II. Guardianship of a Woman Evidence pro and contra

Above I discussed that the evidence for guardianship of minors in ancient Near Eastern laws is minimal. The same applies to guardian­ship of women, which indicates that this institute was not known in those systems.

Pestman has drawn attention to the fact that documents concern­ing marriage and divorce were usually drawn up in Demotic and not in Greek. He suggests this might concern the better position a woman had under Egyptian law.^[955] This suggestion is also based on the assumption that the language of the documents determines what law was chosen to apply to it, this time obviously referring to substantive law.

This feature of bilingual family archives in Egypt could raise expecta­tions for the bilingual archives from the Judaean Desert, where we find the same situation: two possibly applicable laws, indigenous and Roman, that are different with respect to guardianship. Indigenous law did not know guardianship, women could make legal acts on their own, just like men.^[956] Roman law on the other hand demanded guardianship of women to make the legal acts by these women valid. What we would expect on the basis of comparison with the situation in Egypt is a difference between documents drawn up after 106 CE: no mention of guardians in Aramaic documents and mention of guardians in Greek documents. Indeed, in this respect, the Greek documents live up to expectations: a guardian is mentioned in P.Yadin 16, census declaration by Babatha; P.Yadin 17, Babatha as depositor; P.Yadin 22, Babatha as vendor of date crops, and P.Yadin 14-15 and 25, documents that are related to a lawsuit instigated by Babatha.^[957] The Aramaic documents in the archive give no clear-cut answers, as they mainly present us with male actors, which means there would not be a need for a guardian there.^[958] However, the mere fact that a guardian of women is introduced, as comparison of P.Yadin 2-3 and P.Yadin 22 shows, raises the question as to what this says about the legal system applicable to these documents. As Cotton phrased it in her introduction to an investigation of the guardian of a woman in the Judaean Desert documents:

What does the use of different languages tell us about this society? Does the use of one language, as against others, reflect no more than the diplo­matics of the documents, or does it reveal to us the coexistence of differ­ent legal systems within this society? It seems to me that the topic of this paper, the presence or absence of a guardian of a woman in a document, can profitably be used to address these questions.

The legal representative, the guardian of a woman, appears only in the Greek documents, and never in the Hebrew, Aramaic or Nabataean ones. What is the implication of this absence? That the legal system reflected in the Semitic documents did not recognize, or did not call for, the institu­tion of a guardian for a woman? In that case what legal system is reflected in the Greek documents?^[959]

The relationship between language and law as assumed here would come down to the same relationship as observed in the family archive from Egypt adduced above: language is directly indicative of the legal system reflected in the documents. With ‘legal system' Cotton obviously refers to the legal system or law that is applicable to the whole of the docu­ment: nowhere in her article, nor indeed in her articles in general, does a distinction between substantive and formal law play any part at all. Nevertheless, this distinction is of importance for understanding what is at issue here. In the situation in Egypt we have indications that the document's language is related both to the applicable substantive and formal law: a Demotic document does not present a guardian because this was not required under Egyptian (formal) law, but also refers to the more favourable position of women under Egyptian law, a matter of substantive law. Therefore, even in those cases it is clear that the fact that a guardian is present or absent need not necessarily denote that substantively the one system or the other applied; this has to be derived from other indications. As I have shown for the Judaean Desert mate­rial in Chapter 1 above, in the archives the language of a document is not directly indicative for the applicable law, and, in Chapter 2, internal references determine what the applicable law should be, rather than fea­tures like language. In Chapter 3 I proposed to use a division between substantive and formal law to get to understand the applicable law for these documents better.

If we take the presence or absence of a guardian as indicative for the law that is applicable to the whole of the document, as Cotton does in her article, indeed it appears that a different legal system is applicable to the Semitic ones than to the Greek ones. However, as I have shown in Chapter 2 and in Chapter 4 above, this is not the case: Greek documents still draw on local, indigenous law where the substantive side of the cases is concerned.^[960] Therefore, it is a priori not correct to speak of legal systems that are reflected in one kind of document as against another without being sufficiently specific about the meaning of the word ‘legal system.' Contrary to Cotton's assumption that is the basis for her article, the presence or absence of a guardian cannot be taken to indicate which legal system is applicable to the legal act as a whole. To illustrate this, I will discuss Cotton's article in detail.

Cotton discusses the various phrases used to describe the part of the guardian in the legal act. It appears that two phrases are commonly used, one denoting the presence of the guardian ‘in the presence of her guardian X' and the other suggesting a more active part on behalf of the guardian ‘through her guardian for this matter X.'^[961] The first phrase can be found in two instances in the Babatha archive,^[962] the second in five instances.^[963] In the Salome Komaise archive there are two instances where a guardian is mentioned, both merely recording the presence of the guardian.^[964] Cotton attempted to relate the phrases to the part the woman plays in the legal act, to see whether the position of the guardian is described differently depending on the woman's more active or more passive part in the legal act:

...he [i.e., the guardian] seems to be taking a more active part in those contracts in which the woman is the one in whose name the homologia is written or another kind of legal obligation is undertaken.

It appears, however, that sometimes in contracts of the first type (‘in which the woman is the one in whose name the homologia is written or another kind of legal obligation is undertaken') the formula of the second type (‘recording the presence of the έπίτροπος') is found.^[966] This means that there is no real dichotomy found, no clear-cut relationship between the part the woman plays in the legal act and the formula used to refer to the guardian.^[967] This is interesting because it denotes that the presence of the guardian in itself was important and therefore noted, but his actual part, dependent on the part of the woman in the legal act, was not decisive: ‘... the two formulae might have been used interchange­ably. If so, this further accentuates the minor role played by the guard­ian of a woman in these documents.'^[968] In a footnote to this remark, as further proof Cotton adduces ‘the rapid turnover' of guardians in the documents, that is, the appearance of a number of different guardians for Babatha (instead of one and the same guardian).^[969] I also note that the point where the guardian is referred to may vary: sometimes he is mentioned at the start of the document, right after the woman he is guardian of, is introduced, but at other times he is mentioned only in her subscription. This could also suggest that it was deemed important to mention him at some point, but that he had no real part in the legal act which would probably have required his introduction within the main text of the document.

Cotton concluded that

In view of the conspicuous passivity of the snirponoc; of a woman in the Greek documents, it would seem that his absence from the Semitic documents is just a matter of form and procedure required by the courts for which the Greek documents were intended. Which courts were these?... Does the presence of an snirponoc; of a woman show inconvert- ibly that the Greek documents were intended for a Roman court of law, and his absence from the Semitic documents that they were intended for other courts? In order to claim this we should have to prove that the Semitic documents too were written under Roman rule.^[970]

As Cotton notes, unfortunately the evidence is not conclusive to this point: documents are sometimes not dated, or are too damaged to ascer­tain whether a guardian was present or not.^[971] But what is more impor­tant is that by maintaining that documents that do not have guardians were presumably meant for other courts and trying to prove this point, the implications of the results of the survey for the Greek documents are ignored. Cotton's survey does reach the conclusion that the presence of a guardian of a woman in the Greek documents seems to be ‘a mat­ter of form and procedure required by the courts for which the Greek documents were intended.' I do not think anyone doubts that the Greek documents were meant for Roman jurisdiction, or to be more precise, the only direct evidence of jurisdiction in the area at the time is that of Roman jurisdiction. Cotton states:

One notices that all Greek documents in which a woman appears with her guardian both in Arabia and in Judaea, were written under Roman rule, and, as suggested above, under the influence of Roman law.^[972] Perhaps it would have been clearer to simply state that the only court mentioned in the archives is the court of the Roman governor. In that case the argument can simply run: the documents that were written with a Roman court context in mind present us with guardians of women.^[973] The next step should then have been, not to go and try to prove that Aramaic documents were meant for other courts, because they do not have guardians, but to explain why the Roman court context influenced the documents in just this respect. Chiusi remarked to the conclusions of Cotton:

I have the impression that the presence of a guardian seems to be a formal element, which has something to do with procedural matters. Whether this suffices for the hypothesis that the presence of an epitropos was required by the application of Roman patterns cannot be said with certainty.^[974]

Chiusi here touches upon the problem with Cotton's assessment: it lacks precision as to the exact meaning of ‘the influence of Roman law' and therefore cannot explain whether—and if so, how—the appearance of a guardian fits with possible Roman requirements. To be more precise one has to differentiate between formal and substantive law: the appearance of guardians of women is a concession to Roman formal law, which in itself need not denote anything as to the substantive law applicable to the acts. One can then conclude that the fact that guardians of women appear after the Roman conquest is a strong indication that indeed their presence was required by Roman law, that is, by Roman formal law.

Understanding the appearance of guardians of women to be a concession to formal law only is important for understanding the role the guardian plays in the material. Cotton also speaks of a formal role for the guard­ian, using the word formal in a non-legal sense, denoting ‘without con­tents.' This is proven by her repeated assertion that the formula used to describe the presence of the guardian is not related to the legal act at issue or rather the woman's part in this legal act. Therefore, it seems that the presence of the guardian is only recorded for completeness' sake and not because there is a direct relation with the legal act at issue. Of course this is only logical when differentiating between substantive and formal law: if the presence of a guardian of a woman is only recorded as a con­cession to formal law, there need not be any relationship with the legal act which is based in substantive law.

Furthermore, Cotton describes ‘the low profile kept by the guardian of a woman in the Greek documents from the Judaean Desert' as contrast­ing ‘sharply with that of the guardian of the minor.'^[975] This is comparing apples and oranges: guardianship of a minor is a matter of substantive law, guardianship of a woman one of formal law. Consequently, it is only to be expected that the two have completely different legal conse­quences.^[976] This is illustrated by the material in the archives: the minor needs a guardian, right after his father's death to see to his property. The guardian is the representative of the orphan(s) as for example Besas is of the orphans of Judah's brother. Besas represents the orphans and enters their claim. This is logical since a minor is not capable of making a valid legal act. What the documents that present us with a guardian of a woman show is that the woman herself is acting and the act is only validated by the presence (and the subscription) of the guardian. Obvi­ously no guardian was appointed: Cotton herself notes that Babatha acts with different guardians at different times. Therefore, it is methodologi­cally unsound to compare guardianship of minors and of women as it appears from the documents to draw conclusions as to the profile kept by the guardians and consequently, the more or less ‘formal' nature of the institution. One should indicate a priori that guardianship of minors and of women are two different things that can be expected to func­tion at different levels in the papyri and then illustrate this with the evi­dence from the papyri. The Babatha archive is perfectly suitable for this as guardianship of a minor and of a woman occur side by side in the same legal acts (P.Yadin 14 and 15) and are clearly being dealt with in completely different manners.

While Cotton observes that the low profile kept by the guardian of the woman contrasts with that of the minor, she observes that it ‘resembles that of the κύριος in the Egyptian papyri.' About this κύριος Cotton has explained just above that κύριος stemmed from an old legal tradition in which women could not own property and denoted that the κύριος was in a way the master or lord of the woman concerned.

With time women could and did own property and the κύριος was no longer the person in whose power the woman was. His function degener­ated therefore into that of an assistant of the woman in the performance of certain legal actions, mere lip service to an older legal system.^[977]

What Cotton does not observe here is that the κύριος in Egypt devel­oped from an institution with a substantive legal meaning to a remnant of such an institution. In this context one could speak of ‘formal' in the sense of ‘still present, but without actual meaning for the contents.' However, this is something different than formal in the sense of formal law. Therefore, it is not surprising that the comparison with the κύριος does not fit the instance of guardianship of women in the Judaean Des­ert material.

Cotton's comparison with the κύριος from Egypt seems difficult in terms of terminology, as Cotton herself acknowledges in the article: the guardian of a woman in the Judaean Desert material is not denoted with the term κύριος, but with the term έπίτροπος. Cotton quotes Wolff, who remarked:

έπίτροπος... kann sich niemals auf eine andere Person beziehen als einen Verwalter fremden Vermogens.^[978]

Obviously this denotes that the term έπίτροπος covers the guardian of the minor (who supervised the minor's property) but not the guard­ian of the woman (where no such supervision is at issue). Cotton then discusses Wolff's plausible argument that the use of a single term for both institutions has a link with Latin where the term tutor is used for both the guardian of a minor and of a woman. The use of it in the papyri would then stem from the use of έπίτροπος for tutor in proclamations of the Roman authorities and have no direct bearing upon the actual legal meaning of the institutions: the use of έπίτροπος for the guardian of the woman does not mean that supervision of property, as usually associated with the term, is meant. Cotton then argues that the Judaean Desert material used the term έπίτροπος under influence of the Roman terminology, while still referring to an institute like the κύριος, that is, to an institute with no real meaning anymore. The problem with this inter­pretation is that it is contradicted by two instances from the archives. Cotton mentions these in passing without noticing the implication of the cases for her argument. It concerns two instances where the guard­ian of the woman is not the husband, as in other instances,

for the obvious reason that P.Yadin 17 and XHev/Se gr. 65 involve the hus­band and wife as the two opposing parties to a contract creating a state of obligation between them.^[979]

This ‘obvious reason' overthrows Cotton's argument that the guardian of the woman in the Judaean Desert is anything like the κύριος: in a papyrus from Egypt where a woman sells land to a man that is also her guardian (κύριος), this man is opposing party in the legal act and guard­ian of the woman in the legal act at the same time.^[980] This means that in Egypt this was possible; there the guardianship of a woman was indeed no more than a formality without contents. The Judaean Desert mate­rial, however, clearly testifies to the opposite, as the examples adduced by Cotton herself show: the husband who is normally guardian is not guardian when he is opposing party in the legal act. This means that the conclusions valid for Egypt obviously do not apply here. Therefore Cotton's arguments that the position of the guardian is ‘formal' in the sense of the Egyptian κύριος cannot be maintained.

Of course this does not mean that guardianship of minors and of women is the same thing: above I already indicated the difference between them: they are matters of substantive and formal law respec­tively. Both are mentioned in the Latin proclamations of the Roman authorities to which Cotton refers: those

which demanded the representation of a woman in court by a guardian, and made provision for the nomination of guardians for orphans.^[981]

These examples are illustrative for our documents as it shows that the term έπίτροπος was indeed used in Roman proclamations for matters of substantive and of formal law and can likewise be used in our docu­ments to refer to an institution of a substantive nature (guardianship of orphans) and one of a formal nature (guardianship of a woman). An explanation for the difference between the two, the marginal role of the guardian of the woman in comparison with that of the minor, should then not be sought in the link with the guardian of the woman with the κύριος from Egypt, but in this difference between substantive and formal law. Because the presence of a guardian of a woman was only required by formal law, it need not have a relation to the legal act at issue, that is, no direct relation needs to exist between the description of the guardian's presence and the legal act concerned or the part of the woman in the legal act concerned. The guardian has to be present because his presence validates the legal act towards the other party, regardless of the exact contents of the legal act. His subscription can serve to prove this valida­tion, but his subscription does not represent the party declaration of the woman, that is, he is not her representative, but has his own role of vali­dating the legal act by his declaration. This can be seen in a case where the woman subscribes and the guardian subscribes as well: the woman's subscription is her party declaration, while the guardian's subscription serves the purpose of validation only.^[982] In cases where the husband is the other party he cannot be guardian at the same time, because this would go against exactly this part of being a guardian: see P.Yadin 17 where Judah, the husband-other party, makes his party declaration towards Babatha, with clear reference to the presence of her guardian. If Judah had been guardian in this instance, the declaration made towards Babatha's guardian would have been made towards himself. Obviously this would be unacceptable from a legal point of view.

It cannot be denied that an exact understanding of guardianship of women in the documents from the Judaean Desert is obscured by the different pictures the documents themselves paint. Although the pres­ence of the guardian seems to occur from an early phase onwards, this presence is sometimes conspicuously lacking. Lewis already remarked on the appearance of Julia Crispina without a guardian. He mistak­enly asserted she was the only woman in the archives who acts with­out a guardian:^[983] Babatha and Miryam do so too in P.Yadin 26. This is remarkable since Babatha does act with a guardian in P.Yadin 25, an act that is drawn up on the same day as P.Yadin 26. This means that the impression provided by the documents is that the practice of guard­ianship of women was by no means consistent. Instead of interpreting this as a sign of ‘formality' that is lack of real meaning of the institution as Cotton does, this should rather be seen in the complete picture the documents provide of a gradual not yet completed process of adaptation to Roman formal law. Indeed, it can be expected that so shortly after the Roman formal demands had been introduced not everyone complied with them.^[984] Perhaps the documents that do stick to them should cause more wonder than those that don't.

Two legal concepts?

An important point to be observed in the discussion of the use of terms for the guardian of a woman is that of the Aramaic terms. As Cotton observed in her discussion of the use of έπίτροπος instead of κύριος, the Aramaic environment did know two terms for guardian: for guardian of a minor Ν3ΊΌ3Ν, the Aramaized form of Greek έπίτροπος, and for guardian of a woman JHN, the Hebrew word for lord.^[985] Like κύριος, JHN indicates control over the property of the woman. This is not deduced from sources outside the archives, but from the archives themselves, where the Aramaic subscriptions to the Greek documents make this dis­tinction. One can argue as Cotton does that the presence of two terms in Aramaic and one in Greek indicates the influence of Latin terminology on the Greek: the indigenous scribes used one term for the two institu­tions following Greek terminology in translated Latin proclamations of the Roman authorities. I find this argument perfectly believable for the Greek side of the documents. But the other way around I find it more difficult to follow. As Cotton herself observes, the distinction in the Ara­maic subscriptions is remarkable because ‘the guardian of a woman is absent from the Semitic documents.'^[986] To put it even stronger, the east­ern laws did not know the institute of guardianship for a woman. This means that the use of p7N in the Aramaic subscriptions cannot draw on a indigenous legal distinction between guardians of minors and of women. And yet the fact that two terms are present proves that there was an awareness that the term snirponoq used in Greek covered two things that were not identical and not interchangeable. One gets the impression that p7N is the translation of enirponoq used for the guard­ian of a woman, in this specific situation of Roman influence, to express the difference. This shows that although the indigenous scribes indeed used one term for both institutions in the Greek parts of the documents, the same scribes were aware of the difference between the institutions covered by the single term and actually prompted subscribers to use the correct terms in their Aramaic subscriptions.^[987] Therefore, the doc­uments pertaining to guardianship of a woman do not only testify to an influence of Roman terminology and a development towards unity through terminology but also to an awareness of the differences between Roman terminology and local understanding, or more broadly, Roman and eastern culture.^[988] This awareness and the desire to put emphasis on the right elements in each part of a document is particularly illustrated in the case of P.Yadin 27.

The demands of formal law: the case of P.Yadin 27

Besides from showing Babatha lost her case against the guardians,^[989] P.Yadin 27 provides interesting details in that respect that it is written in Greek, with a subscription by Babatha in Aramaic, written for her by a guardian, while this statement is then again translated into Greek. This is actually the only instance where an Aramaic subscription and a Greek translation are found side by side: most documents have Aramaic subscriptions without translations and in documents which represent copies the original Aramaic subscriptions are left out and replaced by a Greek translation, styled as such.^[990]

Since Babatha could not write she has her guardian write for her.^[991] In the present case her guardian is one Babelis son of Menachem. In the Aramaic it is neatly said: ‘This is what Babeli the son of Menachem wrote.'^[992] The fact that he acted as Babatha's guardian is not mentioned. In the Greek translation of the statement, however, it is said: ‘through her guardian.'^[993] This is all the more striking since it is said in the opening lines of the papyrus: ‘being present with her as guardian and subscrib­ing for her.' Here a clear distinction is made between the two functions of Babelis: he is guardian and he will subscribe. In the Aramaic and Greek texts the two things are separated: the Aramaic text mentioning only the subscribing and not referring to Babelis being guardian at all, while the Greek text states that Babatha made the statement ‘through her guardian.' This of course implies a different legal outlook at the posi­tion of the woman. Babelis does not even mention that he serves as a guardian, for him the only thing worth mentioning is that he wrote for Babatha. This fact does not imply any relationship between the party and the subscriber, for subscription was done on behalf of the party, not from a specific legal position of the subscriber himself. The Greek state­ment, however, implies that Babelis had a more active part in the act: his subscription further validates the act (apart from Babatha's statement as such). We have thus first in the Aramaic a valid party statement that is said to have been written by another person, while in the Greek Babatha appears to act through another person. The phrase ‘through her guard­ian' is also used in the main text to denote the presence of the guardian. The impression is here that the guardian does not stress his own posi­tion, while the scribe in the Greek translation of the Aramaic statement does. Why did he not simply translate the statement, but deem it neces­sary to change the last part of the statement in his translation?

When we look at the two statements we also see that Babelis uses Jewish (i.e. originally Babylonian) designations for the months in the Aramaic subscription, while the scribe designates the months with Macedonian names. For the rest the statements are identical in contents. The change of the Jewish months to the Macedonian shows that the scribe changed things to match the usual formulation of documents.

Lewis has remarked that ‘months and days continued to be reckoned according to the calendar in use in each area during the pre-Roman period.'^{[994] [995] Further on, he says that ‘in the Babatha documents... the months and days are given by the Roman system, with consular dates, and by the Macedonian calendar (which was common to the whole area after its conquest by Alexander the Great)....'214 These remarks imply that the calendar in use in the area before the Roman conquest was the Macedonian calendar (‘common to the whole area after its conquest by Alexander the Great') and that this calendar was consequently used by the Romans. However, it is doubtful whether the Macedonian calendar was indeed used in the Nabataean kingdom. A recent study by Stern has argued that this was not the case:}

Before the creation of the Roman province in 106 CE, documents and inscriptions from the Nabataean Kingdom are dated with exclusively Bab­ylonian names of months. The precise nature of the Nabataean calendar is impossible to reconstruct; however, it is reasonable to assume that it was lunar and essentially equivalent to the Babylonian calendar, and that this legacy from the Persian period survived until the end of the Nabataean kingdom in 106 CE.^[996]

This means that, contrary to Lewis' remarks, the use of the Macedo­nian calendar in documents in the Babatha archive does not indicate a continuation, but on the contrary, a breach with the past. Therefore, it is important to see in what documents, related to what moment, this breach occurs.

In his book Lewis only discussed the Greek documents and for those it is true that the documents dated after the conquest use Macedonian dating. Therefore, it could seem that dating according to the Macedo­nian calendar coincided with the moment of the conquest. In that case the conquest would have influenced the legal documents in a direct way, by causing them to use a different way of dating (reference to other months). Yet study of the Aramaic material of the archive shows that this cannot be maintained. All Aramaic documents, whether in Nabataean or Jewish, whether dated before or after the conquest, use Babylonian dating.^[997] This indicates that the use of certain names for the months, the method of dating, was not clearly linked to the conquest. Even after the conquest Aramaic documents continued to refer to Babylonian (instead of Macedonian) months. This means that the Aramaic documents pres­ent continuity instead of change. This is interesting because we have seen in Chapter 3 that from a legal perspective the Aramaic documents before and after the conquest show the same tendencies (for example for reference to the applicable law). I explained there that there seems to have been a continuous legal tradition that was clearly not interrupted by the conquest as such. Only after a certain period in time is there a breach, a breach that coincided with the use of Greek for documents.

Considering the dating of documents we see the same thing: there was a continuity in the method of dating which was broken off at a par­ticular moment, which coincides with the use of Greek for legal docu­ments. This combined evidence suggests that the conquest as such did not immediately affect the way in which legal documents were written, neither externally (language and dating) nor internally (reference to law). Only after a certain period of time (about twenty years) do external

and internal features change: the language changes to Greek, for dating Macedonian months are used instead of Babylonian and internally ref­erences to law are made in another way (even based on another system: the prior distinction between general and specific law no longer applies and instead the documents seek to adhere formally to Roman law, while they obviously use the substantive law of the parties).^[998] This latter devel­opment, or the internal change, has, in my opinion, directly caused the other: because the documents sought to adhere to Roman law where for­mal matters were concerned, language and method of dating were also adjusted. This assumption, based on the relation of Babylonian dating with indigenous law and Macedonian dating with Roman law, is sup­ported by the evidence found in P.Yadin 27, where the scribe is clearly not only translating the Aramaic statement in Greek, but also changing it to meet with certain demands: he uses Greek, adjusts the dating and emphasizes the presence of a guardian.^[999] This shows that scribes did not merely copy the text in another language but that they actually tried to capture the meaning and tried to strive for the best understanding of the text. In this light, the change of the latter part of the statement is all the more significant. Apparently the scribe thought it necessary to stress that Babelis was Babatha's guardian, rather than mention that he wrote for her. Of course from a Roman point of view the validation of the legal act by the presence of the guardian would indeed be more important than the solution for illiteracy. Thus the papyrus shows that there was an awareness of the demands the Roman legal system made on non­Roman parties acting and this awareness was voiced in the Greek part of the documents.^[1000] Obviously, this awareness concerned matters of formal/procedural law.