Julia Crispina is pursuing the case as supervisor, as secondary to Besas, or on her own behalf focussing on her own personal interests in the outcome of the case. The material does not permit us to make a proper judgment on that point, but I draw attention to Julia Crispinas response to Babatha's countersummons in P.Yadin 25. Babatha tries to initiate another suit, to take place in Rabbath Moab, focussing on her complaint about Besas' suit. However, Julia Crispina refers her back to the original suit (based on Besas' summons of P.Yadin 23 and related 24), saying ‘if you have any complaint against me you have the option of attending the guardian of the said orphans before the said Nepos.'^[949] This means that Julia Crispina redirects the matter to the original questions at issue, Babatha's reasons for holding property that was not hers, but her deceased husband's, and indicates that any complaints should be dealt with in that context. She explicitly refers to Babatha attending the guardian of the orphans, that is, Babatha has to address the guardians of the orphans and not her. This suggests that Julia Crispina's part in the matter is indeed secondary, she stands in for Besas at the moment he cannot pursue the case further, but as soon as he will be able to do so, Julia Crispina will disappear behind him again. This could imply that any possible personal interests on Julia Crispina's part did not make her into a separate party in the suit. Babatha is dealing with the guardian of the orphans-heirs and only in second instance or by way of replacement with Julia Crispina.

Julia Crispina may have been a family member of the orphans, per­haps someone who was taking care of them, as part of her household. The term supervisor could then be understood to be another term for the enaKoXouBqrpia known from Roman Egypt. John Rea has explained that the term enaKoXouBqrpta is used for women who have some kind of authority over orphans and could be seen as guardians.^[950] Obviously, they could not be called guardian (enirponoTh as Roman law barred women from exercising any kind of guardianship. Rea suggested that the snaKoXov0f|ipia might have been the indigenous answer to the demands of Roman law. A woman could be given a status comparable to a guardian, giving her some authority in the affairs of her orphans, while there was no clash with Roman law because no official guardianship was at issue. In this respect it is interesting that Montevecchi points out that the terms SnaKoXov0fipia and snirponoc do not overlap: after 123 CE there is no female snirponoc anymore, while the term SnaKoXou0frpia is attested only from the second half of the second century onwards.^[951] This does indeed suggest that SnaKoXou0frpia took the place of snirponoc to refer to a woman in a position of supervi­sion of orphans, possibly a concession to strict Roman law. The occur­rence of the term snioKonoc for Julia Crispina here could then be ‘the first example for such an adaptation of local custom, and another expression of Romanization.'^[952] It is in any case certain that the use of snioKonoc instead of snirponoc must have some kind of legally signifi­cant meaning.

Julia Crispina is an intriguing figure for another reason: even though she undertakes action, in acknowledging her agreement in P.Yadin 20 and summoning someone to court in P.Yadin 25 she is not accompa­nied by a guardian herself (as Babatha is when she acts in, for example, P.Yadin 14-15 and 25). Indeed, Julia Crispina has been said to be the only woman in the archive who is not accompanied by a guardian.^[953] This is not completely accurate, for Miryam, Babatha's adversary in P.Yadin 26, is not accompanied by a guardian either. Indeed, Babatha herself does not seem to have had a guardian present in P.Yadin 26; while the docu­ment was written on the same day as P.Yadin 25, where a guardian for Babatha is mentioned. This means that the obvious fact that Babatha acts with a guardian in P.Yadin 25 while Julia Crispina doesn't, can be counterbalanced by the fact that in P.Yadin 26 guardians are not men­tioned at all, neither for Miryam nor for Babatha. This means that Julia Crispina's position is not singular: apparently other women could also act without a guardian, in certain instances. This probably indicates that the principle of guardianship of women was not strictly adhered to. I will come back to this in detail below. Here it suffices to remark that Julia Crispinas position is not clarified by any detail the documents reveal about her and that her part in the legal dealings at issue remains obscure. Nevertheless, it can be said with certainty that she was not a guardian like Besas was: she is not called that way and she does not act that way. This means that the evidence coming from the case of Judah's nephews shows that guardianship of minors was a male affair.