Tannaitic literature, composed in Roman Palestine during the second to third centuries, includes an eclectic list of four categories of person disqualified from giving testimony, which has long defied interpretation.1 Curiously, the list includes “a dice-player, a usurer, pigeon flyers, and traders in Seventh Year produce” (המשחק בקוביה, המלוה בריבית, מפריחי יונים וסוחרי שביעית).2 To this day, scholars struggle to understand the reasons that these particular categories of person were singled out from all other wrongdoers to constitute the primary list of those disqualified from giving testimony.
The commonly accepted scholarly hypothesis is that these four were disqualified because they were perceived as a type of thieves.3 This understanding assumes the existence of a general principle according to which thieves cannot serve as witnesses, a principle that presumably predated the disqualification of these four types of person.4 However, as I show in this article, this presumption is not supported by the textual evidence. In fact, the list of four categories of person seems to be part of an early stratum in which the rabbis deliberated for the first time over the legal possibility of disqualifying certain individuals for testimony based on negative behavior.5 This article maintains that the disqualification of the four categories, and actually the entire apparatus that governs their disqualification according to Tannaitic literature—including the comparison between their degree of ineligibility and that of women, as well as the description of their rehabilitation process using the unique phrase “complete return” (חזרה גמורה)—is not indigenous. Rather, it is indebted to a process of legal borrowing from Roman law, where there was a well-established tradition of disqualifying persons of ill repute from giving testimony, through the legal mechanism of infamia.6
The links between Tannaitic disqualification for testimony and the Roman infamia are not obvious, and require patient textual excavation. Unveiling them demands an awareness of the characteristic traits of Greco-Roman ethical discourse on self-control and how it plays out in texts from late antiquity,7 a matter to which I dedicate a significant portion of this article. The underlying presence of an ethics of self-control in both the Tannaitic disqualification for testimony and Roman infaimia is a key common element of the two legal mechanisms. In addition to these shared philosophical underpinnings, I demonstrate structural affinities between the two mechanisms as well as textual similarities. This multidimensional resemblance between the Tannaitic and Roman mechanisms supports the conclusion that the rabbis designed their rules of testimony disqualification as a variation on Roman regulation of similar issues.
This article aims to reconstruct the intellectual foundations of a legal institution. I will offer a genealogical inquiry into the jurisprudential grounds of the Tannaitc rules regarding disqualification for testimony, and suggest a link between these rules and Roman infamia. This inquiry will be conducted through a philological study of these legal institutions as they are depicted in the texts, temporarily bracketing the question of how they were actually practiced in Jewish or Roman courts.8 Investigating the rabbis' motivations in developing these legal institutions, as well as the mechanisms of transmission through which they became acquainted with Roman legal structures, shall be left for a future study.9
This article studies a central institution of Jewish law, and as such may be of interest to legal historians of Jewish law. It may also interest historians of Roman law, because the story I tell here provides a rare opportunity to study a Roman legal institution through the external perspective of jurists from a Roman province. In addition, I believe that this article may be of interest to legal historians working on the history of evidence law in other legal cultures. Rules regulating the inadmissibility of evidence have been studied mostly in the context of early modern common law, and they are often explained by scholars through a probative perspective, assuming that the purpose of such rules is mainly to exclude false evidence.10 However, scholars of ancient law have already noted the inadequacy of this approach to the study of laws regarding disqualified witnesses in ancient legal regimes, in which testimony is excluded based on considerations other than probative value.11 Beyond reinforcing this observation, this article contributes to an alternative conceptual framework for the study of witness disqualification laws from late antiquity, which accords a more important role to the political and ceremonial aspects of testimony, in addition to its probative function.
Finally, this article may also appeal to other legal historians, as well as to comparative lawyers, because it provides a non-trivial example of a culturally nuanced legal transfer. In this example, the borrowed legal mechanism (certain aspects of Roman infamia) underwent a process of complex cultural interpretation and adaptation that gave it a new form and enabled its integration into the receiving legal regime (Tannaitic halakha). This process differs greatly from the more frequently discussed instances in the literature on legal transplants in which the transferred norm remains identifiable throughout the process of transfer.12 Therefore, it is an important test case for examining the adequacy of the metaphors that are used in the scholarly discussions of legal transfer and may deepen our understanding of the various ways in which the adoption of a foreign legal norm actually works.13
The article is composed of three parts. Part I examines and demonstrates the shortcomings of the prevailing scholarly premise that thieves constitute the original category of incompetent witnesses. Part II suggests an alternative reading of the list and its guiding rationale in light of the ethical ideal of self-control. Part III demonstrates the parallels between the Tannaitic disqualification rule and Roman infamia. I conclude by pointing out a new direction for the study of legal testimony in late antiquity in light of the analysis set forth in this article.
Part I: “Thieves According to the Rabbis”: The Common Explanation and its Limitations
Both traditional commentators and contemporary scholars assume that the four categories of person included in the list were disqualified from giving testimony because they were perceived as belonging to the more general category of “גזלנים וחמסנים”;14 in this context, this is a hendiadys loosely indicating those who unlawfully take other people's money (henceforth referred to as “thieves and robbers”).15 Thieves and robbers are indeed disqualified for testimony according to Tannaitic literature.16 Moreover, in referring to them, the Tosefta adds a general criterion for disqualification, stating that “all those suspected in money matters are disqualified from giving testimony” (וכל החשודין על הממון עדותן פסולה).17 This statement was interpreted as a generalization applicable also to the list of four categories of person, indicating that they too were disqualified because, like thieves, they were suspected in money matters.18
Surely, all four categories of person on the list engage in inappropriate ways of making money. The dice-player is a gambler;19 the usurer is a person who breaks the Torah's prohibition on lending money at interest;20 and the trader of seventh-year produce violates the rules forbidding trade in the produce of the seventh year. Pigeon flyers are harder to identify, as this epithet is found only in the context of witness disqualification. However, all proposed identifications of these figures involve improper earnings. The Tosefta describes them as people who engage in bird fights, a practice that most likely included gambling.21 Some scholars prefer an explanation that appears in the Babylonian Talmud, according to which pigeon flyers were fowlers, trapping and later selling birds that may have originally belonged to others.22 Scholars also observed that all four practices are not occasional behaviors, but rather regular occupations or ways of making a living, an observation that again stresses misappropriation as crucial for inclusion in the list.23 Furthermore, early extensions of the list (attributed to Tannaitic stratum) disqualified herdsmen, tax collectors and publicans,24 all of whom adhere to a governing rationale of similarity to the behavior of thieves.25 The four categories of person were therefore associated with illicit, larcenous, money making, in line with sayings in the Babylonian Talmud that refer to them as “thieves according to the rabbis” (גזלנים דדבריהם).26
As plausible as this explanation seems, there are two good reasons to doubt that the four categories of person were originally disqualified because of the resemblance between their activities and thievery. First, even if we accept that they are similar to thieves, they obviously do not represent the archetypal examples of thievery.27 Therefore, if we are to think of them as types of thieves, we must postulate that initially thieves were disqualified and that then, after their disqualification was accepted as a general principle, the disqualification was extended to those who resembled them, including these four categories. However, the sources preserve a contrasting historical account, according to which thieves were disqualified for testimony only after the four categories of person were disqualified.
Referring to the disqualification of the four categories of person, the Tosefta in tractate Sanhedrin 5:5 states the following: “They added to them herdsmen and thieves and robbers and all those who are suspected in matters of money—their testimony is disqualified” (הוסיפו עליהן הרועין והגזלנין והחומסנין וכל החשודין על הממון עדותן פסולה).28 Here thieves are presented as a later addition to the existing list of four categories of person. Some scholars have tried to explain away this difficulty by emphasizing the general principle that appears in this ruling—that all those who are suspected in money matters are disqualified from giving testimony—and may be the reason for repeating the supposedly known disqualification of thieves and robbers.29 However, this solution cannot be applied to other versions of the same tradition,30 like that found in the Babylonian Talmud, which simply reads: “They added to them thieves and robbers” (הוסיפו עליהן הגזלנין והחמסנין).31 This wording makes clear that thieves and robbers were the ones added to the original list, and not vice versa.32
The other reason to doubt the disqualification of the four categories of person as secondary to the disqualification of thieves is that the latter are rarely discussed in Tannaitic sources touching on the subject.33 Thieves and robbers are briefly mentioned as ineligible to testify in two instances,34 but they are not mentioned in the more central sources where the terms and conditions of witness disqualification are discussed in reference to the four categories of person. For example, the Tosefta in tractate Sanhedrin deals exhaustively with the processes of rehabilitation: each of the four categories of person is addressed separately, and prescribed specific requirements for performing a “complete return” (חזרה גמורה, a unique phrase that I shall discuss at length in the third part of this article) that will restore their former status as legitimate witnesses.35 The dice player must break the blocks of wood that he used for gambling, the usurer must tear up the promissory notes he holds, and so on. Thieves and robbers, on the other hand, are not mentioned, nor are they anywhere prescribed a similar process for rehabilitation. Similarly, when the Mishnah in tractate Rosh Hashana discusses the range of disqualification from giving testimony, it clarifies that the four categories of person (as well as slaves) are ineligible as witnesses only in those cases in which women are ineligible: “Any testimony for which a woman is not eligible, these are also not eligible for” (כל עדות שאין האשה כשירה לה אף הן אינן כשרין לה).36 However, there is no mention of thieves and robbers and their scope of disqualification.37 The fact that these rulings refer only to the specific categories of person, and not to the supposedly more general category of thieves and robbers, is in accordance with the historical account, mentioned previously, that presents thieves and robbers as secondary, and a late addition to the original list. Therefore, it seems that the list reflects the original rabbinic treatment of the disqualification of certain individuals from serving as witnesses on the grounds of negative behavior.
Part II: Defective Morality
What are the alternatives to the thief hypothesis? What kind of moral deficiency originally led to the disqualification of the four categories of person, if it was not their unlawful acquisition of money? Several suggestions were proposed already in traditional sources. The Tosefta emphasizes the opportunism of the trader of seventh year produce, who “sits idle for six years and once the Seventh Year comes, stretches out his hands and legs and does business in the fruits of transgression” (זה היושב ובטיל בשאר שני שבוע כיוון שהגיע שנת השמטה התחיל מפשיט ידיו ורגליו ונושא ונותן בפירות עבירה).38 According to the Babylonian Amora Rav Sheshet, the problem with dice players is that “they are not involved in settling the world” (לפי שאין עסוקין ביישובו של עולם).39 Certain modern scholars made further suggestions, stressing the fact that, despite their obvious disrepute, some of the practices listed do not amount to full criminality.40 However, none of these suggestions provides a satisfactory explanation for the unique composition of the list and the choice of these particular four categories of person from among all other wrongdoers engaging in similarly (or more) undesirable behavior, who in the Tannaitic stratum are not disqualified from giving testimony.41
Indeed, it is hard to make a plausible case for a common denominator of immorality shared by the four categories, and for a good reason. As noted already by the traditional commentators, from a Jewish perspective the list exhibits a confusing heterogeneity:42 there is a clear gap between the extreme criminality of, for example, the usurer, who illegally takes money while violating a central prohibition of Torah law, and the dice player, of whom one is hard pressed to say which law he transgressed at all.43 By definition, it is impossible to escape this heterogeneity while maintaining a Jewish point of view. However, turning to the Greco-Roman context, it is easy to trace an identifiable ethical ideal, extremely popular in the Roman period, which was encoded in this list: the ideal of self-control.44
The Four Categories as Lacking Self-Control
I will present a general outline of the moral ideal of self-control.45 It is an ethics primarily focused on the control of sensual and emotional temptations and influences. Self-control means overcoming gluttony, lust and greed, as well as fear and anger, all forces that divert a person from acting prudently. More importantly for this article, a lack of self-control is commonly represented in literature by two metaphors: slavishness and femininity.46 The passions and desires are considered to possess an enslaving quality: either a person controls his passions, or they control him. Therefore, a man who lacks self-control is described as slavish, as expressed by the first-century Stoic philosopher Epictetus: “A man without self-control is like a slave on holiday.”47 The use of the masculine in this phrase is not accidental, as women were seen as predisposed to lack self-control. Self-control requires strength to overcome influences and temptations, and women were perceived as weak. Courage, by which one overcomes fear—one of the main enslaving emotions—is viewed as a masculine quality, typical of warriors on the battlefield, who are obviously all males.48 Slavishness and femininity therefore mark the discourse of self-control and are useful in identifying underlying ethical premises in the analysis of texts from the Greco-Roman cultural milieu.
In order to demonstrate that the discourse of self-control is present in the Tannaitic discussion of the four categories, I will first show how these persons are represented in Greco-Roman sources. Scholars of Jewish law have noted that some of the four categories on the list are frequently discussed in Greek and Roman texts;49 what has gone unnoticed, however, is that they are discussed in a particular ethical context and portrayed as persons who lack self-control. I will support this assertion by examining three lists of dishonorable occupations found in Greek and Roman sources: the first by Aristotle, the second by Cicero, and the third by Plutarch. Aristotle predates the relevant period, but is nevertheless important because of his influence on writers of the first to third centuries. Because of the nature of the sources, it is best to consider the lists by Aristotle and Cicero in tandem, and then look at the list by Plutarch, which most resembles the Tannaitic list. After presenting the Greek and Roman lists, I will return to the Tannaitic sources and discuss the similarity between the Tannaitic and Greco-Roman lists, as well as additional indications of the presence of self-control discourse in Tannaitic regulation of disqualified testimony.
Aristotle and Cicero
In the fourth chapter of the Nicomachean Ethics, Aristotle discusses virtues concerning money.50 In the section of interest here, he criticizes the improper conduct of those who cannot control their desire for money, tilting from moderation to extreme and excess. These people would act disgracefully to satisfy their sordid greed: 51
The other sort of people are those who exceed in respect of getting, taking from every source and all they can; such are those who follow illiberal (ἀνελεύθερος) trades, brothel keepers and all people of that sort, and petty usurers who lend money in small sums at a high rate of interest; all these take from wrong sources, and more than their due. The common characteristic of all these seems to be sordid greed (αἰσχροκέρδεια), since they all endure reproach for gain, and for a small gain… the dicer and the foot-pad or brigand are to be classed as mean (τῶν ἀνελευθέρων εἰσίν), as showing sordid greed (αἰσχροκερδεῖς), for both ply their trade and endure reproach for gain, the robber risking his life for plunder, and the dicer making gain out of his friends, to whom one ought to give; hence both are guilty of sordid greed, trying as they do to get gain from wrong sources. Meanness (ἀνελευθερία) is naturally spoken of as the opposite of liberality (τῇ ἐλευθεριότητι)…
Dice-players and usurers are both portrayed here as people who cannot control their shameful desire for money: αἰσχροκέρδεια. Their lack of moral stamina, being swayed by temptation, is the center of Aristotle's criticism.52 For Aristotle, the terms αἰσχροκέρδεια and ἀνελευθερία are evidently closely linked. αἰσχροκέρδεια means sordid love of gain or base covetousness, whereas ἀνελευθερία is illiberality of mind or servility. “The Greek term ἐλευθεριότης … means literally ‘being in a free condition,’ that is, in the condition characteristic of a free citizen, as opposed to a slave…. ἐλευθεριότης is the virtue by which someone is not, as we would say, ‘bound’ or ‘tied down’ by concerns about his possessions….”53 Like the rabbis, Aristotle associates gamblers and usurers with thieves and robbers; however, clearly for Aristotle the link between these practices is not the illegality of the earnings, but rather the assumption that they are all driven by a contemptible and irresistible desire for gain.
Cicero's list of disgraceful occupations is found in De Officiis (1.150):54
Now as to arts and acquisitive activities—those considered liberal (liberales) as well as sordid (sordidi)—we are generally told these things. First, those acquisitive activities are disapproved of that incur the hatred of other human beings, such as customs officers and usurers. Illiberal (illiberales) and sordid acquisitive activities also include all wage earners who are paid for their labor and not their art; for in their case that wage is recompense for slavery.… All craftsmen are also engaged in a sordid art; for there is nothing liberal (liberales) about a workshop. Least of all ought those arts to be approved of that are handmaidens to pleasure, “fishmongers, butchers, cooks, poulterers, fishermen,” as Terence says. Add to this, if you approve, perfumers, dancers, and everything belonging to gambling… . Mercantilism, if on a small scale, must be thought sordid.
Here Cicero discusses the professions befitting free men. Replacing the Greek philosophical point of view with a Roman moralizing perspective, he alludes to the Aristotelian list in several ways.55 Clearly, Aristotle's emphasis on liberality is a central theme also for Cicero, as indicated by the dichotomous structure highlighted in the text: on the one hand, occupations considered free—liberales, and on the other hand, those considered sordidi—disgraceful and low. Disgracefulness is contrasted with freedom; it is associated first with slavish behavior, and a second time with the pleasures: voluptates, the base temptations of the senses.56
The reference to usurers and gambling (literally: “every game of dice”) similarly echoes Aristotle's list, to which Cicero adds, inter alia, small scale trade. When we turn to Plutarch's list we will see that the small-scale trader is analogous to the Tannaitic “trader of seventh-year produce.” Note that Cicero's list further includes tax collectors; they are also mentioned in a Tannaitic tradition quoted by the Babylonian Talmud as having been added to the Tannaitic list of disqualified witnesses.
Whereas Aristotle's and Cicero's lists partially overlap with the Tannaitic list of disqualified witnesses, the list by Plutarch, found in an essay titled “On How to Study Poetry” (De audiendis poetis),57 presents an almost-perfect parallel to the Tannaitic one. This important parallel was unknown to scholars until it was recently pointed out by Amit Gvaryahu.58 To fully appreciate its meaning, one needs to bear in mind the text's specific literary background, which I will now briefly describe.
As implied by its title, Plutarch's essay seeks to guide youths on how to understand poetry, and in this respect he introduces the principle of metaphor commensurability. According to Plutarch, a poetic text should not be understood at face value, but rather on a metaphoric level, so that any metaphor could potentially be replaced by a suitable equivalent. In the portion of the essay relevant to this article, the author demonstrates this rule using a quotation from a Greek tragedy that dramatizes a mythological story. The tragedy tells how Odysseus, who went to look for Achilles with whom he wanted to join forces in the Trojan War, finds him among the maidens in Scyros. Achilles himself is dressed like a maiden, and is carding wool together with the other maidens, after his mother tried to disguise him and, in this way, prevent his conscription. Odysseus rebukes Achilles for sitting among the maidens and behaving like one of them:59
and so also that when they hear the rebuke which was administered by Odysseus to Achilles as he sat among the maidens in Scyrus,
Dost thou, to dim the glory of thy race, Card wool, son of the noblest man in Greece?
they may imagine it to be addressed also to the profligate (τὸν αἰσχροκερδῆ) and the avaricious and the heedless and the ill-bred, as, for example,
Dost drink, son of the noblest man in Greece,
or gamble, or follow quail-fighting, or petty trading, or the exacting of usury,
without a thought of what is magnanimous or worthy of your noble parentage?
(ἢ κυβεύεις ἢ ὀρτυγοκοπεῖς ἢ καπηλεύεις ἢ τοκογλυϕεῖς,
μέγα ϕρονῶν μηδ᾽ ἄξιον τῆς εὐγενείας;)
According to Plutarch, instead of accusing Achilles of carding wool among the maidens, the author could have used a series of other analogous metaphors without changing the meaning of his reproach. Following the metaphor of excessive drinking, he lists four other metaphors, similarly presented as analogous to behaving like a woman. This list of four negative behaviors includes gambling, usury, quail fighting, and small-scale trade.
Strikingly, this list closely resembles the Tannaitic list of four categories of person who are disqualified from giving testimony. Gambling and usury appear in both lists, and quail fighting is a clear parallel to the pigeon flying that, as mentioned, is already identified in the Tosefta as engaging in bird fights.60 A juxtaposition of the two lists, warranted by their similarity in form and content, indicates that trading seventh-year produce is analogous to small-scale trade.61 Apparently, Plutarch presents us with the origin from which the Tannaitic list was derived.
I maintain that Plutarch views the four categories of person as paradigmatically lacking in self-control. This assertion is not only plausible in light of the cultural associations of gamblers, usurers, and small-scale traders demonstrated above (note that Plutarch groups persons who engage in all four practices under the heading “sordid love of gain”—τὸν αἰσχροκερδῆ, using the same word Aristotle used in his criticism of shameful occupations).62 Rather, it follows from the very point that Plutarch makes in this paragraph, where he upholds that the four practices are as shameful as drinking or behaving like a woman. Excessive drinking, a practice frequently associated in Greco-Roman literature with gluttony and promiscuity, is deeply linked to lack of self-control.63 Even more telling is the comparison with behaving like women.
In the Greco-Roman cultural context, the analogy between men of bad character and women is a clear instance of self-control discourse.64 Recall, for example, Plato's Timaeus, in which he states that men who lack courage are destined to be reborn as women,65 or Cicero's criticism of the femininity of a ruler who cannot control his passions.66 Because women are supposedly incapable of resisting temptations and passions, describing a man as feminine amounts to saying that he lacks self-control. The analogy to women therefore implies that in Plutarch's view the disgraceful aspect of the four categories of person is their shared lack of self-control.67
The Tannaitic List in Context: A Comparison between the Four Categories of Person and Women
The Tannaitic list resembles that of Plutarch not only in its content, but also in the equation of the four categories of person with women. As mentioned, the rabbis, too, associated the four categories with women—as well as with slaves—when discussing the scope of their mutual incompetence to testify. Given its importance, I will quote again the full passage from the Mishnah:68
אלו הן הפסולין. המשחק בקוביא והמלוה בריבית ומפריחי יונים וסוחרי שביעית ועבדים.
זה הכלל. כל העדות שאין האשה כשירה לה אף הן אינן כשירים לה.
The following are ineligible: the dice-player, the usurer, pigeon flyers and traders in Seventh Year produce, and slaves.
This is the rule: any testimony for which a woman is not eligible, these are also not eligible.
Detached from its cultural context, the comparison made here among the four categories of person, slaves, and women may appear merely formal, reflecting a legal technicality that all these potential witnesses happen to be disqualified for matters of similar scope. However, the fact that both Plutarch and the rabbis make the comparison between the four categories and women cannot be dismissed as coincidental.69 The argument that in making this comparison the rabbis were consciously operating within the cultural paradigm of self-control is reinforced by the Tannaitic discussion of the disqualification of women from giving testimony, a legal context directly pointed to by the ruling quoted. Because the use of typical self-control language in that case has so far escaped scholarly attention, it merits presenting here in some detail.70
Most Tannaitic formulations of the rule regarding women's ineligibility to testify are exegetical and technical, refraining from openly discussing the reasoning behind this exclusionary rule. However, one instance of a reflection on this reasoning is found in the Tosefta in tractate Ktubot 3:3. There it is stated that, with the exception of certain special cases,71 women (and minors) are generally not to be trusted as witnesses because they are suspected of testifying “out of temptation or out of fear” (שלא אמרו אלא מתוך הפיתוי ומתוך היראה).72 This statement is often interpreted at face value as saying that women and minors are suspected of lying because they may have been influenced by an interested party.73 However, in what follows, I maintain that, in fact, this language reveals a nuanced usage of the standard terminology of Greco-Roman self-control discourse.
As mentioned, the core of self-control is the ability to resist the influence of emotions and temptations. Classical authors speak of two types of forces that one ought to resist: (1) pleasure or delight (ἡδονή), which induces actions contrary to reason; and (2) pain or sorrow (λύπη), which deters one from doing what is proper. Stoic philosophers expanded the model to include two additional mental properties, adding (3) desire or temptation (έπιθυμία) as well as (4) fear or dread (ϕόβος).74 These additions are actually the logical outcome of the first pair: pleasure attracts, creating temptation, whereas pain deters, creating fear. Desire and fear are complementary in nature, as Philo writes in “On That Every Good Man is Free,” “Nothing is so calculated to enslave the mind as fearing death through desire to live.”75
The attribution of susceptibility to temptation (פיתוי) and fear (יראה) to women is in line with the cultural assumption that women are predisposed to lack self-control.76 Roman jurists also attribute women's inferior legal status—including with regard to giving testimony—to their “weakness” of character, indicating the same basic attitude.77 The coupling of women with minors in the Tosefta similarly suggests that an ethics of self-control is behind this ruling; Hellenistic thought links these two categories of people as lacking self-control, although for different reasons.78
Finally, this reading is reinforced by Josephus's description of the Jewish rule disqualifying women and others from giving testimony (Antiquities of the Jews [AJ] 4.8.15): “Let the testimony of women not be accepted because of the levity (κουϕότητα) and boldness (θράσος) of their gender. Nor let slaves give testimony because if their ignobility of soul (τῆς ψυχῆς ἀγένειαν), since it is likely that they do not bear witness to the truth, whether because of gain (διὰ κέρδος) or because of fear (διὰ ϕόβον).”79
Here, Josephus repeats the convention according to which women and slaves are both defective in self-control. He attributes the disqualification of women to their levity or lightheartedness (κουϕότης), which prevents them from making sound and solid judgments,80 and to their boldness (Θράσος) or excessive daring, which leads to passionate actions with no rational restraints.81 Similar to the Mishnah, Josephus associates the disqualification of women with that of slaves, while stressing slaves' ignobility, τῆς ψυχῆς ἀγένειαν (echoing Plutarch's emphasis on a person's noble parentage: μέγα ϕρονῶν μηδ᾽ ἄξιον τῆς εὐγενείας). Most importantly, when referring to slaves, Josephus employs the language of κέρδος and ϕόβος, which are synonymous with temptation and fear, or with rabbinic פיתוי and יראה.
Read against the backdrop of Josephus, it is clear that in the Tosefta, the rabbis intelligibly explained women's disqualification for testimony in terms of a lack of self-control. It therefore appears that self-control ethics comprehensibly informed the design of the Tannaitic rules concerning disqualified witnesses, including the list of the four categories, as well as the comparison of their incapacity to testify with that of slaves and women.
Part III: From Morality to Legality
I have attempted to show that in designing their rules regarding disqualified witnesses, the rabbis were engaging with the ethics of self-control. But what was the reason for applying foreign moral values to such a central legal institution? I contend that the explanation goes beyond mere cultural permeation of ethical discourse to a case of legal translation,82 whereby a specific Roman legal mechanism was transformed and transmuted into a new Jewish form. I am referring to the Roman legal mechanism of infamia.
There are obvious differences between Roman infamia and the Tannaitic disqualification from giving testimony. Nevertheless, I propose that important similarities exist between the two legal paradigms. As mentioned in the opening of this article, I will point to affinities along three dimensions: (1) a shared underlying ethics of self-control, (2) structural similarities, and (3) a textual parallel. For the sake of clarity, the presentation of these affinities will be contextualized by a more general overview of infamia.
Roman infamia: Overview
Infamia was an established Roman legal mechanism, contemporary with the rabbis, by which a moral judgment incurred legal consequences.83 The people who were declared infames consequently suffered various political and legal disabilities: they were excluded from central and local office holding, from voting, and from acting as an iudex.84 In addition to its effect on participation in the public domain, infamia also had serious ramifications in the realm of private law,85 especially concerning participation in legal procedures. Those labeled infames were barred from speaking on behalf of others in a court of law and from bringing accusations against others.86 Most importantly for the purposes of this article, they lost their eligibility to serve as witnesses in a court of law,87 and were declared intestabiles: unable to serve as witnesses to wills and other solemn acts of private law.88
Notably, the designation infamia was often ascribed to certain occupations or ways of earning a living, rather than to occasional negative behavior. These occupations included acting or performing on stage, serving as a gladiator or training gladiators, as well as participating in the sex business as prostitutes, brothel keepers, or procurers.89 Only when these activities were practiced for money, as a way of earning a living, would infamia be imposed.90 Usury was also included as one of the infamous ways of making a living, and was associated with infamia at least since the beginning of the second century CE.91 Scholars believe that small financial businesses were also, at times, subject to infamia.92 Other types of infamous characters included dishonorably discharged soldiers,93 people convicted of certain civil and criminal offenses, including theft (furtum),94 and many more.95
As noted, the defining feature of infamia was its grounding in a moral judgement. Although several attempts have been made to explain the common moral defect on which infamia depended, in view of the multitude of infamous activities, it can be argued that there is no single moral deficiency shared by all.96 However, there is a consensus among scholars that we can discern certain groupings of infamous activities, and that it makes sense to look for a common rationale behind them.
There is a striking connection between several types of infamia and the ethics of self-control,97 particularly regarding what scholars refer to as the core infamous occupations: stage actors, dancers, gladiators, prostitutes, and pimps.98 Catharine Edwards has convincingly shown that these occupations were closely connected with pleasure, and that their inherent disgrace and dishonor resulted from their association with femininity, slavishness, and succumbing to temptation.99 Roman writers described gladiators as those “whose appetite for love outdoes all others” and stressed their seductiveness to both men and women.100 The term voluptas is often used to describe the experience of watching the games as well as of the more common pleasures of the flesh.101 Many sources express the disturbing sexual ambiguity of male actors.102 Actors and actresses were regularly assumed to be prostitutes,103 but as Edwards explains, this was not because they “sold their sexual services. Rather, the way in which they made their living was perceived to be analogous to the way in which prostitutes made their living… The very sight of these performers was thought to produce sexual pleasure.”104 The unmanliness of acting is stressed by Livy, who claimed that the theater was alien to those who were by nature warriors.105 Capital punishment was prescribed for soldiers who appeared on stage,106 because the ideal of the fighting soldier—a model of self-restraint—was diametrically opposed to the art of the stage. Notably, infamy was also ascribed to soldiers who showed cowardice and deserted from battle, where they were expected to demonstrate virile, self-mastering courage.107 Similarly, literary sources describe certain types of stage warriors as feminine.108 In juridical writings, we find stage characters, gladiators, and beast fighters associated with shameful feminine behavior.109
In addition to being described as feminine, the infamous—even if free citizens—were stigmatized as slaves.110 For example, torture is mentioned as a precondition for accepting the testimony of an arena fighter, as in the case of slaves.111 Put more generally, such individuals were deprived of the general protection from corporal punishment granted to all Roman citizens, and, like slaves, were vulnerable to being treated in this insulting way.112 Servility and femininity were therefore the common metaphors for the immorality of behaviors labeled as infamous.
Another feature of Roman infamia, which, as noted, is also relevant for appreciating the overarching framework of self-control ethics, is that it deprived Roman citizens of rights that were equally denied to women.113 Women, too, were barred from standing for election as magistrates, from voting in public assemblies, and from serving on a jury. In the context of the courtroom, women, too, were not permitted to speak on behalf of others or to bring capital accusations against others. Women are listed along with men in infamous occupations as persons who cannot serve as witnesses to a will or perform any other solemn act of private law.114 Classical jurists assume that women were accepted as witnesses in the law courts, and on this point their legal status differed from that of infames. It should, however, be noted that this was the case only after a doctrinal change in Roman evidence law; in earlier periods, women were also barred from testifying in court.115 As mentioned above, Roman jurists often explained women's inferior legal status in terms of their deficient self-control.116
To recap my argument so far, Roman infamia and Tannaitic rules regarding disqualified witnesses seem to share both structure and spirit. Both institutions attribute legal outcomes to a moral judgment; both designate disqualification from giving testimony as one such legal outcome; both attribute this downgraded legal status to the practice of certain occupations or ways of earning a living; and finally, both compare the legal status of the infamous to that of women (although, interestingly, the analogy is not complete with respect to Roman rules concerning women's testimony). These structural affinities should be viewed against the backdrop of the shared ethical perspective through which infamous occupations were perceived, the perspective of the virtue of self-control. To this picture I will now add a last trait common to both legal mechanisms: the possibility of rehabilitation. This common trait not only supplements the structural similarity, but also adds a textual parallel between the Tannaitic and the Roman legal mechanisms, suggesting that some rabbis were actually familiar with Roman regulation of infamia.
Roman sources indicate that there was a way to overturn the status of infamia and repeal its legal ramifications.117 According to Ulpian, a remission of this legal disability could be granted by the praetor (D. 188.8.131.52–10):
This edict refers also to all the others who are blacklisted as incurring infamia in the praetor's edict. All these are not to make applications except on their own behalf or that of certain people only. Then the praetor adds: “Who out of all those mentioned above has not received in integrum restitutio.” … If he is one of those previously referred to, in integrum restitutio will be obtained only with difficulty… . The opinion of Pomponius, that anyone condemned in a trial involving infamia and then absolved through in integrum restitutio is freed from infamia, is in accordance with this view.
The status of infamia was therefore at times reversible, through a grant of “in integrum resitutio.” This was a legal remedy, applicable in a variety of legal contexts, which allowed the recovery of a former legal status by undoing a legal action or transaction.118 It was generally used to reverse contracts or sales, but it was also used to recover the loss of legal status by people who suffered from infamia following conviction in an iudicium publicum.119 The phrase “in integrum restitutio” means “full restitution,” but its literal translation would be “complete return.”
As mentioned, rabbinic sources also introduce a process of rehabilitation that was available to disqualified witnesses. According to the Tosefta in tractate Sanhedrin 5:2, after forsaking their infamous occupations and satisfactorily proving that they had changed their ways, those practicing the four activities could regain their previous status and once again become legitimate witnesses. Moreover, the Jewish and Roman sources share not only the legal possibility, but the legal terminology as well. Strikingly, the Tosefta describes the restoration of status to the four characters by using the phrase “complete return”:
המשחק בקובייא…לעולם אין יכול לחזור בו עד שיקבל שישבור את פסיפסיו ויחזור בו חזרה גמורה.
המלוה בריבית אינו יכול לחזור בו עד שיקרע שטרותיו ויחזור בו חזרה גמורה.
מפריחי יונים… לעולם אינו יכול לחזור בו עד שישבור את פגימיו ויחזור בו חזרה גמורה.
סוחרי שביעית… . לעולם אין יכול לחזור בו עד שתגיע שמיטה אחרת ויבדק ויחזור בו חזרה גמורה.120
The dice-player… he can never return until he breaks his psipasin and returns a complete return.
The usurer can never return until he tears apart his bills and returns a complete return.
Pigeon flyers… he can never return until he breaks his pigmin and returns a complete return.
Traders of seventh-year produce… he can never return until another seventh year comes and he is examined, and returns a complete return.
The idiom חזרה גמורה is very rare in rabbinic literature, and in the context of the rehabilitation of persons practicing the four activities was interpreted as repentance and a change of ways.121 However, this phrase does appear once more in Tannaitic texts, in Tosefta tractate Yevamot 13:5, and its use there can shed light on its true meaning. In tractate Yevamot, the phrase is used in the context of the legal ramifications of the divorce of a woman who is a minor, specifically addressing the possible reinstitution of her marital status in case she remarries (her divorced husband) while still a minor.122 The Tosefta rules that the reinstitution of the woman's marital status is not complete. This ruling uses the technical term “complete return,” saying that “her [the woman's] return is not a complete return” (אין חזרתה חזרה גמורה). Clearly, the use of the phrase here has nothing to do with repentance. Rather, it is used as a technical legal term signifying the full recovery of a former legal status, very close to the use of restitutio in integrum in Roman law.123
If the rabbis were familiar with the Roman legal meaning of the phrase חזרה גמורה when discussing the marriage of a minor, there is no reason to doubt their acquaintance with it and its proper use in the case of the four categories of person. This example not only evidences structural and theoretical links between the Tannaitic disqualification for testimony and Roman infamia, but also provides a textual indication that some rabbis knew the mechanism of infamia and used it when formulating the Tannaitic rules regarding the disqualification of the four categories of person.
Admittedly, there are evident disparities between Tannaitic laws regarding disqualified witnesses and Roman infamia. The latter is a much more developed and overarching legal mechanism than the rabbinic treatment of the four categories of person. Furthermore, despite some overlap, different occupations cause a reduction of status in each case, and whereas the disqualification for serving as a witness and as a judge is shared by both legal regimes, Roman law imposes further sanctions on those labeled with infamia that are not paralleled in rabbinic law. Nevertheless, the affinities between the two institutions are strong and telling. They suggest that the Tannaitic legal apparatus of disqualifying individuals for testimony based on their defective morality developed by way of a rabbinic interpretation of Roman infamia.
In this article, I have maintained that the Tannaitic list of four categories of person should be understood in the cultural context of other lists of infamous occupations from the Greco-Roman world. Such lists are found in philosophical and literary texts as well as in legal ones, and in all instances are linked to lack of self-control. The Tannaitic list of four categories clearly parallels the list mentioned by Plutarch in a literary context. At the same time, the Tannaitic rules regarding the disqualification of these persons echo the Roman legal apparatus regulating lists of infamous occupations, as part of the mechanism of infamia.
Although scholars of Roman law have demonstrated that the ethics of self-control is a common factor underlying the list of occupations causing infamia, they have nevertheless been hesitant to state that this moral vice was a guiding rationale for the legal institution as a whole. Given the complexity of Roman sources on this issue, that hesitation is justified.124 However, the perspective provided by Tannaitic sources changes the picture. The partial nature of the Tannaitic rules regarding the four categories crystallizes the identification of the elements that the rabbis borrowed from their surrounding legal and cultural context when designing their rules of disqualified testimony. My analysis reveals that, in the eyes of the rabbis, self-control ethics played a central role in the Roman institution of legal infamia.
The strong link between a lack of self-control and infamia makes perfect sense in a Roman context, because many of the legal disabilities resulting from infamia are felt in the political domain. First and foremost, infamia inhibits a citizen's right to be active in the political sphere: to vote, to be elected for public office, and to serve as a juror. This is clearly explained by the fact that in Roman political thought, self-control was perceived a central political virtue, necessary for exercising political power; it was deemed inappropriate for a man who lacked self-control to have control over others.125 In light of this typical Greco-Roman view, the relevance of self-control to the political aspects of infamia is evident, and seems to be of primary importance for understanding this form of legal sanction.
However, given that the disqualification from giving testimony is one of the most ancient legal disabilities entailed by infamia, an awareness of its underlining ethics of self-control serves as an important correction to the probative paradigm through which laws regarding testimony are often studied. Roman legal historians have noted that in the archaic period, testimony in court was a public role, which exceed a narrow probative function of reporting the facts.126 Scholars who deal with Roman law in the classical and later periods tend to differentiate between the role of witnesses in courts of law, which at this period is assumed to be essentially probative, and the role of witnesses in mancipatory acts, especially wills, which is perceived as authoritative and ceremonial.127 Although this scholarship stresses the immense importance that demonstrations of self-control had for establishing the soundness of the witnesses' testimony in legal proceedings, this has been understood almost exclusively on probative grounds: presumably, a person lacking self-control was seen to be more inclined to lie.128 However, it is possible that self-control was important not only for evaluating the accuracy of witnesses' testimony, but also as a means for establishing their authority. Even if this authoritative capacity most clearly emerges in the context of ceremonial testimony, it might have been crucial for courtroom testimony as well.129 The political nature of the mechanism of infamia, which linked disqualification from giving testimony with disqualification from holding public offices, may be seen as pointing in this direction, although additional research is required before one can reach decisive conclusions in this regard.
The authoritative role of the witnesses may well explain why the political aspects self-control ethics were deemed relevant by Roman lawmakers in shaping their laws of disqualified testimony. Consequently, by drawing on this aspect of Roman law, the rabbis were doing much more than excluding liars. They were incorporating characteristic features of Roman political thought into Jewish law.