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The Rabbinic and Roman Laws of Personal Injury

Published online by Cambridge University Press:  13 November 2015

Jonathan A. Pomeranz
Jonathan A. Pomeranz*
Affiliation:
Yale University, New Haven, Connecticut
*
yoni.pomeranz@gmail.com
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Abstract

This paper studies the varied forms of interaction between the rabbinic and Roman legal systems by investigating similarities between the laws of personal injury found in the eighth chapter of Mishnah Bava Kamma and the contemporaneous Roman law. The rabbinic shift away from the talion happened under the influence of the Roman statutes that had replaced the talion with monetary compensation centuries earlier. Roman norms of shame prompted an expansion of the significance of shame in the rabbinic reckoning of damages. Influence, however, is rarely a matter of the passive reception by a minority culture of the dominant culture's norms. The rabbis adapted and reshaped Roman norms in line with the Torah's discomfort with the concept of personal honor. Personal injury laws in the Babylonian Talmud also bear a striking resemblance to the classical Roman laws, though this should not be attributed to direct Roman influence on the rabbis. The Babylonian rabbis shared the Romans' discomfort with evaluating free people as slaves in order to determine compensation for injury. Because rabbinic statements are terse and enigmatic, whereas Roman law is elaborated in detail, the Roman laws shed light on obscure rabbinic teachings and the cultural concerns that they reflect.

Type
Research Article
Information
AJS Review , Volume 39 , Issue 2 , November 2015 , pp. 303 - 331
Copyright
Copyright © Association for Jewish Studies 2015 

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References

1. Boaz Cohen, Jewish and Roman Law: A Comparative Study, 2 vols. (New York: Jewish Theological Seminary of America Press, 1966), 13–14.

2. T. Bava Kamma 9:1.

3. Or: slaps his fellow on the ear.

4. Midrash Tannaim, to Deuteronomy 25:11 (ed. Hoffmann, p. 168).

For a clear and persuasive explanation of the interpretive logic by which the school of Rabbi Ishmael reads this verse as the biblical source for the category of boshet see Amit Gvaryahu, “The Tannaitic Laws of Battery” (Master's thesis, Hebrew University, 2012), 5–8, 13–16.

5. John. A. Crook, Law and Life of Rome, 90 B.C. – A.D. 212, Aspects of Greek and Roman Life (London: Thames & Hudson, 1967), 198–99.

6. Digest of Justinian (hereafter D) 9.3.1.3.

7. Plescia, Joseph, “The Development of Inuria,” Labeo 23 (1977): 281Google Scholar; Otto Lenel, Das Edictum perpetuum. Ein Versuch zu dessen Wiederherstellung (Leipzig: B. Tauchnitz, 1883), 320.

8. Plescia, “Development of Inuria,” 281–82.

9. D. 47.10.22.

10. D. 47.10.13.3.

11. D. 47.10.13.7.

12. D. 47.10.15.27.

13. D. 47.10.7.8.

14. D. 47.10.5.pr.

15. D. 47.10.1.1–2.

16. D. 47.10.3.2.

17. M. Bava Kamma 8:1.

18. D. 47.10.7.8; Institutes of Gaius 3.225 (ed. William M. Gordon and Olivia F. Robinson [Ithaca, NY: Cornell University Press, 1988], 401).

19. D. 47.10.7.8; See also Institutes of Gaius 3.225.

20. T. Bava Kamma 9:12.

21. D. 47.10.1.5.

22. M. Bava Kamma 8:7.

23. Text according to MS Kaufmann.

24. M. Avot 3:14.

25. Amit Gvaryahu (“Tannaitic Laws of Battery,” 44–51) shows that the system of boshet where everything depends on the relative status of the assailant and the victim comes from the school of R. Ishmael, while the system of fixed payments for particular offenses stems from the school of R. Akiva (though in the midrashim of the Rabbi Akiva school, the particular offenses are listed as deserving of remedies but no fixed sums are mentioned; the fixed payments appear only in the Mishnah and the Tosefta).  Gvaryahu's research allows us to see that R. Ishmael's school embraces the Roman idea of compensation based on honor. R. Akiva's school appears to dissent from that system and treat all Jews as equally honorable. Both approaches are combined in the Mishnah, which thus expresses an internal conflict in rabbinic Judaism between accepting and rejecting Roman concepts of honor. See also Balberg, Mira, “Pricing Persons: Consecration, Compensation, and Individuality in the Mishnah,” Jewish Quarterly Review 103, no. 2 (2013): 187–188CrossRefGoogle Scholar.

26. Exodus 21:24–25.

27. Exodus 21:24–25, Leviticus 24:20, and Deuteronomy 19:21.

28. Jewish Antiquities 4.281 (H. St. J. Thackeray, Josephus, 9 vols., Loeb Classical Library [London and Cambridge: Heinemann and Harvard University Press, 1926], 4:611).

29. Philo, The Special Laws, 3.195 (F. H. Colson and G. H. Whitaker, Philo, vol. 7, The Loeb Classical Library [Cambridge, MA: Harvard University Press, 1998], 597–98). Some scholars have argued that Philo does not actually understand the talion law literally, but this argument is unpersuasive. Samuel Belkin (Philo and the Oral Law: The Philonic Interpretation of Biblical Law in Relation to the Palestinian Halakah, Harvard Semitic Series [Cambridge, MA: Harvard University Press, 1940], 99) writes that “[Philo] merely uses the biblical phrase ‘an eye for an eye,’ but whether money indemnity can take the place of the talio is not a question that he discusses.” However, it is quite clear from the passage that Philo understands the talion to involve physical punishment; otherwise his subsequent discussion of how a master would be crueler to a slave after being mutilated makes little sense.

30. Philo, The Special Laws, 3.181. That the law that Philo attacks here is Greek law is established in Erwin R. Goodenough, The Jurisprudence of the Jewish Courts in Egypt: Legal Administration by the Jews under the Early Roman Empire as Described by Philo Judaeus (New Haven: Yale University Press, 1929), 136–39. Belkin's reading of this passage (Philo and the Oral Law, 101) to argue that Philo did not endorse the talion is implausible. It is hard to dispute the judgment of James F. Davis (Lex Talionis in Early Judaism and the Exhortation of Jesus in Matthew 5:38–42, Journal for the Study of the New Testament Supplement series [London: T&T Clark, 2005], 67), who writes that “Philo provides solid testimony that in the first century AD a literal interpretation of the lex talionis for both murder and maiming was a viable viewpoint.”

31. The term “O Scholion” comes from Vered Noam, who discovered that the manuscripts of Megillat Ta‘anit contained two completely separate commentaries (scholia) on Megillat Ta‘anit. The merging of the two scholia together in some of the manuscripts led earlier scholars to incorrectly use the hybrid version as the base text of Meg. Taʿan. See Vered Noam, “Megillat Taanit—The Scroll of Fasting,” in Literature of the Sages, ed. Shmuel Safrai et al. (Assen: Royal Van Gorcum and Fortress Press, 2006), 339–62.

32. Vered Noam, Megillat Ta‘anit: Ha-nusaḥim, pishram, toldotehem: Be-ẓeruf mahadurah bikortit (Jerusalem: Yad Yiẓḥak Ben-Ẓvi, 2003), 78–79.

33. Mekhilta de-Rabbi Ishmael, Masekhta de-nezikin, to Exodus 21:24 (ed. Lauterbach, p. 402); B. Bava Kamma 83b.

34. E.g. M. Avot 2:8; B. Sukkah 28a.

35. D. 9.2.7 pr.

36. D. 9.2.27.17.

37. D. 9.2.5.2. M. Bava Kamma 4:4.

38. Watson, Alan, “Personal Injuries in the XII Tables,” Tijdschrift voor Rechtsgeschiedenis 43 (1975): 213CrossRefGoogle Scholar. Watson's translation has been modified slightly.

39. See e.g. Watson, “Personal Injuries in the XII Tables”; Halpin, Andrew, “The Usage of Iniuria in the Twelve Tables,” The Irish Jurist 11 (1976): 344–54Google Scholar.

40. See e.g. Mekhilta de-Rabbi Ishmael, Masekhta de-nezikin, to Exodus 21:24 (ed. Lauterbach, pp. 401–402) and many of the exegetical arguments in B. Bava Kamma 83b–84a.

41. Y. Bava Kamma 8:1 (6b).

42. B. Bava Kamma 83b.

43. Attic Nights 20.1.14–18. (John Carew Rolfe, The Attic Nights of Aulus Gellius, vol. 3, The Loeb Classical Library [London and New York: W. Heinemann and Putnam's Sons, 1927], 413).

44. Attic Nights 20.1.38, 3:421.

45. Michael L. Satlow, “Beyond Influence: Toward a New Historiographic Paradigm,” in Jewish Literatures and Cultures: Context and Intertext, ed. Anita Norich and Yaron Z. Eliav (Providence, RI: Brown Judaic Studies, 2008), 40.

46. Alfredo Mordechai Rabello, “Civil Justice in Palestine from 63 BCE to 70 CE,” in Classical Studies in Honor of David Sohlberg, ed. Ranon Katzoff, Yaakov Petroff, and David Schaps (Ramat Gan: Bar-Ilan University Press, 1996), 305. I am grateful to Yonatan Moss for pointing me to this article.

47. Bernard S. Jackson, “On the Problem of Roman Influence on the Halakah and Normative Self-Definition in Judaism,” in Jewish and Christian Self-Definition, ed. Ed P. Sanders (Philadelphia: Fortress, 1981), 167.

48. Alfredo Mordechai Rabello, “Jewish and Roman Jurisdiction,” in Introduction to the History and Sources of Jewish Law, ed. Neil S. Hecht et al. (Oxford: Oxford University Press, 1996), 147.

49. Jackson, “Roman Influence on the Halakah,” 164. Hannah Cotton's analysis of the case of the guardianship of Babatha's son Jesus (“The Guardianship of Jesus Son of Babatha: Roman and Local Law in the Province of Arabia,” The Journal of Roman Studies 83 [1993]: 107)Google Scholar shows that Babatha's lack of a legal right to act as a guardian for her son reflects Roman law rather than rabbinic law. In Cotton's view, the Romans did not require residents of Arabia to use Roman law. Instead, “the very presence of the Romans as the supreme authority in the province invited appeals to their authority, to their courts as well as to their laws.” Glen Bowersock (Roman Arabia [Cambridge, MA: Harvard University Press, 1983], 79) disagrees; he argues that the Babatha archive confirms the report of the fourth-century historian Amianus Marcellinus that the creation of the province of Arabia involved the supplanting of local law with Roman law.  See Ammianus Marcellinus 14.8.13 (John C. Rolfe, Ammianus Marcellinus [London and Cambridge: Heinemann and Harvard University Press, 1935], 1:71). This claim has been challenged on certain minor points by Goodman, Martin (“Babatha's Story,” Journal of Roman Studies 81 [1991]: 173)CrossRefGoogle Scholar. Goodman objects to Bowersock's claims on the grounds that the version of Roman law implemented in the Babatha archives seems to have been influenced by Jewish law. Goodman notes the acceptance of bigamy (not sanctioned by Roman law) and the appointment of two guardians for an orphaned child, when only one is needed under Roman law.

50. Seth Schwartz, Imperialism and Jewish Society: 200 BCE to 640 CE (Princeton, NJ: Princeton University Press, 2001), 163.

See, however, the countervailing view of Hayim Lapin (Rabbis as Romans: The Rabbinic Movement in Palestine, 100–400 CE [Oxford: Oxford University Press, 2012], 3, 11), who emphasizes the “fundamental embeddedness” of the rabbis in the structure of the Roman Empire, describes the rabbinic movement as “an urban provincial movement within its Roman imperial setting,” and argues that we will understand the rabbinic movement better if we “set aside … assumptions of Judaean or Jewish exceptionalism and examine the rabbinic movement as one modality of the provincial construction of local, particularist identity formation in the Roman Empire.”

51. Seth Schwartz, Were the Jews a Mediterranean Society?: Reciprocity and Solidarity in Ancient Judaism  (Princeton, NJ: Princeton University Press, 2010), 112–16.

52. Sifrei Devarim, Ve-zot ha-berakhah, pis. 344, to Deuteronomy 33:3 (ed. Finkelstein, p. 401).

53. Shaye J. D. Cohen, “The Place of the Rabbi in Jewish Society of the Second Century,” in The Galilee in Late Antiquity, ed. Lee I. Levine (New York: JTS Press, 1992), 161.

54. This tactic seems to have been successful on both counts. The Palestinian Talmud contains accounts of more civil cases coming before the rabbis than tannaitic literature does, which suggests that more Jews went to rabbinic courts to sort out their civil claims in the third and fourth centuries than in the first and second centuries. Shaye J. D. Cohen, “Place of the Rabbi,” 161. In the late fourth century, if not before, Roman law recognized that though Jews were subject to Roman law, by agreement between the parties (compromissum) the litigants could use rabbinic courts as arbitrators. Jill Harries, “Courts and the Judicial System,” in The Oxford Handbook of Jewish Daily Life in Roman Palestine, ed. Catherine Hezser (Oxford: Oxford University Press, 2012),  http://www.oxfordhandbooks.com. Codex Theodosianus 2.1.10 (Amnon Linder, The Jews in Roman Imperial Legislation [Detroit, MI: Wayne State University Press, 1987], 208).

55. This has previously been suggested by Balberg in “Pricing Persons,” 184 n. 45, 191.

56. Jackson refers to this as the E + E (Environment + Environment) model. Jackson, “Roman Influence on the Halakah,” 183–84.

57. Jon E. Lendon, Empire of Honour: The Art of Government in the Roman World (Oxford: Oxford University Press, 1997).

58. Schwartz, Were the Jews?, 26.

59. Schwartz, Were the Jews?, 110–65.

60. Bernard Jackson has called this the N+E (Nature + Environment) model of assessing influence on the Halakhah. Jackson, “Roman Influence on the Halakah,” 184.

61. Jackson, “Roman Influence on the Halakah,” 190.

62. Diamond, Arthur S., “An Eye for an Eye,” Iraq 19, no. 2 (1957)CrossRefGoogle Scholar.

63. Philo, The Special Laws, 3.181.

64. This approach is taken by Leib Moscovitz (“Legal Fictions in Rabbinic Law and Roman Law: Some Comparative Observations,” in Rabbinic Law in Its Roman and Near Eastern Context, ed. Catherine Hezser, Texts and Studies in Ancient Judaism [Tübingen: Mohr Siebeck, 2003], 132). Moscovitz, in his article on the shared use of legal fictions in Roman law and rabbinic Halakhah, attributes this phenomenon to the “similar, though admittedly nonidentical, cultural and intellectual climate,” rather than to some notion of influence.

65. Gvaryahu, “Tannaitic Laws of Battery,” 5–20.

66. B. Bava Kamma 84a. Text from the Bar-Ilan Responsa Project, based on the printed edition. Significant variants from the manuscripts (according to the Lieberman Project) are listed in the footnotes to this translation.

67. MS Vatican 116 (V): Rava. MSS Escorial G-I-3 (E), Hamburg 165 (H), Munich 95 (M), and Florence II-I-S (F) all read: Rabbah.

68. M: They [or: he] said to him. The speaker is missing in the Vatican manuscript. E, H, and F all read: Rava said to him.

69. H and E read: But there were five. V, M, and F read: But we learn in the Mishnah, five.

70. H and E: He said to him. V and M: [missing]. F: Abaye said to him.

71. E, V, M, and F: But he is an ox. H: But he is an ass, and an ass is like an ox.

72. E, H, V, M, and F: And an ox only pays nezek.

73. Missing in all manuscripts.

74. E, H, M: The sages said to Rava. V: [missing]. F: They said to him.

75. V: But didn't Rava say? All other manuscripts: But didn't the master say?

76. Missing in all but H and E.

77. H and E: The practical difference arises in a case where the child … V, M, and F: No, it is necessary, if the child …

78. Richard L. Kalmin, The Sage in Jewish Society of Late Antiquity (London: Routledge, 1999), 1–24. and Jewish Babylonia between Persia and Roman Palestine (Oxford: Oxford University Press, 2006), 12–17.

79. D. 9.3.1.

80. Such is the interpretation of Tosafot ad loc.

81. The latter interpretation is how the Maharsha (R. Samuel Eliezer b. R. Judah Halevi Edels [Poland: 1555–1632]) seems to have understood this story. (Maharsha, Ḥiddushei halakhot, ad loc.)

82. M. Bava Kamma 8:2.

83. Tosafot and Rashba ad loc. The Maharsha, who, as mentioned above, seems to understand that Rav Papa only wanted the collection of the four categories of damages other than nezek, suggests that Rav Papa also believed that there had been no physical injury to the child.

84. In some manuscripts he is corrected by both Rava and Abaye, while in others he is corrected by anonymous sages. There is no reason that Abaye or the anonymous sages would have any more privileged knowledge of the case than Rava would, so my objection to this explanation of the medieval commentators still stands. See the footnotes to the translation above.

85. According to the Florence, Vatican, Munich, and Escorial manuscripts, Rav Papa is corrected as follows:  “He is an ox [שור], and an ox only pays nezek.” The animal that harmed the child in the story is not an ox—it is an ass (חמור), but this response means that the mishnaic category of the ox (damage by a domestic animal) applies to this case of damages. The Hamburg manuscript reads: “It is an ass, and an ass is like an ox and an ox only pays nezek.” To my knowledge, only the printed edition has Abaye say “it is an ass, and an ass only pays nezek.”

86. Only in MSS Hamburg, Escorial, and Munich is it explicit that the sages (rabanan) make this objection; in other witnesses the objections are anonymous.

87. B. Bava Kamma 84b.

88. This is rather uncertain, given that Rava's statement that damage by oxen is not collected in Babylonia seems to be in tension with Rava's statement that damage to oxen by oxen is collected in Babylonia.

89. B. Bava Kamma 84b.

90. As Friedman, Shamma (“Hosafot ve-kit‘ei sevara' be-perek ha-ḥovel,” Tarbiz 40 [1971]: 423–32)Google Scholar has shown, Maimonides relied on a different version of the sugya that lacked certain later additions, which led him to conclude that shevet and ripui are collected, though nezek, boshet, and ẓa‘ar are not collected. Maimonides, Hilkhot sanhedrin, 5:10.

91. For an example of an invented tradition attributed to Rava see Kahana, Menahem, “Gilui da‘at ve-ʾones be-Gittin: Le-ḥeker hishtalshalut ha-mesorot ha-muḥlafot be-‘arikhatan ha-megamatit shel sugyot meʾuḥarot,” Tarbiz 62 (1993): 242–50Google Scholar. If Kahana is correct that Rava's position that one cannot make claims of force majeure (אונס) with regard to divorce documents was purposely invented by later sages, the reason for this invention was probably to address the practical difficulties created by Rava's original position that claims of force majeure were accepted from a husband who had given a conditional get: If it is possible to make a claim of force majeure, then no conditional divorce is final and women who have received divorce documents have to deal with the possibility that they may be found to still be legally married. This means that they either cannot remarry or that they have to accept the possibility that their children from their new marriage may be declared illegitimate (mamzerim).

If our story of Rava's court case was invented as precedent for carrying out judgments for nezek in cases of damage by animals, then it was the beginning of a trend continued by post-talmudic sages who found ways to collect nezek in Babylonia. The Geonim excommunicated the assailant until he paid the victim what he was owed. This geonic innovation was later adopted by Maimonides (Mishneh Torah, Hilkhot sanhedrin 5:17). Robert Brody, “Maimonides' Attitude toward the Halakhic Innovations of the Geonim,” in The Thought of Moses Maimonides: Philosophical and Legal Studies, ed. Ira Robinson, Lawrence Kaplan, and Julien Bauer (Lewiston, NY: E. Mellen, 1990), 195–96.

92. See the analysis in Barry S. Wimpfheimer, Narrating the Law: A Poetics of Talmudic Legal Stories (Philadelphia: University of Pennsylvania Press, 2011), 73–75.