Introduction

This chapter provides an overview of the form, content, and method of state administration of legal instruments from the Ptolemaic to the Byzantine period and beyond. While the basic types of transactions remained fairly consistent (sales, loans, marriage arrangements, and leases), the documents show a wide variety of forms and considerable development, and, in some cases, mutual influence. From the modern perspective there was considerable overlap between types of contracts and their uses. The misthôsis contract, for example, the standard contract of lease, was also used in labor contracts (e.g., 8.2.10) and could be combined with loans. Demotic sales could be used to secure loans and to guarantee the maintenance of a woman in marriage (2.2).

In both Demotic and Greek texts, sale (Chapter 6), the signature contract in many legal systems, was one of the most common types of contracts. In Greek, in sale and other contractual types, the so-called objective homology, i.e., a declaration in the third person: “NN (i.e., the seller) acknowledges that he has sold to NN (i.e., the buyer) . . .,” was at first the prevalent form; but gradually the subjective homology, written in the first person, prevailed: “X to Y, greetings. I acknowledge that I have sold to you . . .”. Demotic contracts also prefer the latter: “I acknowledge that I have received from you the satisfactory price for my house . . .”. Despite the seeming informality of the subjective form, the contracting parties were always carefully identified at all periods according to the style of their times (as discussed in Chapter 1 and elsewhere and as evidenced in many of the selected documents), while the documents themselves tend to be full of back-referring words like “above-written,” “aforementioned,” and variants so familiar from modern contractual boilerplate.

Preface

The idea for this book dates back a decade or so as one of the editors (JGM) came to believe that legal papyrology was being relegated to an ever-diminishing corner of ancient history. Papyrology itself, the decipherment and interpretation of documents written (mostly) on the ancient paper called papyrus, recovered (predominantly) from Egypt, is a highly technical, and therefore somewhat naturally isolated, discipline. The use, or neglect, of papyrological publications by ancient historians not trained as papyrologists remains a matter of constant concern. In addition, even if (from our perspective) the lesser languages of the wider discipline (e.g., Aramaic, Pahlevi) and the earlier forms of Egyptian are set aside, the field has traditionally suffered a linguistic split between Greek (and Latin) documents on the one side, and Egyptian documents (Demotic, Coptic) on the other. The former tend to be the concern of those classicists who have chosen to “major” in papyrology, the latter the concern of Egyptologists. Still more, the legal scholarship on the corpora of published documents in both language sets is predominately written in German. The present volume, accordingly, aims to introduce readers to this major source of ancient legal documents, to heal the linguistic divide by including documents in both major language traditions, and to distill the literature of juristic scholarship based on these texts for the benefit of the reader in English. We present in this volume some texts that are well known to papyrologists, others that have hardly been studied. The selection is limited to documents from Egypt.

The primary reason to study ancient Jewish history and texts is interest in ancient Jewish history and texts. There is enough material, and it is distinctive and rich enough to sustain plenty of attention. Complicating and enriching such interest for many people is the fact that the history and the texts continue to make claims and demands: they are, even today, not completely ‘other’. Indeed, defamiliarizing the material, restoring it to antiquity, and, thereby, subjecting contemporary proprietary claims over it to intense and precise analytic scrutiny, retain a measure of ethical and political urgency.

But there are other reasons to study ancient Jewish history, too, and one of the implicit themes of this book has been that ancient historians in particular can ill-afford to ignore it (cf. Goodman and Alexander 2010). Jewish and Christian literary traditions preserved much material relevant to ancient historians’ concerns: parts of the Hebrew Bible and much of the so-called Apocrypha and Pseudepigrapha are primary evidence for Hellenistic culture; Philo and Josephus – not to mention the New Testament – are important samples of Early Imperial Greek writing, however far they may deviate from the literary standards of the classical canon; Palestinian rabbinic literature in all its occasional hermeticism is the largest corpus of writing produced by the inhabitants of a single High and Later Imperial Roman province except for Italy (perhaps Asia produced more, but all of it, pagan and Christian, participates in trans-local cultural patterns). That so few ancient historians have embraced this material testifies to the continuing, albeit sometimes vestigial, conception of the field of ancient history as ancillary to classics.

The administration of Ventidius Cumanus as governor of Judaea (48–52 ce) was, according to the historian Josephus, an ominous one for the Jews, featuring several cases of provocative military misbehaviour and the governor’s anti-Jewish intervention in a civil mini-war between Jews and Samaritans, which ended badly for everyone, including the governor. On one occasion, though, Cumanus’ decisive action forestalled what would otherwise have quickly degenerated into mass rebellion. Some Roman troops, on patrol in the western Judaean hills in the wake of an attack on an imperial slave, found in one village a scroll of the Law of Moses, and one of the soldiers cut it to pieces and burned the scraps. News quickly spread, and the Judaeans, ‘aroused as though it were their whole country which had been consumed in flames’, marched en masse to the governor’s palace in Caesarea Maritima, where Cumanus found the responsible soldier and had him executed. ‘On this, the Jews withdrew’ (Jewish War 2.228–31).

Is this episode self-explanatory, or deeply bizarre (Schürer-Vermes i:456–7; S. Schwartz 2001:60–1)? We live in a world where group symbols are destroyed in acts of provocation which everyone seems to understand. Flag-burnings are routine and routinely cause outrage. The public burning of a copy of the Quran by an extremist Protestant pastor in Florida sparked violent protests in Afghanistan, but, perhaps more relevant to the pastor’s stated intentions, offended enlightened opinion at home. Public outrage at the provocative treatment of central Christian symbols is also familiar. Nearly twenty-five years after its creation, according to a story widely circulated on the Internet, Andres Serrano’s notorious Piss Christ (a photograph of a plastic crucifix suspended in what was allegedly the artist’s urine) was attacked and destroyed by pious Catholics in Avignon in April 2011. The fact that this story appears to have been at the very least greatly exaggerated suggests that whatever happened functioned primarily as a convenient peg on which to hang a larger debate on the embattled secularism of the French Republic. Personally offended and wary of controversy, authorities in the late 1990s routinely banned display of Chris Ofili’s Holy Virgin Mary, a painting composed partly of elephant dung; it was subsequently purchased by a collector and now hangs peacefully in Tasmania.

BIRDS

Tacitus noted that ‘the Jews’ patience endured until the procuratorship of Gessius Florus’ (Hist. 5.10). The chain of events which sparked the revolt certainly confirms the historian’s view, which our main source, Josephus, shared, that Florus was a scoundrel (Ant. 20.252–6/Jewish War 2.277–9), but the initial episode in Josephus’ narrative chain has always defied interpretation (Jewish War 2.285–92): a ‘Greek’ of Caesarea Maritima owned a plot of land next to the synagogue and as an act of provocation built workshops on the land in a way which partly blocked access to the synagogue. The Jews offered Florus (whose palace was in the city) a bribe of eight silver talents, presumably to permit demolition of the workshops, but Florus took the money and decamped to Sebaste, leaving Caesarea in a state of high tension. One Sabbath the Jews arrived at the synagogue to find a Greek youth sacrificing birds on an upturned pot in the disputed passageway, an intolerable provocation. Violence erupted despite the intervention of the commander of the local equestrian ala, in the course of which the Jews seized ‘their laws’ and fled to the nearby Jewish town of Narbata. The leading Jewish citizen of Caesarea, John the Publican (telōnēs, perhaps a port official), marched off to Sebaste to remind Florus of the Jews’ generosity, but, instead of expressing gratitude, Florus put John and his entourage in chains on the charge of having removed ‘the laws’ from the city. News of this episode brought Jerusalem to the brink, and an ill-timed visit by the procurator himself to seize seventeen talents from the temple treasury nudged the city into open revolt (Jewish War 2.293–6).

INTRODUCTION

This chapter focuses on the rabbis. The rabbis (rabbi in Hebrew/Aramaic is an honorific title meaning ‘my master’; the term was already used as a substantive noun in antiquity, but rabbinic literature usually calls its protagonists sages – hakhamim – or elders – zeqenim) were a group centred in northern Palestine, the remaining centre of Jewish population after the devastation of Judaea in 135. The origins and role of the rabbis are obscure and controversial despite the survival of a large quantity of rabbinic literature. The rabbis were unusual or even unique as a provincial group, since they were elite or sub-elite preservers, rationalizers and elaborators of a recalcitrantly unromanized but very much altered local tradition transmitted in its original Semitic languages. As such they have much to teach about the possibilities and limits of cultural resistance in the Roman Empire. The following pages are dedicated to the tasks of explaining the controversy about them, piecing together what we can know about their origins, coalescence as a group, and role. In my view, little can be known, but that little points mainly to the rabbis’ limitations as authorities and cultural role models. What we know about Jews in Palestine outside rabbinic circles points to their imbrication, at long last, in the political, social and cultural environment of the eastern Empire. Things began to change by the later third century; most of the evidence for this change concerns the rise of a dynasty designated in rabbinic sources nesi’im (singular, nasi; ‘prince’, see above on Bar Kokhba’s use of the title) and in Roman law-codes, patriarchs. Like the rabbis, the patriarchs are largely without close parallel in the Roman Empire but there is no doubt that in the fourth century they were transformed from a venerable rabbinic family into important imperial officials of senatorial rank; this tells us something about larger changes in the eastern Empire on the eve of christianization.

HISTORY BEFORE THE JEWS: ISRAELITES AND GREEKS IN THE IRON AGE MEDITERRANEAN

The tendency to regard the Jews as a uniquely odd presence in the Mediterranean basin in antiquity provides an excellent reason to begin our account with a brief discussion of the ways in which the prehistory and early history of the Jews were absolutely typical for the physical and political geography of the central and eastern Mediterranean coast. There is, in fact, an unexpectedly large number of points of similarity between pre-Hellenistic Greek and Israelite/Jewish history: stories of invasion, migration and colonization set at the transition between the Bronze and Iron Ages (c. thirteenth century bce), a long and obscure archaic period in which subsequently central ideas and institutions took shape, periods of crisis in the sixth century and the powerful ideologies of highly particularistic but internally egalitarian citizen communities that emerged in the aftermath, and finally subjection to a single, though fissiparous, Greco-Macedonian empire (exploration of some parallels in J. P. Brown 1995–2001).

These parallels may or may not be the result of the diffusion of ideas and stories through contact; they are certainly the result of shared geographical proximity to regional and transregional political processes; to some extent they are also the result of a similar ecology. To be sure, it was highly consequential that Greeks gravitated to the coasts and Israelites to the hills. The modern idea that until sometime in the Hellenistic period the ancient Jews were somewhat isolated is not just due to reading later theological concerns back into antiquity. Ancient Jewish texts themselves mention it occasionally and ascribe it to the fact that Israelites/Jews did not live on the seacoast, which was the land of the Canaanites (= Phoenicians) and the Philistines, and later on the latter’s cousins, the Greeks (Numbers 23.9; Josephus, Ag.Ap. 1.60). The hill country felt isolated, but the point should not be exaggerated. The line of ridges which constituted the heart of the biblical kingdoms of Israel and Judah was nowhere more than about 45 miles from the coast, an easy enough three-day walk even uphill, and the hills themselves, though challenging for large armies to penetrate and control, were in most places not very forbidding.

Introduction

Leasing, in particular the leasing of land, is one of the best-attested private legal transactions in the papyrological evidence, abundantly attested across the boundaries of regions, periods, and languages of Egypt. While a large proportion of merely oral lease arrangements must always be taken into account (Mrsich 1994, Eyre 2004), there seems to have been a steady movement from oral to written agreements from the earliest attested lease-like documents of Egypt, cursive Hieratic and early Demotic texts of the seventh and sixth centuries bc, up to the Byzantine period, when the proportion of leases among the total of papyrus documents grew higher than ever before (Jördens 1999).

To date, about fifteen hundred Greek leases from the early third century bc to ad 708, the year of the latest datable Greek lease document, P.Apoll. 57, have been published. Among them are 450 documents from the Byzantine period. During the first century after the Arab conquest, the number of Greek lease documents dropped sharply; but in Coptic, which was gaining importance as a language of legal documents at that time, some sixty leases and about forty rent receipts are attested. These bear evidence of a certain continuity in agricultural work and its administration, at least on the local level. Land leases written in Arabic start with a document dated to ad 776. The sixty-two extant Arabic leases and 132 land-tax receipts from the later eighth to the mid-eleventh century, only recently studied in detail, differ greatly in form, content, and style from Byzantine leases. They bear witness to considerable alterations of crucial economic and legal concepts and to the transformation of a mainly private economy, an agricultural “capitalism” avant la lettre, to a rather state-dominated system of agricultural administration.

A GREEK JERUSALEM?

The ‘hellenization’ of the cities of central and eastern Asia Minor and the Syro-Palestinian coast is an obscure process which had fatefully important consequences (G. Cohen 1995; 2006). In the course of the third century bce most cities in these regions were transformed from non-Greek to Greek cities. Most of them cultivated cultural and political traces of their pre-Greek past, now marginalized into what we may call ‘local colour’, adding some special character to cities which otherwise aspired to be as similar as possible culturally and institutionally (Millar 1983; Sherwin-White and Kuhrt 1993). This development eventually changed the texture of life in the eastern Mediterranean and must be regarded as the most consequential process initiated by the Hellenistic kings. Yet we know very little about how and why this happened, and surprisingly little, too, about the short-term implications of the change: in what way, precisely, were these cities ‘Greek’ after the moment of transformation? Still, several points seem nearly certain: in most cases, these cities are to be distinguished from colonies, that is, Greek cities which grew from the practice of the kings of settling their (Greek) veterans or active troops in nucleated settlements, sometimes in or near pre-existing towns or villages, and granting them land and ‘bodies’ (somata; enserfed non-Greek natives). It seems unlikely that cities such as Sardis, Tarsos, Arados, Tyre, Sidon, Askalon and Gaza were ever colonized, though some or all could have received voluntary settlement by Greek immigrants. This implies that the initiative for the transformation came from the locals, presumably the leading classes of the towns, which in turn suggests that these hellenized cities may be understood as especially concentrated examples of the cultural and political pressures I described above.

HEROD

Herod is perhaps the only figure in ancient Jewish history who has been loathed equally by Jewish and Christian posterity, because both Talmudic rabbis (100–600 ce) and evangelists and church fathers remembered him as bloodthirsty and tyrannical; the rabbis, for good measure, also recalled an episode of necrophilia. It does indeed seem not unlikely that Herod was on the whole an unlovable person, and even his court historian Nicolaus of Damascus could not conceal his degeneration into paranoid cruelty in old age. Herod is the best attested of all ancient Jews, of all Roman client kings, probably one of the best attested of all Romans, Josephus having devoted over four books of his oeuvre to the king’s life and career (Jewish War 1; Ant. 14–17), though some of the information is contradictory and probably much of the rest is unreliable. Still, we can say much more about him than bland expressions of unnuanced moral judgement.

We should begin precisely by putting some of that moral judgement back in its historical place. Herod was ruthless and cruel, but he was the heir of such figures as Aristobulus I, who murdered nearly his entire family, and Alexander Jannaeus, the aforementioned king who drank cocktails on his balcony together with his concubines as thousands of his subjects were executed below; and he was the contemporary and client of such figures as Pompey, Julius Caesar, Mark Antony and Gaius Octavius (Octavian Caesar/Augustus) whose tendency to mass murder dwarfed anything to be found in the east. What all these men, including Herod, shared was a lack of legitimacy – all lived in a turbulent era of political realignment in the Mediterranean basin, in conditions which favoured the extremely violent. In the best cases such people might learn to overcome their tendencies, but a widely publicized potential to wreak havoc was certainly a powerful political asset even for the greatest state-builder of the time, Augustus.

Introduction

This chapter presents an overview of the relationship between state institutions and the administration of justice. It is a complex topic that changed greatly over the period covered by this volume. There is, thus, considerable development both in terms of bureaucratic practice and also in terms of legal theory. In the case of legal procedure regarding trial proceedings, the Roman evidence is perhaps the fullest. For the Ptolemaic period the process is reasonably clear from the few court records we possess but we have to guess at some of the details.

In ancient Egypt the king was the center of all state institutions, and the guarantor of Maat, that crucial concept of the Egyptian state and of Egyptian law. The term has aptly been translated by Assmann (2002) as “connective justice.” This sense of justice stressed balance or political order, and indeed the concept runs through both state institutions and private morality, binding the king to officials and to all people in Egypt. The concept of Maat and the king as the guarantor of justice prevailed, at least through the second century bc, when the ruling dynasty claimed legitimacy through Egyptian kingship and institutions such as the laokritai.