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Disqualified Witnesses between Tannaitic Halakha and Roman Law: The Archeology of a Legal Institution

  • Orit Malka

Abstract

Contemporary Western legal systems allow any individual to serve as a witness and to testify in court. However, in legal regimes from late antiquity we find strict limitations on the eligibility of certain types of people to serve as witnesses. Some of the lists of disqualified witnesses are very particular, thus inviting explanation of the reasons for the specific rules of disqualification. Such is the case regarding both Jewish and Roman rules of disqualification, which are the topic of this paper. Tannaitic halakha, composed in Roman Palestine between the first and third centuries CE, includes a list of four characters disqualified from giving testimony, which has long defied interpretation: “a dice player, a usurer, pigeon flyers, and traders in Seventh Year produce”. This paper offers a novel approach to the study of this list, suggesting that the rabbis drew on the Roman legal institution of infamia when constructing their own laws regarding disqualified witnesses. Beyond solving a puzzle relating to Jewish law, the paper also sheds light on the inner logic of Roman law, maintaining that Jewish and Roman rules of disqualified witnesses are commonly grounded in an ethics of self-control. By drawing attention to this previously unnoted theoretical subtext, the paper contributes to a missing chapter in the global history of evidence admissibility rules.

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Footnotes

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The author thanks Ishay Rosen Zvi, Shai Lavy, Maren Niehoff, and especially Omer Michaelis and Yakir Paz, for reading and commenting on previous drafts of this article.

Footnotes

References

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1. On this list see Weiss, Abraham, Seder ha-diyun: Mehkarim be-Mishpat ha-Talmud (New York: “Horev”–Yeshiva University Press, 1957), 4464; Maloney, Robert P., “Usury in Greek, Roman and Rabbinic Thought,” Traditio 27 (1971): 79109; Safrai, Shmuel, “Psuley ‘Edut: Perek be-Toldot ha-Hevra ha-Yehudit,” Melo'ot 1 (1983): 99103; Schiffman, Lawrence H., Sectarian Law in The Dead Sea Scrolls: Courts, Testimony, and the Penal Code (Chico, CA: Scholars Press, 1983), 6065; Schwartz, Joshua, “‘Pigeon Flyers’ in Ancient Jewish Society,” Journal of Jewish Studies 48 (1997): 105–19; Schwartz, Joshua, “Gambling in Ancient Jewish Society and in the Graeco-Roman World,” in Jews in the Graeco-Roman World, ed. Goodman, Martin (Oxford: Oxford University Press, 2004), 145–65; Sabato, Mordechai, “Psuley ‘Edut,” Sidra 23 (2008): 530; Shraga Bar-On, “Hatalat Goralot Elohim ve-Adam, min ha-Mikra ve-Ad Shilhei ha-Renesance” (PhD diss., Hebrew University of Jerusalem, 2011), 331–38; Sabato, Mordechai, Talmud Bavli Masehet Sanhedrin Perk Shlishi (Jerusalem: Bialik Institute, 2018), the chapters on Mishnah 3; and Amit Gvaryahu, “Diney Ribit be-Sifrut Hazal” (PhD diss., Hebrew University of Jerusalem, forthcoming 2019). I thank Amit Gvaryahu for sharing with me drafts of his work before final submission. For the dating of the list, see Safrai, Shmuel, “Mitsvot Shvi'it ba-Metsi'ut she-le-Ahar Hurban Ba'it Sheni (2),” Tarbiz 35 (1966): 304–28, at 322; and Büchler, Adolf, Am ha-Aretz ha-Glili, trans. Eldad, Israel (Jerusalem: Mosad Harav Kook, 1964), 161–62, 176–77. Despite the fact that the four categories of person included in the list are disqualified not only for testimony, but also from serving as judges as well as from taking a procedural oath, they are primarily referred to as “disqualified witnesses” both in traditional commentaries and modern scholarship.

2. Mishnah (M) Sanhedrin 3:3. All translations from rabbinic literature are mine unless stated otherwise. Mishnah translations are modified from Danby, Herbert, The Mishnah (Oxford: Oxford University Press, 1938). For the same list in other sources, see Tosefta (T) Sanhedrin 5.2, M Rosh ha-Shanah 1:8, and M Shevu'ot 7:4 with regard to a procedural oath. In M Rosh ha-Shanah 1:8 the list also includes slaves, although scholars debate whether slaves were part of the original list; Weiss, Seder ha-diyun, 44–46, convincingly argues the opposite, and Sabato, “Psuley ‘Edut,” 18, agrees with Weiss. For a summary of the opinions, see Sabato, Talmud Bavli Masehet Sanhedrin Perk Shlishi, 218–20. The conclusions of this article shed light both on the absence of slaves from the core list of four categories of persons as well as their association with slaves in M Rosh ha-Shanah.

3. In fact, this view follows a traditional interpretation, see discussion in Part I of this article.

4. Babylonian Talmud (BT) 27a can be read as indicating that the disqualification of these four categories of person was inferred from scripture by midrashic methods; see Bar-On, “Hatalat Goralot,” 332–33; and Gvaryahu, Diney Ribit. For the purposes of this article, it makes no difference what methods the rabbis used to anchor their innovative rule.

5. Other categories of people who are disqualified from giving testimony according to Tannaitic literature are women, minors, slaves, gentiles, and more. In all these cases, the disqualification is not based on behavior, but rather on social and biological identity.

6. The fullest account of infamia in all its periods continues to be Greenidge, Abel Hendy Jones, Infamia, its Place in Roman Public and Private Law (Oxford: Clarendon Press, 1894). See further Kaser, Max, “Infamia und ignominia in den römischen Rechtsquellen,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistiche Abteilung 73 (1956): 220278; Gardner, Jane F., Being a Roman Citizen (London: Routledge, 1993), chapter 5; McGinn, Thomas A. J., Prostitution, Sexuality and the Law in Ancient Rome (New York: Oxford University Press, 1998), 2169; Tristan S. Taylor, “Aspects of Infamia” (PhD diss., University of Tasmania, 2006); Wolf, Joseph G., “Das Stigma ignominia,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 126 (2009): 55113. For the development of this institution in later periods, see Bond, Sarah, “Altering Infamy: Status, Violence, and Civic Exclusion in Late Antiquity,” Classical Antiquity 33 (2014): 130; and Atzeri, Lorena, “Il lessico dell'infamia nella legislazione imperiale tardoantica (secc. IV-V dC),” Scritti per Alessandro Corbino (Italy: Libellula, 2016), 123–55.

7. For a summary account of this idea, see Harris, William V., Restraining Rage: The Ideology of Anger Control in Classical Antiquity (Cambridge, MA: Harvard University Press, 2009), 8088. For a broad survey of moderation (σωϕροσύνη), which often overlaps with self-control in Greek and Roman literature, see North, Helen, Sophrosyne: Self-knowledge and Self-restraint in Greek Literature (Ithaca, NY: Cornell University Press, 1966). Detailed accounts of self-control in the Roman period could be found in New Testament scholarship; see, for example, Stowers, Stanley K., A Rereading of Romans: Justice, Jews, and Gentiles (New Haven, CT: Yale University Press, 1994), ch. 2; and Katy E. Valentine, “‘For You Were Bought with a Price’: Slaves, Sex, and Self-Control in a Pauline Community” (PhD diss., Graduate Theological Union, 2014).

8. For a description of legal proceedings in Rome and its provinces, see, for example, Bablitz, Leanne, Actors and Audience in the Roman Courtroom (London: Routledge, 2007); and Bryen, Ari Z., Violence in Roman Egypt: A Study in Legal Interpretation (Philadelphia: University of Pennsylvania Press, 2013). Notably, however, this literature almost never discusses witnesses.

9. Those motivations and mechanisms of transmission probably relate to the colonial condition in Roman Palestine. As Clifford Ando argues, there are reasons to expect provincial legal systems to come into alignment with imperial ones at the level of both principle and procedure, even when they were regulated by an overall principle of local autonomy. See Ando, Clifford, “Pluralism and Empire: From Rome to Robert Cover,” Critical Analysis of Law 1 (2014): 122.

10. For a discussion of inadmissibility rules in the Anglo-American tradition based on their assumed probative grounds, see, for example, Morgan, Edmund M., Some Problems of Proof Under the Anglo-American System of Litigation (New York: Columbia University Press, 1956); Landsman, Stephan, “From Gilbert to Bentham: The Reconceptualization of Evidence Theory,” Wayne Law Review 36 (1989): 1149–86; Herrmann, Frank R., “The Establishment of a Rule Against Hearsay in Romano-Canonical Procedure,” Virginia Journal of International Law 36 (1995): 151; Langbein, John H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1168–202; Gallanis, Thomas P., “The Rise of Modern Evidence Law,” Iowa Law Review 84 (1999): 499560; and Schauer, Frederick, “On The Supposed Jury-Dependence of Evidence Law,” University Of Pennsylvania Law Review 155 (2006): 165202.

11. Todd, Stephen C., “The Purpose of Evidence in Athenian Courts,” in Nomos: Essays in Athenian Law, Politics and Society, ed. Todd, Stephen C. and Millett, Paul (Cambridge: Cambridge University Press, 1990), 1940.

12. This is certainly the case regarding the examples considered by Watson, Alan in his book, Legal Transplants: An Approach to Comparative Law, 2nd ed. (Athens, GA: University of Georgia Press, 1993). The most studied cases of legal transplant continue to be the reception of Roman law in Europe, the diffusion of some influential national codifications both inside and outside Europe, and the expansion of common law across the world, all cases that enable a clear-cut recognition of the transferred legal norms. See, for example, Graziadei, Michele, “Transplants and Receptions,” in The Oxford Handbook of Comparative Law, ed. Reimann, Mathias and Zimmerman, Reinhard (Oxford: Oxford University Press, 2006), 440–75.

13. The metaphor of transplantation used by Watson was fiercely criticized by scholars who emphasized the changes in the meaning of the legal norm during the process of transfer. For such critique, see Legrand, Pierre, “The Impossibility of ‘Legal Transplants,’Maastricht Journal of European and Comparative Law 4 (1997): 111–24. Many other metaphors have been suggested and discussed in the scholarship, such as “adaption,” “borrowing,” “circulation,” “diffusion,” “entanglement,” “influence,” “migration,” “reception,” “transfer, “amalgamation,” “métissage,” “hybridization,” “creolization,” “decontextualization,” and “recontextualization,” and lately also “translation.” For the importance of metaphors, see, for examples, Nelken, David, “Toward a Sociology of Legal Adaptation,” in Adapting Legal Cultures, ed. Nelken, David and Feest, Johannes (Oxford: Hart, 2001), 7–54, 1521; and Foljanty, Lena, “Legal Transfers as Processes of Cultural Translation: On the Consequences of a Metaphor,” Max Planck Institute for European Legal History Research Paper Series, 2015–09 (2015), http://ssrn.com/abstract=2682465 (accessed June 4, 2019).

14. See Safrai, “Psuley ‘Edut,” 100; Sabato, “Psuley ‘Edut,” 5–7, 11–12; Schwartz, “‘Pigeon Flyers,’” 112–17; and Ettinger, Shimshon, Re'ayot ba-Mishpat ha-Ivri (Jerusalem: The Institute for Research in Jewish Law, Hebrew University, 2011), 123.

15. Sabato, “Psuley ‘Edut,” 17 n. 70; Gvaryahu, Diney Ribit. For a similar use of the phrase, see M Kelim 26:8, T Bava- Kama 7.2, and especially T Ketubot 12.

16. See note 34.

17. T Sanhedrin 5.5.

18. This interpretation is in line with a common opinion that the phrase “חשוד” refers to a person who was already caught performing a forbidden act, and is not merely a suspect. However, some sources challenge this understanding of the term חשוד in Tannaitic literature; see, for example, M Demai 3.6.

19. The Hebrew המשחק בקוביא comes from the Greek word “κῠβεία”; see Schwartz, “Gambling,” 153.

20. Gvaryahu, Diney Ribit.

21. T Sanhedrin 5.2.

22. Schwartz, “‘Pigeon Flyers,’” 109. As noted by Schwartz, this practice was disparaged, but it was not strictly illegal according to Roman law; ibid., 116–17. For a similar attitude in Tannaitic sources, see M Gittin 5.8.

23. Sabato, “Psuley ‘Edut,” 15–16. This seems to be the logic guiding R. Yehuda; see M Sanhedrin 3.3 and parallels.

24. T Sanhedrin 5.5, BT Sanhedrin 25b.

25. T Baba Kama 8.26, M Kiddushin 4.14.

26. For example, BT Rosh ha-Shanah 22a, and BT Yevamot 25b. Other texts mention generally “a disqualification due to theft” (פסול גזלנות): BT Ketubot 21b, BT Sanhedrin 23b, and BT Kiddushim 66a. In BT Sanhedrin 24b–25a, the disqualification of both the dice player and the pigeon flyer for testimony is explained, inter alia, in terms of the lack of any valid property transfer in the transactions they make. The Palestinian Talmud seems to reflect similar presuppositions; see Jerusalem Talmud (JT) Sanhedrin 3.3 (21:1) and parallels.

27. Although see T Shevi'it 8.11.

28. According to the Vienna manuscript.

29. See Sabato, “Psuley ‘Edut,” 17.

30. For example, the Erfurt manuscript which reads: “They added to them thieves and herdsmen and robbers and all those who are suspect in money matters—their testimony is ineligible.” See Sabato on this version, ibid., n. 68.

31. A bariata (Tannaitic tradition external to the Mishnah) cited in BT Sanhedrin 25b. A separate baraita on the same page describes the addition of three other suspicious categories: עוד הוסיפו עליהן הרועין והגבאין והמוכסין.

32. Sabato, “Psulei ‘Edut,” 17, notes this difficulty but does not suggest any resolution. In his book, Sanhedrin Perek Shlishi, 286–87, he dismisses it as resulting from later editing. Notably, some question the credibility of certain Babylonian baraitot, especially when they reinforce Babylonian halakha; see Friedman, Shama Y., “ha-Baraitot ba-Talmud ha-Bavli ve-Yahasan le-Makbilotehen she-Batosefta,” in Atara L'Haim: Studies in the Talmud and Medieval Rabbinic Literature in Honor of Professor Haim Zalman Dimitrovsky, ed. Boyarin, Daniel, Friedman, Shamma, Hirshman, Marc, Schmelzer, Menahem, and Tashma, Israel M. (Jerusalem: Magness Press, 2000), 163201, at 197. However, this approach has been criticized and revisited; see Katzoff, Binyamin, “Yahas ha-Baraitot ba-Tosefta le-Makbilotehen ha-Talmudiyot: ‘Iyun Mehudash,” Hebrew Union College Annual 75 (2004): 24.1; and Cohen, Barak, For Out of Babylonia Shall Come Torah and the Word of the Lord from Nehar Peqod: The Quest for Babylonian Tannaitic Traditions (Leiden: Koninklijke Brill NV, 2017). It should be noted that in our case, the baraita is quoted in the Babylonian Talmud despite the fact that it plainly contradicts the assumption of the sugya, according to which thieves are excluded from testifying by Torah Law; see, for example, BT Sanhedrin 25b: “גזלן דאוריתא הוא,” and also the words of Rava on page 26b: “בגזלן דאוריתא מי בעינן הכרזה.” By describing thieves and robbers as a rabbinic addition, the baraita creates a historical picture that the sugya cannot accept. This difficulty is addressed and answered by applying a clearly forced okimta, suggesting that the thieves mentioned in the baraita are not thieves in the strict sense but rather those who steal an article that was found by “a deaf person, an imbecile and a minor.” This supposedly solves the problem, because a deaf person, an imbecile, and a minor all lack the legal status that enables the finder of an article to become its legal owner. The artificial nature of this solution supports the originality of our baraita, as it seems to suggest that the editors were forced to include it in the sugya despite their contradicting world view. For a different view, see Büchler, Am Ha-aretz ha-Glili, 176.

33. In contradistinction to their dominance in the Babylonian debates over disqualification. Notably, a different Midrashic formulation that refers to the disqualification of thieves appears in BT Sanhedrin 27a. This tradition cannot be identified explicitly as a Tannaitic tradition and might be an Amoraic formulation. It is introduced by a “מיתיבי” in the majority of manuscripts, terminology that could also be used to introduce an Amoraic Midrash. See, for example, BT Berakhot 60a, and additional examples in Higger, Michael, Otsar ha-Baraitot, vol. 9 (New York: Shulsinger Bros, 1946), 268.

34. Their disqualification is mentioned once in T Sanhedrin 5.5, discussed at length previously, and a second time in Mekhilta de-R. Ishmael, Kaspa 20, ed. Horowitz-Rabin, 322, which reads as follows: “R. Nathan says: Do not make rasha a witness, do not make hamas a witness—to exclude thieves and robbers who are disqualified for testimony.”

35. T Sanhedrin 5.2 and parallels.

36. M Rosh ha-Shana 1.8 and parallels.

37. BT Yevamot 25b quotes a tradition in the name of Rav Menahse according to which a thief is ineligible to testify, also in certain cases in which women are eligible to testify (i.e., in the case of an aguna), but this appears to be a late Amoraic interpolation.

38. T Sanhedrin 5.2. The translation is modified from Neusner, Jacob, The Tosefta (Peabody, MA: Hendrickson Publishers, 2002), 1162.

39. It is possible that this saying alludes to the opinion of R. Yehuda, who holds that practicing a dignified trade may protect one from disqualification: “אימתי. בזמן שאין לו אמנות אלא היא. אבל אם יש לו אומנות שלא היא הרי זה כשר”; see M Sanhedrin 3.3 and parallels.

40. The lack of strict illegality has been noted by many: Sabato, “Psuley ‘Edut,” 12; Schwartz, “‘Pigeon Flyers,’” 116; and Bar-On, Hatalat Goralot, 333–34. Gvaryahu, Diney Ribit, suggested that the problem with the four categories of person is their manipulative abuse of legal loopholes. He emphasizes the fact that the transactions they undertake were not enforceable in rabbinic courts (דברים שאינם יוצאים בדיינים), suggesting that their fault lies in operating outside the realm of rabbinic law. He further suggests an analogy to the way that the rabbis related to people who did not accept rabbinic orthodoxy, by excluding them from the world to come (M Sanhedrin ch. 11). However, this suggestion is inconsistent with Gvaryahu's own observation that lending money for interest and trading seventh year produce are clearly illegal according to Tannaitic law. These are by no means “loopholes.” Moreover, M Sanhedrin chapter 11 indicates that when the rabbis disapproved of a behavior that was not strictly illegal, they did not apply any concrete legal ramifications against it, but rather left the sanctions to the afterlife. In the case of the four categories, however, a real and immediate sanction is introduced.

41. In the Babylonian Talmud, many more wrongdoers are designated as disqualified from giving testimony, until the conclusion is reached that anyone who violates a prohibition punishable by lashes is deemed disqualified. On the differences between the Tannaitic and Babylonian Amoraic rules of disqualification from giving testimony, see Safrai, “Psuley ‘Edut,” 101–2; Sabato, “Psuley ‘Edut,” 15–16; and Sabato, Sanhedrin Perek Shlishi, 211–14. Schiffman, Sectarian Law, 61, suggests that the Babylonian rules are in line with the sectarian approach to this issue. A full comparison of the Tannaitic and Amoraic disqualification rules exceeds the limits of this article.

42. See the Tosafot commentary on BT Sanhedrin 24b, “ואלו הן הפסולין,” which struggles to present the usurer and the trader of sabbatical goods as only transgressing rabbinic law, and not strict Torah provisions, to account for their association with dice players and pigeon flyers.

43. Dice playing is described as clear-cut theft only in late Midrashic compilations, such as Seder Eliyahu Rabba 16 (ed. Ish Shalom, 77), and Midrash Tehilim 26.7 (ed. Buber, 220). In earlier sources it is sometimes mentioned in association with thievery, albeit without legally equating dice playing with theft; see, for example, T Baba Kama 4.7. As Lieberman points out, this ruling in the Tosefta merely teaches that “a slave would often be a thief or a gambler”; Lieberman, Saul, Tosefta Ki-Psuta, vol. 10 (Jerusalem: Jewish Theological Seminary Press, 1988), 373 (my translation). Similarly, see BT Hulin 91b. Notably, in M Shabbat 23.2 dice playing is portrayed as a Sabbath prohibition, suggesting that it would be legitimate on other days of the week: “He wishes to earn money or its equivalent through the game, and this is a (forbidden) bargain in the Sabbath”; Albeck, Chanoch, ha-Mishna, Seder Mo'ed (Jerusalem: Mosad Bialik, 1952), 70 (my translation). Other Talmudic sources mention the practice of gambling without any clear normative position against it; see BT Kiddushin 21b, JT Baba Kama 5.6 (5a). Sabato, Sanhedrin Perek Shlishi, 215 writes: “According to the plain meaning of the Mishna, it is possible that indeed (dice-playing) is not forbidden” (my translation). See also Schwartz, “Gambling,” 156, who writes that already in Tannaitic period “everyone apparently knew that something was wrong with dicing but from a purely legal standpoint there was not much that could be said about precisely what it was.” Probably in view of the disqualification of the dice player from giving testimony, some Babylonian sugyot insist that gambling must have been forbidden altogether, and not only on the Sabbath (see, e.g., BT Shabbat 149).

44. The moral ideal of self-control permeates Roman culture and literature of all genres; see, for example, North, Sophrosyne, chapter 8; Morton, Susanna and Gill, Christopher, eds., The Passions in Roman Thought and Literature (Cambridge: Cambridge University Press, 1997); and Edwards, Catharine, The Politics of Immorality in Ancient Rome (New York: Cambridge University Press, 2002). The popularity of the idea of self-control in the Roman period has mostly been discussed by scholars in the context of early Christian texts: see Stowers, A Rereading of Romans, ch. 2; and Valentine, “‘For You Were Bought with a Price,’” ch. 4. It is also addressed by numerous works that dealt with the construction of gender in late antiquity, as self-control serves as a proxy for masculinity; see the following discussion and especially note 64.

45. This description is based on Harris, Restraining Rage; North, Sophrosyne; Stowers, A Rereading of Romans; and Edwards, The Politics of Immorality. As Harris writes: “The history of Greek self-control and moderation has still to be written” (Harris, Restraining Rage, 80). The same is also true for the Roman period. For a discussion of certain variations within this tradition, see note 50.

46. As summarized by Edwards, Catherine, “Unspeakable Professions: Public Performance and Prostitution in Ancient Rome,” in Roman Sexualities (Princeton, NJ: Princeton University Press, 1997), 6695, 75: “Self-control and discernment regarding sensual pleasures were traditionally the markers of masculinity and social refinement. Immoderate pursuit of low pleasure was associated with women, slaves, and the poor—those who had to be controlled by others if they were not to fritter away their lives in self-indulgence. Thus, to enjoy vulgar pleasures—the pleasures of eating and drinking, sex, gambling, going to the games—was to risk one's identity as a cultured person.” On slavishness and the lack of self-control, see also “Free Yourself! Slavery, Freedom and the Self in Seneca's Letters,” in Seneca and the Self, ed. Shadi Bartsch and David Wray (Cambridge: Cambridge University Press 2009), 139–59.

47. Epictetus, Discourses, 4.1.58, as translated by Edwards, The Politics of Immorality, 194.

48. This of course does not imply that men always have self-control whereas women always lack it; there are several classical depictions of women who demonstrated courage and bravery, therefore showing self-control and love of freedom. See, for example, Philo, Quod. Omnis Probus Liber Sit, 115. Another example in a Jewish context is the story of Hannah, a woman who died together with her seven sons while refusing to bow down to an idol; see 4 Maccabees, ch. 15–16.

49. Schwartz, “‘Pigeon Flyers’”; Schwartz, “Gambling”; Maloney, “Usury”; and Gvaryahu, Diney Ribit.

50. The fourth book of the Nicomachean Ethics is part of the unit that deals with moderation (σωϕροσύνη) rather than with self-control (ἐγκράτεια). As noted by Michele Foucault (following North, Sophrosyne), moderation according to Aristotle is a state in which one deliberately holds to the right mean between deficiency and excess with respect to bodily pleasures and desires, whereas self-control is a state in which one dominates or rules over pleasures and desires, but must struggle to do so (The Use of Pleasure, trans. Robert Hurley [New York: Random House, 1990], 64–65). However, despite the differences between them, ἐγκράτεια and σωϕροσύνη might be conceived as sequential models of ethical self-relation, and both deal with the management of pleasure. See North, Sophrosyne, ix: “The tension between sophrosyne and the ‘heroic principle’ in the Greek character has often been recognized, but perhaps too much emphasis has been laid on their opposition, too little on their reconciliation.” She further describes σωϕροσύνη as “the harmonious product of intense passion under perfect control… perfect yet precarious control of the most turbulent forces… the perfect symbol of this excellence [is] the charioteer guiding and holding in check his spirited horses: sophrosyne [is] ‘saving phronesis’… from the assault of appetite and passion…” (ibid., x). Late antiquity arguably witnesses an intensification of both these forms of ethical self-relation. For the purposes of this article, the common denominator of the two ideas is what is at stake. I thank Virginia Burrus for her helpful comments on this point.

51. Nicomachean Ethics (NE) 1122a, based on the translation by Rackhamm, Harris, Loeb Classical Library 73 (Cambridge, MA: Harvard University Press, 1934), 203, with minor changes. I prefer this classical translation because of its relative proximity to the Jewish texts. Compare Bartlett, Robert C. and Collins, Susan D., , trans., Aristotle's Nicomachean Ethics (Chicago: University of Chicago Press, 2011), 7172. See also Eudemian Ethics (EE) III.4.1232a11–12.

52. “Greatness of soul is exhibited when the good person has the opportunity to act in ways that are conspicuously heroic, that is, when circumstances make the acts of justice, courage, liberality, and all the other virtues incredibly difficult to perform because one may be either tempted by the prospect of great pleasures or discouraged by the prospect of excessive pains”; Cullyer, Helen, “The Social Virtues,” in The Cambridge Companion to Aristotle's Nicomachean Ethics, ed. Polansky, Ronald (New York: Cambridge University Press, 2014), 146.

53. See Pakaluk, Michael, Aristotle's Nicomachean Ethics: An Introduction (Cambridge: Cambridge University Press, 2005), 173. In this context, ἐλευθερία is sometimes translated as “generosity,” however “liberality” is preferable “since it reflects the connection of the Greek noun with eleutheros, free.” See Aristotle, The Nicimachean Ethics, trans. Ross, William D. (New York: Oxford University Press, 2009), 224. And see also Bartlett and Collins, Aristotle's Nicomachean Ethics, 311. For a thinner account of liberality, which nevertheless does not change the general meaning of the passage according to the reading suggested, see Curzer, Howard J., Aristotle and the Virtues (New York: Oxford University Press, 2012), 83108.

54. The translation follows Cicero, Marcus Tullius, On Duties. Translated with Introduction, Notes, and Indexes, by Newton, Benjamin P.. Agora editions (Ithaca; London: Cornell University Press, 2016), 81.

55. On Greek versus Roman sensitivities reflected in the text containing Cicero's list, as well as its links to the Aristotelian list, see Dyck, Andrew R., A Commentary on Cicero, De officiis (Ann Arbor: University of Michigan Press, 1996), 331–33.

56. On this section, see, further, Edwards, “Unspeakable Professions,” 83. On the use of liberalis in Roman literature, see Manning, Charles E., “Liberalitas: The Decline and Rehabilitation of a Virtue,” Greece & Rome 32 (1985): 7383.

57. For the attribution of the work to Plutarch, see Hunter, Richard and Russell, Donald, eds., Plutarch: How to Study Poetry (De audiendis poetis) (Cambridge: Cambridge University Press, 2011), 12. The argument made here holds regardless of the accuracy of this attribution.

58. Gvaryahu, Diney Ribit. Gvaryahu disagrees with the reading proposed here of both Plutarch and the rabbis, and offers a different explanation of the four categories' disqualification. See note 40.

59. De audiendis poetis, 34 d. The translation follows Hunter and Russell, Plutarch: How to Study Poetry, 181.

60. The verb ὀρτυγοκοπεῖν literally means “striking quails.” Striking was intended to make the birds angry (as in הממרא את היונים in the Tosefta), and in this way encourage them to fight. On bird fights in Greek and Roman cultures, see Jennison, George, Animals for Show and Pleasure in Ancient Rome (Manchester: Manchester University Press, 1937), 10, 18, 101. A different practice that involved striking birds was a game in which the bird was repeatedly struck. If the animal withstood this ill-treatment, its owner won. See Hunter and Russel, Plutarch: How to Study Poetry, 194.

61. Interestingly, according to Tannaitic literature, trading in sabbatical produce is only forbidden when done on a large, commercial scale, but is allowed on a small scale: see M Shevi'it 7.3, 8.3, T Shevi'it 6.22.

62. Plutarch, Praecepta gerendae reipublicae, 819e, links small-scale traders with moneylenders, presenting both as examples of shameless greed (for the association of the two, see also Aristotle, EE 12115a32). In Regum et imperatorum apophthegmata, 173c, he implies that small-scale trade is as shameful as keeping a brothel, a practice that was considered a disgraceful servicing of base passions. The two character types are similarly associated in Julius Pollux, Onomasticon, 6.128. Quail fighting is attributed to the greedy king Meidias in Plato, Alcibiades 120a9. Marcus Aurelius, Meditations, I.6, lists it among the acts he learned not to participate in.

63. See also Plutarch, De puerorum educatione libellus, 12b. Famously, Cicero criticizes Antony for excessive drinking (Orationes Philippicae, 2.63) and gambling (ibid., 2.66–8), and further links this behavior with the habit of associating with slaves, actors, and pimps, and sharing their base pleasures (ibid., 2.58, 2.101). Seneca, De vita beata 7.7.3, associates drinking with pleasure, softness, and darkness, as opposed to virtue. On drinking and self-control in the context of Octavian propaganda, see Porter, Patrick, “Unlawful Passions: Sumptuary Law and the Roman Revolution,” Melbourne Historical Journal 28 (2000): 118.

64. See Stowers, A Rereading of Romans, especially 50–52; Moore, Stephen D. and Anderson., Janice C.Taking It Like a Man: Masculinity in 4 Maccabees,” Journal of Biblical Literature 117 (1998): 249–73; Conway, Colleen, Behold the Man: Jesus and Greco-Roman Masculinity (Oxford: Oxford University Press, 2008), especially 15–34; Gleason, Maud W., Making Μen: Sophists and Self-Presentation in Ancient Rome (Princeton, NJ: Princeton University Press, 2008); Cobb, L. Stephanie, Dying to Be Men: Gender and Language in Early Christian Martyr Texts (New York: Columbia University Press, 2012); and Foxhall, Lin and Salmon, John, eds., Thinking Men: Masculinity and its Self-Representation in the Classical Tradition (London: Routledge, 2013).

65. Plato, Timaeus, 90e.

66. Cicero, Orationes Philippicae, 3. See also Diogenes Laertius, 7.1.8; Josephus, Antiquitates Judaicae (AJ) 13.108. For a broad discussion of accusations of effeminacy and its meaning in Roman literature, see Edwards, The Politics of Immorality, ch. 2, especially 68–78.

67. The analogy comparing Achilles to the maidens stresses the weakness attributed to women, therefore highlighting the agonistic character of resistance to temptation. This enables the classification of this reference as relating to self-control rather than moderation; see note 50.

68. A parallel ruling in slightly different wording appears in T Sanhedrin 5.2: אבל עידות שהאישה כשירה לה הן כשירין לה. See also BT Sanhedrin 27b and JT Sanhedrin 3.5.

69. Notably, in the rabbinic period, an ongoing discourse attempted to present conduct according to the laws of the Torah as a manifestation of self-control; see Stowers, A Rereading of Romans, 56–64. Especially remarkable is an articulation of this claim with reference to the prohibition of usury in 4 Maccabees 2.8: “Otherwise how could it be that someone who is habitually a solitary gormandizer, a glutton, or even a drunkard can learn a better way, unless reason is clearly lord of the emotions? Thus, as soon as one adopts a way of life in accordance with the law, even though a lover of money, one is forced to act contrary to natural ways and to lend without interest to the needy” (Brettler, Marc, Newsom, Carol, and Perkins, Pheme, eds., The New Oxford Annotated Apocrypha: New Revised Standard Version [New York: Oxford University Press, 2010], 379). Indeed, such discourse is mostly found in Jewish texts that are also expressly Hellenistic. However, several rabbinic sources that depict the Patriarchs as models for overcoming lust and greed, or emphasize the special challenges posed by commandments that require one to restrain greed, gluttony, and sexual desires, seem to be in agreement with this position. See, for example, Sifre Deuteronomy 33, M Makkot 3.15, T Horayot 1.5, Sifra Kedoshim 10.22.

70. The infiltration of self-control discourse into rabbinic literature has been discussed by scholars mostly with regard to the construction of gender and sexuality. Michael Satlow argues that the construction of masculinity in rabbinic literature is deeply influenced by the ethos of self-control: “‘They Abused Him like a Woman’: Homoeroticism, Gender Blurring, and the Rabbis in Late Antiquity,” Journal of the History of Sexuality 5 (1994): 1–25; and “‘Try To Be a Man’: The Rabbinic Construction of Masculinity,” Harvard Theological Review 89 (1996): 19–40. Daniel Boyarin opposes this approach and strives to present rabbinic Judaism as an alternative to the Western cultural myth, which sees maleness as “active spirit” and femaleness as “passive matter.” See Boyarin, Daniel, Carnal Israel: Reading Sex in Talmudic Culture (Berkeley: University of California Press, 1993), and also Boyarin, Daniel, Unheroic Conduct: The Rise of Heterosexuality and the Invention of the Jewish Man (Berkeley: University of California Press, 1997). Rosen-Zvi, Ishay, , in Demonic Desires: ‘Yetzer Hara’ and the Problem of Evil in Late Antiquity (Philadelphia: University of Pennsylvania Press, 2011), has shown that the construction of the passions in rabbinic texts reflects demonological Eastern influences, which portray the evil inclination as external to the self, as opposed to the Greco-Roman perception of temptations as forming the baser part of the individual soul. In a different work, he doubts the influence of the Greco-Roman idea of gender fluidity on rabbinic constructions of masculinity; see Rosen-Zvi, IshayThe Rise and Fall of Rabbinic Masculinity,” Jewish Studies Internet Journal 12 (2013): 122. Notably, occurrences of the ideal of self-control in rabbinic literature have so far been identified mostly in literary contexts; see Levinson, Joshua, “An-Other Woman: Joseph and Potiphar's Wife—Staging the Body Politic,” Jewish Quarterly Review 87 (1997): 269301; and Schofer, Jonathan Wyn, The Making of a Sage: A Study in Rabbinic Ethics (Madison: University of Wisconsin Press, 2005). For self-control in a halachic context, see Balberg, Mira, Purity, Body and Self in Early Rabbinic Literature (Berkeley: University of California Press, 2014), 146147.

71. The exception discussed in this ruling is the case of a swarm of bees flying from a field owned by one person to a field owned by another. Here, the testimony of women and minors is accepted, despite the general rule that requires two adult male witnesses to decide monetary disputes. This exception is because of the special nature of bees, ownership of which was a very volatile issue in the ancient world. If the owner was not able to prove his ownership on the spot, he would lose the bees. See Crook, John A., Law and Life of Rome (Ithaca, NY: Cornell University Press, 1967), 142.

72. See also the parallel in JT Baba Kama10:2: “ר‘ חיננא בר פפא בשם ר‘ יוחנן….אם יצאו וחזרו אני אומ’ מפני יראה ופיתוי אמרו”. Notably, the assumption that women are more susceptible to intimidation and seduction is not the only view found in rabbinic literature. Other rabbinic sources emphasize the stability of women's opinions as compared with men's weakness; see Genesis Rabba 17.8.

73. Shimshon Etinger, Isha ke-’Ed be-Diney Mamonot, Dine Israel 20–21 (2000–2001) 241–67, at 247; and Ettinger, Re'ayot, 162. Others mention the connection to the Hellenistic context but do not elaborate on its meaning: Kahana, Menahem I., Sifre Zuta Dvarim (Jerusalem: Magnes Press, 2002), 280; and Ilan, Tal, Jewish Women in Greco-Roman Palestine: An Inquiry into Image and Status (Tübingen: J. C. B. Mohr, 1995), 163.

74. Long, Anthony A. and Sedley, David N., The Hellenistic Philosophers (Cambridge: Cambridge University Press, 1987), 410.

75. Quod. Omnis Probus Liber Sit, 22. Colson, Francis H., trans., Philo in Ten Volumes IX, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1941), 23. See also Cicero, Epistulae ad Atticum, 9.2a.2, and the fragment quoted by Plutarch 34c, 106d: “What man who racks not death can be a slave?” Nauck. trag. Graec. Frag. Euripides No. 958.

76. Several rabbinic sources portray women as inherently unable to master their desires, in accordance with the Hellenistic theme; see Rosen-Zvi, Demonic Desires, ch. 7, and also “Do Women Have a Yetzer? Anthropology, Ethics and Gender in Rabbinic Literature,” in Spiritual Authority: Cultural Power Struggles in Jewish Thought, ed. Howard Kreisel, Boaz Huss, and Uri Ehrlich (Beersheba: Bialik Institute, 2010), 21–34.

77. The legal ineligibility of women is frequently explained by Roman jurists of the second century, such as Gaius and Ulpian, in terms of their levity and weakness of character (animi levitas, sexus infirmitas); that is, their lack of self-control. Although in some places the reference to women's weakness is a late addition, in other places it is probably original. See Dixon, Suzanne, “Infirmitas sexus: Womanly Weakness in Roman Law,” Legal History Review 52 (1984): 343–71. The same attitude is clearly expressed in a passage from codex Theodosius (Cod. Theod. 9.24.1pr): “It was because of the fault of frivolity and the inconstancy of her sex and judgment that a girl is altogether excluded by the ancients from conducting suits in court and from giving testimony and from all matters pertaining to courts.” Others, however, have argued that this language is most likely a reflection of Roman rhetoric rather than the original reason for these rules; see Gardner, Being a Roman Citizen, 88–89. Nonetheless, for the purposes of this article, Roman rhetoric itself is highly significant.

78. The triad usually also includes slaves. See Aristotle, Politica, 1260a10–14. Recall that slaves are mentioned as comparable to women in M Rosh ha-Shanah 1.8.

79. As translated by Mason, Steven, ed., and Feldman, Louis H., trans., Flavius Josephus: Translation and Commentary: Vol. 3: Judean Antiquities 1–4 (Leiden: Brill Academic Publishers, 2000), 411–12. The Jewish context of this paragraph in AJ escaped the commentators; see ibid., 412 note 674, and the subsequent discussion.

80. See, for example, AJ 3.15.2. Notably, rabbinic literature, too, uses the terminology of lightheadedness to describe women's lack of self-control: BT Kiddushin 80b does so in explaining women's susceptibility to temptation, and BT Shabbat 33b presumes that women may be induced to act out of fear. These two instances show that the rabbis preserve the meaning of self-control discourse in its original cultural context.

81. For example, AJ 15.6.3.

82. I prefer the term “translation” over “transplantion” because my case study clearly involves the extensive reworking of the Roman legal norm in order to adapt it to a new Jewish context. On the meanings of “translation” in this context, see Foljanty, “Legal Transfers,” 6–14.

83. “The term is not used only of disqualifications; it often appears in ancient texts in a less technical sense, meaning the degraded moral state that might or might not be recognized with the stamp of infamia by the law”; Edwards, “Unspeakable Professions,” 69. Legal historians tend to draw a distinction between moral and legal infamia; for a discussion of the terminology used by ancient authors, see Kaser, “Infamia und ignominia,” 227–35; and Wolf, “Das Stigma ignominia,” 56–62. However, ancient writers connected the two, implying a conceptual link between them. See, for example, Cicero, De legibus, 1.90.50–51. Obviously, the two senses of the term closely overlapped when the legal institution was first developed. For certain reservations regarding this approach, see Gardner, Being a Roman Citizen, 110–11.

84. They were debarred from standing for election to magistracies (Tabula heracleensis) or from sitting on juries (Lex Acilia repetundarum). Actors, it seems, were not assigned to a tribe and were therefore unable to vote; see Greenidge, Infamia, 34–35.

85. Greenidge, Infamia, 154, argues that “infamia was primarily a matter of public law,” and that the private law effects were only “secondary.” However, Gardner, Being a Roman Citizen, 111, sees the public aspects of infamia as less central and claims that the restrictions resulting from infamia “are mainly concerned with private rights.”

86. Greenidge, Infamia, 158–60; and Gardner, Being a Roman Citizen, 111–18.

87. Greenidge, Infamia, 166–70l and Gardner, Being a Roman Citizen, 118–23. The incapacity to be a witness is described by Greenidge as “a civic disability which had a long history throughout the whole period of Roman law, and which, in one of its aspects, is the oldest disability of the kind known to us” (Infamia, 165). The ineligibility to testify is attested as a provision for procedure created by a criminal law, as well as a penalty inflicted by such a law (D. 22.5.3.5; 28.1.20.6; 48.11.6). Ulpian twice mentions it as a penalty resulting from condemnation for libellus compositions, instituted either by a senatus consultum (D. 28.1.18.1) or by a law (D. 47.10.5.9). A complete account of the disqualification from giving testimony, which includes all infamous professions, is nowhere to be found. As Greenidge writes: “We see from these instances how very partial was the legal application of this disability for evidence based on character and on the fact of condemnation; nowhere is it stated that a definite list of infames was ever excluded, as a whole, from testimony” (Infamia, 167). Actors and dancers do not appear in the sources mentioned that discuss testimony. Nevertheless, it is clear that those in infamous professions, including gladiators and beast fighters, actors, prostitutes, and brothel keepers, were subject to legal infamia already at the time of Julius Caesar (see Tabula heracleensis, lines 112–23), and scholars believe that this also included ineligibility to testify. For a discussion of the importance of the moral standing of witnesses in ancient Rome, see Garnsey, Peter, Social Status and Legal Privilege in the Roman Empire (Oxford: Clarendon Press, 1970), 231.

88. The original meaning of intestabilis is the ineligibility to serve as a witness to a will. Later, it was expanded to include also the inability to summon others as witnesses to one's will; see Greenidge, Infamia, 168–69; and Gardner, Being a Roman Citizen, 118–22.

89. Some argue that these professions are the “core” of Roman infamia; see McGinn, Prostitution, 65–69.

90. For example, D.3.1.1.6; D.3.2.2.5. These references highlight the fact that some shameful occupations (male prostitution as well as beast fighting) were not considered infamous if they were performed as a voluntary practice. See Gardner, Being a Roman Citizen, 145, 149–52. Edwards, “Unspeakable Professions,” 76, thinks that the requirement of payment is a matter of dispute among Roman jurists. On the special concern with shameful professions in Roman culture, see also Bond, Sarah E., Trade and Taboo: Disreputable Professions in the Roman Mediterranean (Ann Arbor: University of Michigan Press, 2016).

91. According to Suetonius's description of an action by Emperor Augustus (Suetonius, Divus Augustus, 39). Cod.ii.11 (12) tells us that usury was declared infamous at the end of the third century CE, however, Greenidge argues that this norm goes back much further. As he writes: “It may, therefore, be treated as one of the sources of infamia that had a long, if interrupted, recognition in Roman law; although it is only known to us as producing this effect from a constitution of Diocletian and Maximian of the year 290 A.D.” (Infamia, 140–41).

92. Ibid., 70, in reliance of Tacitus, Annales, 13.23.

93. Anyone dishonorably discharged from the army was regarded as unfit both to govern his fellow citizens (lex Iulia municipalis) and to litigate or give evidence on their behalf (D. 3.2.1.1). See also Greenidge, Infamia, 71.

94. For example, Gaius, Institutiones 4.182, D.3.2.1. See also Greenidge, Infamia, 73; and Gardner, Being a Roman Citizen, 125, 152.

95. The activities that entailed infamia “are numerous”; Gardner, Being a Roman Citizen, 110. See further her discussion of such activities at 128–53. With regard to infamous professions, see Edwards, “Unspeakable Professions,” 75: “The lists of persons subject to various disabilities do not always correspond exactly… the question of exactly which professions were to bring infamy on their practitioners was certainly a matter of some dispute among the jurists.”

96. For a survey and review of such opinions, see Gardner, Being a Roman Citizen, 110, n. 4 and 5 and the references there. For a criticism of such scholarly attempts, see Kaser, “Infamia und ignomia.”

97. Edwards is the one who most convincingly outlines the link between legal infamia and the lack of self-control, however she does not suggest that this linkage is itself the reason that the infamous were subjected to legal restrictions.

98. See note 89.

99. This is the central argument throughout Edwards, “Unspeakable Professions.” Gardner maintains that the link to sexuality alone does not suffice to create infamia, which requires also the performance of a service for payment (see note 90). Notably, the requirement of payment, when it exists, is in line with the Roman view that shameful professions reflect a lack of control over one's greed, as is demonstrated by the paragraph from Cicero's De Officiis cited above.

100. Tertullian, De Spectaculis 22. See Edwards, “Unspeakable Professions,” 78.

101. See the many references mentioned by Edwards, “Unspeakable Professions,” 83–84.

102. Tertullian, De Spectaculis 17: “The lewd performance of the actor playing a woman, stamping out all sense of sex and shame, so that they are more likely to blush at home than onstage, and finally the obscene experiences of the pantomime actor, who must suffer sexual humiliation from his youth, if he is to become a performer.” Referring to this passage Edwards writes: “So closely are deviant sexuality and the stage associated for Tertullian that he represents the experience of being penetrated as a necessary part of an actor's professional training” (“Unspeakable Professions,” 80).

103. Edwards, “Unspeakable Professions,” 81, and the references in note 55.

104. Ibid.

105. Edwards, The Politics of Immorality, 101–2.

106. D.48.19.14, D.49.16.4.1–9. See Greenidge, Infamia, 154–57.

107. Greenidge, Infamia, 71, n. 4.

108. Actors were accused of adulterous liaisons (Tacitus, Annales 4.14.4; Cassius Dio, 57.21.3). Juvenal draws attention to the effeminacy of a tunic-clad retiarius (2.143 ff.; 8.199–210). According to Edwards, “Unspeakable Professions,” 77, the conception of gladiators and beast fighters was ambivalent: on the one hand “they were a reminder of the virtue (virtus, ‘military courage,’ ‘manliness’) that had made Rome great. But they were also despised.”

109. In D.3.1.1.6, Ulpian discusses the legal infamia imposed on a man “who has hired himself as a beast fighter” shortly after mentioning the similar case of one “who has been physically treated like a woman.” See also D.22.5.3.5, which mentions beast fighters together with female prostitutes.

110. Edwards, “Unspeakable Professions,” 85.

111. D.22.5.21.2. Torture was required to avoid the shame of deciding a case against the defendant on the basis of testimony by a person of a lower rank. See also Gardner, Being a Roman Citizen, 143–44.

112. In this context, Roman jurists compare the situation of infmaes to that of slaves. See, for example, D.48.19.28.16 and the discussion by Edwards, “Unspeakable Professions,” 73–75.

113. “Women were altogether exempt from the censorian infamia of the Republic, since it was concerned wholly with civic honors, in which women had no share. Neither could they be mentioned in the third Edict which contained the list of the praetorian infames, since this was a list of those who could postulate only in certain cases for others, and women were mentioned in the second Edict amongst those who could not postulate for others at all” (Greenidge, Infamia, 172). Admittedly, in several texts we find the attribution of infamia to women; for example, in the case of female prostitutes and women caught in adultery. For a discussion of this complexity, see Greenidge, Infamia, ch. 7. McGinn, Prostitution, 21–24, thinks that women should not be described as “second class and partial” citizens, while at the same time stressing that the exclusion of infames, which was similar to that of women, “amounted to a prescribed set of exclusions from the responsibilities and privileges of a full Roman citizen.” It is regularly stated that “the status [of infamia] traditionally disqualified men from serving in key civic positions within Late Antique cities”; Bond, “Altering Infamy,” 4.

114. D.28.1.20.6.

115. Thomas, Yan, “The Division of the Sexes in Roman Law,” in A History of Women: From Ancient Goddesses to Christian Saints, ed. Pantel, Pauline S. (Cambridge, MA: Harvard University Press, 1992), 83138, at 137.

116. See note 77.

117. Greenidge, Infamia, ch. 8; McGinn, Prostitution, 46–47; and Gardner, Being a Roman Citizen, 153–54.

118. D. 4.1. See Berger, Encyclopedic Dictionary, 682; and Kaser, Max, “Zur in integrum restitutio, besonders wegen metus und dolus,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 94 (1977): 101–83.

119. Different rehabilitation mechanisms were available at certain periods for other types of infamia. See Greenidge, Infamia, 181–85.

120. According to the Erfurt Manuscript. In the Vienna Manuscript there is a clear scribal error in the first line, but otherwise the wording is the same. Compare the versions of the baraita in JT Sanhedrin 3.3 and parallels.

121. See Rakover, Nahum, Takanat ha-Shavim: Avaryan she-Ritzah et Onsho (Jerusalem: Moreshet ha-Mishpat be-Israel, 2007), 361438.

122. מודים חכמים לר”א בקטנה שהשיאה אביה וגרשה והחזירה [עליו] ומת שחולצת ולא מתיבמת [הואיל ונאסרה] עליו שעה מפני שגירושיה גירושין גמורים ואין חזרתה חזרה גמורה. Neusner, The Tosefta, 732, translates: “Sages concede to R. Eliezer in the case of a minor whose father married her off, and whose husband divorced her, then took her back, and died, that she performs the rite of haliṣah and does not enter into levirate marriage, for she has been prohibited to him for a single moment. The reason is that the act of divorce is completely valid, but the act of remarriage is not completely valid.” The legal status of this woman is doubtful: as she is still a minor when her husband remarries her, only her father is legally eligible to give her in marriage at such a young age. However, following her divorce, she does not return to the authority of her father, and is deemed “an orphan in her father's lifetime” (M Yevamot 13:6). In this gray area, the woman can no longer be given in marriage by her father, but she is still unable to enter into a marriage contract herself as an adult.

123. Notably, in Roman law, transactions performed by minors were especially prone to be granted the sanction of restitutio in itegrum. See, for example, D. 3.3.39; 4.1.6; 4.1.8; 4.4; and more.

124. See note 97. In “Unspeakable Professions,” 84, Edwards points to the fact that pleasure is routinely contrasted by public moralists with public duty, while stressing the danger of political instability posed by those who practiced the infamous occupations. In her book The Politics of Immorality in Ancient Rome, 100, she claims that the Roman aversion toward stage actors relates to the anarchic potential of the theater. On this anarchic potential, see Leppin, Hartmut, “Between Marginality and Celebrity: Entertainers and Entertainments in Roman Society,” in The Oxford Handbook of Social Relations in the Roman World, ed. Peachin, Michael (Oxford; New York: Oxford University Press, 2011). As he writes: “The mass that congregated for these public amusements were precariously exposed to the influence of the entertainers, who thus potentially could exercise significant power” (at 661); and “the fact that they could exercise influence over the political life of the community at an ‘improper’ junction made them dangerous in the eyes of the elite” (at 673).

125. See, for example, Cicero, Paradoxa Stoicorum, 33: “But granted that this person is lauded as commander in chief, or even that he is so styled, or is deemed worthy of that title: commander in what sense? Or to what free man will this person possibly issue commands, who cannot command his own desires? First let him curb his lusts despise pleasures, restrain his angry temper, control his avarice, repulse all the other defilements of the mind. Let him start commanding others only when he has himself left off obeying those most unprincipled masters, unseemliness and turpitude: so long as he is subservient to these he will be altogether unworthy to be deemed not merely a commander but even a free man.” Translated by Harris Rackham. Loeb Classical Library 349 (Cambridge, MA: Harvard University Press, 1942), 285. For the association of self-mastery with political leadership in Roman culture, see Star, Christopher, The Empire of the Self: Self-Command and Political Speech in Seneca and Petronius (Baltimore, MD: The Johns Hopkins University Press, 2012), especially ch. 1.

126. Thomas, “The Division of the Sexes,” 137, note 166 and the references there.

127. On the role of the witnesses in mancipatory acts, see Meyer, Elizabeth A., Legitimacy and Law in the Roman World: Tabulae in Roman Belief and Practice (Cambridge: Cambridge University Press, 2004), 118–19 and nn. 111–12. Meyer suggests that in this context one should view witnesses as “judges of correctness” (ibid., 159). For the use of testes as judges, Meyer is building on the work of Watson, Alan, International Law in Archaic Rome: War and Religion (Baltimore, MD: The Johns Hopkins University Press, 1993), 1019.

128. Meyer, Elizabeth A., “Evidence and Argument,” in The Oxford Handbook of Roman Law and Society, ed. Ando, Clifford, Du Plessis, Paul J., and Tuori, Kaius (Oxford: Oxford University Press: 2016), 270–82. See also Riggsby, Andrew M., “The Rhetoric of Character in the Roman Courts,” in Cicero the Advocate, ed. Powell, Jonathan G. F. and Paterson, Jeremy (New York: Oxford University Press, 2004), 165–85; and Lendon, Jon E., Empire of Honour: The Art of Government in the Roman World (Oxford: Oxford University Press, 1997).

129. On the importance of witnesses' auctoritas, see Meyer, “Evidence and Argument,” 275–76.

The author thanks Ishay Rosen Zvi, Shai Lavy, Maren Niehoff, and especially Omer Michaelis and Yakir Paz, for reading and commenting on previous drafts of this article.

Disqualified Witnesses between Tannaitic Halakha and Roman Law: The Archeology of a Legal Institution

  • Orit Malka

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