III. Conclusions

The matter of guardianship in the papyri presents one of the most obvi­ous examples of a difference between the external impression the papyri give of what law is adhered to and the internal evidence.

Nevertheless, contrary to Norr's tentative suggestion that cases were judged according to Roman law, the evidence in the documents them­selves does not bear out that Roman law is indeed adhered to in these papyri. The appointment of the guardians should be seen in the light of the special circumstances of the case, where additional supervision of an estate was wanted. The appointment is clearly not directly related with the Roman practice of tutela minorum, which saw to guardianship of minors directly following their father's death.

The only direct evidence that Roman law was in any way applicable to the case is the presence of the actio tutelae in the archive. However, while the presence of this actio does say something about the availability of Roman legal instruments in a recently subjected province, it does not imply that the local populace was in any way familiar with Roman law: as argued by Norr, it is likely that the actio came from an official source. It is possible in my opinion that the actio was sent to Babatha by the governor in reply to her petition of P.Yadin 13.^[1002] It is unclear what role the actio has played in the dispute: it seems likely that several steps were envisaged and the actio would become relevant in a later phase.^[1003]

Regardless of the exact part of the actio in the dispute of Babatha and the guardians, a firm conclusion can be drawn as to the evidence the actio gives for the applicable law. The presence of the actio tutelae only indicates adherence to Roman formal law, not to Roman substantive law. In that light, the contrast is striking with an archive from Egypt where a copy of a rescript is found about the relationship between registration and (il)legitimacy of children. As Hanson observed, both this archive and Babatha's archive contain copies of official Roman legal material, but what she did not register is that the meaning of this is completely different in both instances.

In this light it is important to note that in the Roman legal sources applicability of local substantive law is attested: Dig. 26.2.26 pr. (4 resp.) presents a legal problem ensuing from a provincial governor's judgment of a case according to local law. Where a father named the mother as guardian in his will, a governor accepted this will, although it was con­trary to Roman law. In that case, it was not right for a successor to fol­low the verdict of the first governor. Chiusi adduced this text to show that the Roman ban on women exercising guardianship also applied to the province, emphasizing the repetition in the text of ‘our law(s)' as opposed to the situation arising from acceptance of the will. She sup­posed that the will followed local custom or law, which would imply that the text shows awareness of the existence of several possibly con­tradictory laws. This awareness then amounts to an attempt to establish Roman law as the law that should be followed, an attempt associated by Chiusi with a political purpose.^[1005]

The question is whether this text should be read as an indication of the applicability of the ban on women exercising guardianship in a pro­vincial context, as Chiusi does, or rather the other way around, as an indication of the application of local law by Roman governors. A sharp distinction should be made between the actual situation described in the act (which represents a real case) and the ideal situation proposed in the reply.

What this text tells us about legal reality is that Roman governors judged cases according to non-Roman substantive law. Obviously this practice is not looked upon favourably, as it is not only condemned, but the decision of the first governor is also described as ‘a mistake made in inexperience.' However, in general governors were not inexperienced, not to mention the accepted notion that local law experts assisted them in their office. Therefore, it seems that this text presents us with a sharp contrast between legal reality described in the problem and a legal ideal captured in the answer. Roman governors should not judge according to local law, but... they did.

In the documents concerning guardianship of women, again the first impression the documents convey is that Roman law was adhered to as in the Greek documents women bring guardians, while they did not in the Aramaic ones. However, closer scrutiny shows that the practice was not established as women sometimes do not bring guardians, for the same act for which they do bring a guardian in another document in the archive.

In this context the terminology used in the documents for guard­ian of a minor and guardian of a woman can be enlightening. Cotton's comparison of the Egyptian material with the Judaean Desert archives touches upon the difference in terminology used in Egyptian documents and in the archives. Where the Greek documents from Egypt distinguish between the guardian of a minor and of a woman with different terms, έπίτροπος and κύριος, the Greek documents from the archives use a single term, έπίτροπος, to refer to both. As Cotton observes, the identi­fication does not come from the Aramaic environment as the Aramaic subscriptions do distinguish between the guardian of a minor, N33OSN, and the guardian of a woman, ρπκ. Cotton refers to Wolff, who explained the use of a single term in the Greek of the Judaean Desert documents as a consequence of the use of this term in official Roman documents to translate the single Latin term tutor. Indeed, Wolff's argument that in Greek translations of official Roman pronouncements the Greek word έπίτροπος was used to translate the single term tutor for both the guard­ian of a minor and of a woman and this consequently influenced the terminology of our documents is plausible, not to say compelling. How­ever, the importance of this Roman influence on the documents should not be overestimated as it is counterbalanced by the use of two terms in the Aramaic subscription JHN and NSIUSN. Indeed, it seems likely that the use of these distinct terms can tell us more about the legal environ­ment than the use of a single term in Greek. The term JHN ‘lord, master,' represents the equivalent of the Greek word κύριος, used for guardian of a woman in documents from Egypt mentioned above. The term has no parallels in eastern legal sources, indeed, the eastern laws did not know the institute of guardianship of a woman. This implies that the Aramaic subscriptions use the term JDK not to cover the Greek κύριος (the part of the guardian in our documents obviously does not cover the part of the κύριος in Egypt) but to specifically translate έπίτροπος in this con­text: έπίτροπος, guardian of a woman, as opposed to Ν3ΊΌ3Ν, guardian of a minor. This proves that the scribes understood that the single term έπίτροπος covered two different institutions and they chose to have the parties make the legal distinction in Aramaic, despite the use of the sin­gle term έπίτροπος in Greek. Obviously, they could only do this if they indeed understood the legal implications: why express a distinction that is irrelevant? This means that there was a much deeper understanding of legal issues than has previously been assumed: instead of merely copying lines from official sources the scribes sought to express legal concepts according to their own understanding, while adhering to Roman formal demands. Further proof for this can be found in P.Yadin 27, where the scribe translates a subscription by a man, who is both subscriber and guardian. While the subscriber in his own subscription only indicates the act of subscribing, the scribe in his translation emphasizes that the subscriber was guardian, thereby meeting with the demands of Roman formal law. The translation has also adjusted dating from the indigenous dating used by the subscriber to accepted dating in Greek acts under Roman rule. Apparently, an important role was performed by scribes: they were the ones responsible for accurately representing both the sub­stantive arrangements rooted in local law and the formal demands made by Roman jurisdiction. In this light it is telling that Norr observed that the scribes had a surprisingly profound knowledge of Roman formal law, especially regarding the relatively recent subjection to Roman rule. By contrast one can observe that nowhere in the documents there is any proof that Roman law was adhered to substantively. Consequently, one has to argue that the scribes indeed only sought to adhere to Roman for­mal demands, while working from local law substantively. In doing so the scribes worked at the very meeting point of indigenous and Roman law, avoiding collision by directing both legal systems into a channel of applicability of their own.