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The Need for Rabbinic Nomikoi: A Response to Yair Furstenberg

In: Journal for the Study of Judaism
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Kimberley Czajkowski University of Edinburgh Edinburgh United Kingdom

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Abstract

Yair Furstenberg, in his article “The Rabbinic Movement from Pharisees to Provincial Jurists” (DOI: 10.1163/15700631-bja10070), draws parallels between the rise of the rabbinic movement and jurists in other Eastern provinces of the Roman Empire. This response considers how far we may push the comparison, especially with regard to the stimuli behind the changes in rabbinic activities that Furstenberg posits.

Rabbinic literature, especially the early redactions such as the Mishnah and Tosefta, should certainly be taken much more seriously by historians of the High Roman Empire.1 These works have for too long been sidelined in more mainstream treatments, instead of being studied as very particular, fascinating manifestations of provincial culture. Similarly, that the rabbis operated in a Roman imperial context is undeniable and must be considered in approaching both the literary production that begins to emerge at the beginning of the third century and the development of the rabbinic movement more broadly. Resultant understandings may, of course, differ: we could see interactions or even influences; we could alternatively make the case that the rabbis wanted to ignore their Roman or provincial environment in some aspects, or that they deliberately created a picture of isolation, but that in itself is a reaction to context (and an interesting one). Furstenberg’s piece is therefore welcome as a work that takes these various challenges seriously.

So where do we place the rabbis in our understanding of the Roman imperial project? Can we integrate rabbinic literature into the wider history of the Roman provinces and, if so, how? Furstenberg’s position is as follows:

… the rise of the rabbinic movement under Rome was the outcome of their encounter with imperial legal administration. The provincial situation served to reshape the rabbinic movement in the guise of the local jurists, and ultimately (at a later stage) to establish their political and social standing.2

Furstenberg’s argument prompts several questions. First, what encounters with the Roman legal administration, in concrete terms, can we identify in which the rabbis engaged? Other issues arise in trying to determine the starting point for the changes Furstenberg posits, and might compromise how far the comparison with so-called “legal experts” from other regions can really be pushed. Namely, was there demand from the local provincial population, equivalent to that we find elsewhere, that prompted this supposed development in the rabbinic movement, i.e., the expansion of the bounds of Jewish law to include what we label as “private law”? Or were the rabbis proactively taking this step to expand the boundaries of Jewish law—in ways that are unparalleled in other regions—without any such demand in order to become facilitating agents of empire?

1 Encounters with the Roman Legal Administration

Furstenberg argues that the rabbinic movement was shaped by its “encounter with the imperial legal administration.”3 This is, on the face of it, a perfectly logical argument: we can and must discuss in broader terms the spread of Roman legal forms and the usage of Roman legal institutions—most normally in terms of the use of the Roman court that was offered to provincials through the assizes circuit4—as part of living in the Roman empire and in connection with the process of romanization. The conventus was not the only institution that marked the legal administration of the provinces, but it was certainly the most familiar and prominent. This was a staple feature of Roman provincial administration: how provincials reacted to it is therefore a basic question in any history of the Roman provinces.

We must also, however, be prepared to think about the concrete, day-to-day processes that are encompassed in these broader statements. Thus, to put it baldly, what legal encounters are we discussing exactly? When we come to the rabbinic case specifically this is a tricky question to answer. The basic idea behind the offer of Roman justice was that it was just that: an offer.5 No peregrine was compelled to turn to this institution if they had a complaint. So how were the rabbis actually encountering the Roman legal administration when their own statements suggest that they wanted nothing to do with it? One possible issue with Furstenberg’s arguments is that, despite the welcome general emphasis on the importance of thinking about the provincial context and the specifics of local situations,6 there is little consideration of what, exactly, the Roman institutions were in the local environs of the rabbis specifically that may have been available to enable such encounters. Furstenberg points to the few passages where the rabbis discuss Jewish encounters with gentile courts, but these are limited.7

What might be more plausible is to envisage encounters between individual people: i.e., with elites, both Roman and Greek, in and around rabbinic centers of activity where ideas and knowledge could be shared. While these were not legal encounters in the sense of court cases, such a pattern of interaction would mean taking seriously the idea that rabbis were living in and alongside gentiles, having regular encounters with them and learning along the way, as in fact is sometimes portrayed in the rabbinic corpus.8 These interactions could include, directly or indirectly, discussions about legal culture. But this is a rather different process from that implied by an “encounter with the Roman legal administration”: instead, we are envisioning dialogues between certain people that lead to a dissemination of knowledge, legal elements included. Perhaps we think that the end effect is the same, but the impression of the activities and position of the rabbis in their local environs and how they interacted with the Roman legal administration is markedly different. Delineating these processes also affects our understanding of the way legal knowledge and legal culture was transmitted in this region.

One further possibility is to pursue an idea that rabbis gained Roman legal knowledge not through direct interaction with a court but through documentation: using handbooks, records of judicial decisions and so on.9 This is possible, but there are complications. This is certainly the period where use of documentation by provincials seems to have increased,10 and probably also when collections of documents (sometimes labelled “handbooks”) were becoming more widespread,11 but evidence remains limited and availability in this period was unlikely to be systematic or comprehensive. Provincial archives with records of petitions, decisions, contracts and so on might look promising,12 but drilling down into the details raises more problems: would rabbis have had access to these, or would this have been restricted to whoever was in charge of keeping the archives (notaries, functionaries, etc.)? Finding what was needed if one had no connection to the Roman provincial administration and thus, presumably, little familiarity with the principles of organization of such archives might be challenging, so we then have a possible further layer in mediating access: peregrines or their representatives could then ask the officials in charge of the archives for relevant documents or cases. Of course, the rabbis may have done just that, but this is then quite a precise type of legal information to which they would then have had access: these were not yet systematic overviews of Roman law and principles, but records of rulings (often, if we look to Egypt as a parallel, without much justification as to reasoning behind the decisions given), trial transcripts, correspondence with emperors, and so on. All of this also assumes that there were well-kept provincial archives in the accessible vicinity of the rabbis. And it also assumes a reason for consultation: this raises the question of demand. When provincials or their legal representatives consulted archives elsewhere it was with a specific goal in mind: investigation for a particular case that would go before the Roman court. Does this apply to the rabbis and the provincial population of second-century Judea?

2 Demand for Consultation

Elsewhere, the rise of legal experts was down to demand for their services. The arrival of Rome in an area created a pluralistic legal situation, with multiple legal traditions available, including in private law, and there was then a need to negotiate this situation: this can and has been reframed as an opportunity for provincial agents to use this pluralism to their advantage, presenting local legal traditions to imperial judges in their courts in carefully calculated ways in order to maximize the chance of winning their cases.13 But these provincials had to find out: (a) what those local legal traditions were; (b) how to frame them in the most effective way to appeal to a Roman magistrate. Roman judges, on the other hand, also had to find ways of assessing whether the local traditions presented to them were trustworthy or compelling. And those needs were what the services of the nomikoi fulfilled through their various activities: advice to both litigants and to judges; abilities to draw up documents in the manner required by Roman administrators, potentially in order to be watertight should they ever be needed in a future case; access to the archives or a knowledge of how to consult their keepers for relevant information.

All of this demand is predicated on direct legal interaction between provincials and Romans: whence came the famous example of Dionysia and her father’s appeal to what he claimed was his right to forcibly divorce his daughter based on a traditional Egyptian law, an interpretation she vehemently disputed, complete with as much documentation as she could muster with the aid of her legal advisors (P.Oxy. 2.237). Such interactions created a need for a group, a “class” if we like, of people who could help provincials negotiate imperial expectations and assist imperial officials in judging the claims of their subjects. One question that Furstenberg’s argument raises is whether such demand existed in Judea at this time. Were Jews regularly using Roman courts in this period and thus creating a need for a comparative group of legal experts who could help them to negotiate Roman legal expectations by providing useful local legal traditions in a way that would be easily digestible to the imperial representatives? This is of course possible, but there appears to be very little evidence for it.14 Given what appears to be the limited uptake of the offer of Roman justice by the population of this province in the immediately preceding period,15 this would be quite a major shift. And, if we pursue the comparison with the nomikoi, without such a comparable demand, what would the rabbis be responding to?

Furthermore, we might run into more difficulties with regard to the particular provincial situation with which we are dealing if we accept the key tenet of Furstenberg’s argument: that, as a consequence of their imperial context, the rabbis expanded the boundaries of Jewish law in this period to include for the first time what we would classify as private law. There also does not seem to be any suggestion that various legal experts in the Greek East engaged in any kind of attempt to compile codes of indigenous law to the extent of or even in the manner of the rabbis.16 Furstenberg mentions briefly the “law of the Egyptians”17 but the very nature of this is obscure, as Rosen-Zvi also points out, and Furstenberg himself (correctly) does not seem to suggest that this is comparable to the literary production of the rabbis, which he notes in his conclusion is markedly different from anything else produced at this time.18 The very compilation of a written version of the “Law of the Egyptians,” if we accept this highly debated proposition, was also very probably down to the demands of the Roman imperial administration for a kind of written go-to reference point for native traditions, due to magistrates’ needs in adjudication.19 But beyond this: in each of these provincial situations there existed a highly developed, longstanding native tradition in private law that Roman administrators would be confronted with, and were thus forced to navigate. Provincials in turn knew such private law traditions existed and could learn to utilize them, even in Roman courts, for their own ends. Once again, these pre-existing traditions and the consequent potential to interact with a Roman legal tradition or at least with Roman legal institutions was part of what allowed the nomikoi to create a need for their services. But, if we accept that no Jewish private law existed in the earlier period, as Furstenberg argues, that is a fundamentally different situation from the other areas of empire where we find nomikoi (i.e. his posited point of comparison). And that then could leave us with the situation where, even if we do assume that provincials in Judea were using Roman courts regularly in the second century, they had no need to consult the rabbis on matters of Jewish private law to help them negotiate these Roman legal institutions because they had no concept of Jewish private law in the first place.

3 Rabbis as Agents of Empire?

Perhaps we should approach the argument from a different angle and, specifically, from a different starting point. Could the rabbis have expanded the bounds of Jewish law beyond what had gone before and engaged in their attempts to create a written “comprehensive corpus of private law” (p. 33) in an effort to set themselves up as agents of the imperial project? We then remove the questions concerning provincial demand for such services and instead think about the rabbis engaging in such a project purely for their own purposes. We would have to posit that the reasoning behind this was that the rabbinic movement would see such a project as a way of coming to the Romans’ attention and positioning themselves as the authorities within the community in the eyes of the empire and its representatives. Developing a written comprehensive corpus of private law made them compelling as the group with which imperial representatives could develop a meaningful dialogue; they could also be used (from the empire’s perspective) as a means of spreading the imperial project. In this way, they established a political and social position for themselves on both the local and imperial stage.

It is worth pointing out again, however, that the rabbinic productions of the early third century remain absolutely unique in terms of provincial literary or legal activity, i.e., there are no comparable projects from elsewhere in the empire. The nomikoi elsewhere, as we have noted, were driven by approaches from litigants, the consultative needs of the administration, and, ultimately, by individual cases. None of them engaged, so far as our evidence attests, in any kind of process of comprehensive compilation of a new system of indigenous private law. So, if the rabbis were trying to look like nomikoi, one might ask why they engaged in a project that was so very different from their counterparts elsewhere. One might also ask how useful a work like the Mishnah would have been for these kinds of purposes in its form as a kind of repository for many different opinions, traditions, and sayings of the various sages. As a systematic collection for the use of either litigants or Roman judges: how useful would this be in practical terms?

Perhaps that latter point is the wrong question and we should, instead, focus on the activities of the rabbis in giving advice on private law matters in this period and not the actual literary final product at the end of it. But there we also, perhaps, come back to our starting point of the connection of the rabbis to the imperial administration. If the rabbis were aiming to become agents of empire, through their legal activities, as Furstenberg outlines them, would this not also entail an active engagement with imperial agents? Furstenberg does not suggest, and there is no evidence for it, that the rabbis acted as or showed any interest in performing this kind of advisory function to Roman courts, that they behaved as local consultants for the imperial overlords or their representatives on matters of “local law” as the Romans might have perceived it. As we noted above, the stated attitudes within the rabbinic corpus are instead that of distancing and separation. The final development that Furstenberg outlines, in terms of the rabbis beginning to then act as judges, might be seen to add to this: they are then, in this last stage, beginning to set themselves up within their new system of private law as the adjudicating authorities in the area.20

4 Conclusion

While we might see some similar phenomena across regions as a result of a growing legalism in the High Empire, and comparison of the behaviors of groups in various regions is certainly necessarily, Furstenberg’s argument still leaves us with some rather large questions of whether the rabbis truly were “characteristic representatives of provincial legal culture.”21 Their activities seem markedly different from those of the legal experts elsewhere, as do their aims in engaging in them. But fundamentally we come back to questions of what drove the transformation that Furstenberg envisages and what evidence we have for these hypothesized stimuli. The current state of the evidence does not seem to indicate that the conditions that led to the rise of the legal experts elsewhere were strongly present in second-century Judea. As such, we are still left with questions about the extent to which comparison with the nomikoi helps us in understanding either the rabbinic movement or the Roman imperial project and its effects.

Bibliography

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1

My thanks to Benedikt Eckhardt for his comments on an early draft of this response.

2

Furstenberg, “Rabbinic Movement,” 3.

3

When discussing the imperial situation more broadly—and, thus, as part of the comparison with the legal experts we find in the evidence from both Egypt and other places in the Greek East—these become “intensive encounters with the Roman judicial administration” (p. 34, my italics): this is a key underlying factor in building the argument and in the comparison.

4

See still Burton, “Proconsuls, Assizes,” on the operation of the assizes, as well as Marshall, “Governors on the Move”; see also Haensch “Zur Konventsordnung.” On justice administration in the Eastern provinces from a procedural standpoint, see Fournier, Entre tutelle romaine.

5

This is in no small part due to the—in relative terms—limited amount of personnel used to run the empire in the early to high imperial period. See Kelly, Petitions, Litigation, throughout, on the implications of this for understanding the functioning of the state legal system and its effects; pp. 327–28 encapsulate neatly the personnel problem and its effects.

6

Furstenberg, “Rabbinic Movement,” 29: “it is reasonable to assume that the status and function of the local legal experts varied … according to specific cultural and legal circumstances in each province.”

7

Furstenberg, 24: “Occasionally rabbis would arbitrate cases, and they could even express discomfort with the widespread practice of turning to Roman courts”; n. 93 then points to Mekilta de-Rabbi Ishmael, Neziqin 1. In the text there is a reference to gentiles judging, but “Roman courts” is an interpretative jump: this can certainly be argued for as plausible, but the jump should be noted. One does wonder where Greek institutions—widespread in the east of the Roman Empire—fit into the picture and if there is not perhaps too much of a tendency to create a purely Roman–Jewish dichotomy in terms of law, without considering the Greek tradition (in contrast, for example, with work on avodah zarah and rabbinic attitude to idolatry, that by necessity has to think about Greek deities). Particularly when discussions turn to Iamnia, which had a lengthy history as a Greek city with pagan population in the Hellenistic period (even if that population mix appears to be otherwise by the time of the second century), the place of Greek institutions and law should perhaps give a bit more pause. For an excellent general overview of the history of the city and what we know outside the rabbinic tradition (primarily archaeological, though with historical summaries), see Fischer and Taxel, “Ancient Yavneh.”

8

m. Avodah Zarah 3:4 and the rabbi in the bathhouse episode is perhaps too often cited, but remains a nice example of these kinds of rabbinic/non-Jewish encounters as represented in the literature. There was of course much debate about whether such pieces within the wider rabbinic corpus should be seen as representing “real” encounters or not: see, for example, Herr, “Historical Significance,” for an old argument that such stories may have been based on real encounters; Stroumsa, “Religious Contacts,” for a more cautious approach. Whether each individual episode is based on a “true” story seems to me less important than if we can take such episodes as representative of some sort of dialogue (and, even if imagined, we might note the representation of such imagined dialogues as individual encounters).

9

Furstenberg, “Rabbinic Movement,” 29, discusses provincial archives with respect to the Greek East more generally, but not specifically in regard to the rabbis or their local situation. While archival practice was growing and becoming more regular in this period, there were significant variations between places (and we can again point to Pliny’s Letters and his sometime struggles to find relevant documentation in local archives, hence checking with his imperial overlord on occasion).

10

See again Bryen, “Judging Empire,” on this and its effects on legal argumentation by provincials.

11

Biscardi, “Nuove testimonianze,” on the very specific case of P. Yadin 28–30, remains an excellent exploration of potential uses of handbooks and their origins in a neighboring region.

12

See Haensch, “Statthalterarchiv,” on the governor’s archive; Egypt is of course the best documented case for more local archives, though the levels of organization there are likely to be unusual compared with other provinces (see Langellotti, “Record Offices,” for an excellent, recent overview of village grapheia in Roman Egypt; see also Burkhalter, “Archives locales,” for an older study of both central and local archives in that province; further back, also Cockle, “State Archives”). Furstenberg mentions archives with regard to the activities of nomikoi (at p. 29) but we must question how transferable their activities are in understanding those of the rabbis (see below), especially given Judea’s history in the first century, especially as a province where there was seemingly quite light touch administration: see Czajkowski, “Law and Romanization.”

13

This is essentially the development that Bryen (“Judging Empire”) laid out so compellingly.

14

One might appeal to Babatha again, but, while some of her relatives do live in ʿEin-Gedi and her documents do end up in Judea, the cases in which she is involved that go before a Roman magistrate take place in a different province: Roman Arabia. She should thus not be forgotten, but I am not sure she is enough to posit such widespread demand in the local environs of the rabbis; Dohrmann, “Roman Civic Jurisdiction,” 61, raises a similar concern with regards to the weight placed on the evidence of this archive.

15

Czajkowski, “Law and Romanization,” the basic argument of which Furstenberg seems to accept (“Rabbinic Movement,” 34).

16

Furstenberg, 33, points to “the general transformation of provincial legal culture into a professional and rational body of knowledge by local agents”; even if we agree with this (and the “professionalization” term for this early period is disputed), it is a gradual transformative process that came out of activities that differ markedly from that of the rabbis; the aims of each group also seem to differ.

17

Furstenberg, 31 n. 127.

18

Furstenberg, 33: “no other group created under these circumstances such a comprehensive corpus of private law.”

19

Clearly articulated by Yiftach-Firanko, “Law in Graeco-Roman Egypt,” 552.

20

This brings us rather closer to Dohrmann’s arguments in “Law and Imperial Idioms” (i.e., the rabbis interacting with legalism as an imperial phenomenon, but proposing an alternative) that Furstenberg rejects (“Rabbinic Movement,” 33 n. 132) than to an understanding of the rabbis as “characteristic representatives of provincial legal culture” (33 n. 132).

21

Furstenberg, “Rabbinic Movement,” 33 n. 132.

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