A Common Justice. Uriel I. Simonsohn
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century, Leslie MacCoull suggests that such documents, written in vernacular language (Coptic), were made for their future use in other tribunals.105
There is also evidence for institutional collaborations, an example of which is found in the records of the monastery of Epiphanius near the Egyptian city Thebes, dating to the sixth and early seventh centuries. Written on a fragment of pottery (an ostracon), it is a correspondence between Strategius, lashane of Ne, to Cyriacus, presumably the abbot of the monastery of Jeme. The lashane informs the abbot that he was not able to settle a certain matter because of the absence of the latter, and he assures him that he will detain certain individuals until the abbot arrives.106 It may be that the matter to which Strategius referred was a case in which he had no standing and thus required the abbot’s presence. Be that as it may, it suggests some level of coordination between judicial authorities—namely, those of the lashane and the abbot. Another document, recorded on a sixth-century papyrus, presents a letter signed by Shenoute, lashane of Jeme, and a list of other names, probably local elders, to Apa Epiphanius.107 Here the secular authority asks the spiritual one to intervene on behalf of members of the local community who are in confinement by appealing to the lashane of the town where they are held.
Finally, presumably there was also some form of collaboration between a monastic authority and a lay one in a sixth-century case mentioned in the collection of questions and answers from Tawatha. In one of its letters, a judicial authority asked the Tawatha monks: “If the fathers ask me to offer judgment on a particular matter, but I do not feel very confident in myself, then what should I do? Should I avoid or accept?” The monks replied: “For the sake of the command of the fathers, accept and tell those receiving judgment: I shall judge only according to what I think is right.”108 The passage suggests a lay leader of some judicial capacity who was asked by an ecclesiastical or a monastic figure to serve as judge in a certain affair.
Jewish Judicial Institutions
A sixth- or seventh-century document from Egypt mentions a “Jew who asked a respectable figure to intervene in a dispute which had arisen between him and his younger brother about the division of their father’s property.”109 Like others, Jews had a judicial choice. By the fourth century, however, Jews formed a minority in what was formally a Christian empire. This was bound to have an impact on the choice of judicial institutions on the part of some Jews, as well as on the type of judicial institutions available to them. Jews, as members of a separate religion, traced their history in a past that long preceded that of the Christians. Yet by the time of the late Roman Empire, they lacked any form of political sovereignty. While the rabbis had addressed the problem of judicial boundaries long before Constantine, their insistence on judicial exclusivity was now charged with new energies. By now, the ancient Gentile (goy) judge may have been a member of a new monotheistic religion.
Modern scholarship is divided as to the extent to which Jewish social life was secluded from that of its neighbors under Roman rule.110 A relatively old school of modern scholarship tends to view Jewish life as having been autonomous vis-à-vis its surroundings and internally consolidated in terms of its communal institutions. Tessa Rajak has judiciously argued that such a perception of pre-Islamic Jewish life was defined through a Jewish modern experience: “Modern experience readily leads us to believe that the life-arrangements required by completely orthodox Judaism, as we today know it, presuppose an intensely communal existence and scarcely leave room for more than superficial mixing.”111
More recently, however, late antique Jewish history has been presented along a line of ongoing transition, in which the rabbis were only at the margins of Jewish society. This process is thought to trace its origins to the period after the destruction of the Second Temple, in 70 A.D. and accelerating in the period from the formal Christianization of the Roman Empire in the fourth century into the period following the Islamic conquest. According to this revisionist approach, the Jews of late antiquity were guided and led by a variety of men and were loosely bound ideologically.112 Nevertheless, the character and appeal of the judicial institutions that were available to Jews under late Roman rule were determined by a variety of factors, among which are the minority status of Jews, the agendas of Jewish elites, and the daily contact that Jews had with non-Jews.
By the late 390s, Roman law had outlined the boundaries of Jewish judicial jurisdiction in a way that strikingly resembled that of the church. In general, Roman law stated that a Jew, like any other Roman citizen, should bring his lawsuits before magistrates of the empire. Still, Jews were permitted to bring their lawsuits before Jewish courts. These were legally acknowledged as arbitrating bodies and, as such, required the consent of both litigating parties in order to pass judgment. The decisions issued in Jewish courts were to be enforced through the authority of the provincial governors.113
Roman law distinguishes between two types of law: a purely religious kind and a civil kind.114 Whereas from the outset, the former was under the jurisdiction of Jewish courts, the latter could be brought before either a Roman or a Jewish court.115 Such a distinction was unfamiliar to Jewish jurists, as Jewish law governs all aspects of Jewish life.116 By 529, however, as stated in the Justinianic Code, religious as well as civil matters of Jews had to be brought before imperial magistrates as a general rule. Legal matters could be brought before a Jewish court only if both litigating parties chose to do so. The change introduced in sixth-century Roman legislation is the extension of Roman law over matters pertaining to Jewish religious law.117 Chapter 4 below surveys the principles of the Jewish judiciary as they stem from rabbinic literature. Our present task will be only to identify some of the “Jewish” judicial possibilities that were open before Jews in the Eastern Roman Empire, most notably in Palestine.
The patriarch (nasi) has been seen in modern scholarship as the supreme Jewish authority within the Roman Empire.118 Thus his office, extended through a network of emissaries throughout the Jewish diaspora, constituted the highest judicial authority until the abolishment of the patriarchate in 429.119 This historiographic position, however, has met a counter opinion, according to which the patriarch enjoyed a lesser degree of judicial authority.120 Correspondingly, the testimony of early rabbinic sources, highlighting the patriarchate as the focus of Jewish leadership, is understood as one that is meant to serve a specific agenda, one that developed in the context of ongoing competition between the patriarchate and rival rabbinic circles.121 Without attempting to resolve these two poles of historiographic perceptions, it should be noted that, at least from an imperial perspective, the patriarch, up to the time of his deposal in 429, possessed a central position.122
The image that emerges from early rabbinic literature is of a firmly established body of Jewish scholars operating amid late antique Jewish society.123 The rabbis have thus been seen either as part of the patriarch’s judicial administration, serving as legal experts, or outside of it, contending with the patriarch’s authority.124 Accordingly, those rabbis who submitted to the patriarch’s authority were appointed on his behalf as local communal judges.125 Yet this image should be qualified, if only because of the fact that it is provided by the rabbis themselves. Thus recent scholarship has offered an alternative scenario in which the rabbis operated at the fringes of Jewish society and, as such, should best be perceived as self-proclaimed.126
The fifth-century Theodosian Code refers to the synedrii as bodies entrusted with administrating Jewish life in the provinces.127 The exact meaning of the term synedrii, however, remains unclear. It may be understood as the ancient great Sanhedrin, the council of sages that constituted both the supreme court and a legislative body of ancient Israel.128 There is also the possibility that the synedrii were Jewish provincial councils that assumed local legal and political responsibilities, or possibly even several local councils operating in the same province.129 Nevertheless, whether at an imperial, provincial, or local level, these councils were dominated by Rabbanite scholars.130 Leaving aside the scholarly debate, the role of the rabbis should not be discounted, primarily in villages and smaller towns, where these men acquired prestige on account of their scholarly reputation.