A Common Justice. Uriel I. Simonsohn
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have not “matured” but are “young and imperfect.”
Such ideas may help us view early Christian canon laws exhorting believers, predominantly clergy, not to take their lawsuits outside the church. An objection against contention in court, whether presided over by an ecclesiastical judge or a layman, was shared throughout the Christian world. Yet there was a pragmatic recognition, even in the New Testament, that such ideals could not be imposed upon all believers. If a lawsuit were to arise, it was to be kept within the community and not brought before secular judges. Even in the fourth century, Roman bishops issued canons against clergy taking their lawsuits outside the church. Silvester (fl. 314-35) and Julius (fl. 337-52) had both decreed that clerics should not enter a court for any reason and should keep their legal concerns within the church.192 A canon from the East Syrian synod of 484, held in the city of Bēt Lapat—a summer residence of Sasanian monarchs—states: “As to a clerk or a monk [bar qyāmā w-dayrāyā], when he has a legal claim against a secular [‘ālmā], he may not voluntarily and under no coercion turn to the tribunal of the outsiders [barrāyē]: Whoever goes out and willingly does so, and is found guilty, thus committing himself to the oaths [taken] before pagans [ḥanpē] or gives an ecclesiastical oath, will be listed in a particular book. He shall be received after pleading and giving penance according to the rules of the priests.”193
In 576, Canon 5, issued at a synod of the East Syrian Church, refers to members of the Christian community who defy ecclesiastical judgment by seeking refuge outside the church:
It is said in the synod that there are people who are excluded from the church on account of their disobedience with regard to what is proper; they then cling to their defiance and their infidelity, seeking refuge among the pagans [ḥanpē] and the secular [‘ālmānāyē]; they trouble those who have excommunicated them. They demand pardon though they do not deserve it. With regard to their matter, this synod has decreed that until they become obedient and do the proper thing, they shall remain outside the church under affliction and penitence for a certain time, whereupon they shall be forgiven.194
The context in which these canons were given is unknown. Chapters 3 and 5 of this volume try to uncover the identity of the nonecclesiastical judicial authorities mentioned here. For now, it would be useful to note the principal approaches of Christian leaders toward non-Christian judiciary and the signs of early ecclesiastical efforts to impose judicial exclusiveness.
Jewish Attitudes toward Non-Jewish Judiciary
The Mishnah’s discussion of the validity of deeds issued in non-Jewish courts is the earliest rabbinic reference to the use of non-Jewish courts in late antiquity: “All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.”195
The Mishnah expresses an ambivalent opinion on the question of non-Jewish courts for the purposes of validating deeds. According to one opinion, the courts of non-Jews can be used for drawing up deeds, with the exclusion of bills of divorce and manumission of slaves. A second opinion, that of Rabbi Shim‘on, validates even the latter kinds of deeds when issued in non-Jewish courts.
A later rabbinic position reflects a much stricter attitude. The collection of exegesis of the Pentateuch, Midrash Tanhuma, ascribed to Tanhuma, a fourth-century Palestinian scholar, states: “There he cried onto the Lord…. There he made for them a statute and an ordinance and there he put them to the test (Exod. 15:25) for them and not for the worldly nations. For he who renounces the judgments of Israel and goes before the worldly nations has transgressed against God first, and then against the Torah.”196
The Babylonian Talmud discusses the Mishnah dealing with the validity of deeds that were drawn up in a non-Jewish court. The tannaitic rule, according to which all deeds that are drawn up in non-Jewish courts are valid except for bills of divorce and manumission of slaves, stimulated the discussion of the Babylonian sages:
[Mishnah]: All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except for writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.
[Gemara]: [Our Mishnah] lays down a comprehensive rule in which no distinction is made between a sale and a gift. We can understand that the rule should apply to a sale, because the purchaser acquires the object of sale from the moment he hands over the money in their presence, and the document is a mere corroboration; for if he did not hand over the money in their presence, they would not take the risk of drawing up a document of sale for him. But with a gift [it is different]. Through what [does the recipient] obtain possession? Through this document, [is it not]? And this document is a mere piece of clay?—Said Shmuel: The law of the government is law. Or if you prefer, I can reply: Instead of “except writs of divorce” in the Mishnah, read, “except [documents] like writs of divorce.”197
The talmudic discussion concerns two kinds of documents: “evidentiary” and “constitutive.” The former documents concern activities that are effectuated by payment, namely, monies that are given in exchange for goods. Here the document, a receipt, serves as evidence of such payment (rather than effectuates the transaction). In the latter, however, no payment takes place; thus the passing of property from one person to another is effectuated by the document itself. According to the Mishnah, all documents issued in Gentile courts are valid, except those that have a religious character, such as bills of divorce and manumission of slaves (their religious character precludes any non-Jewish involvement). In the Mishnah, however, there is no distinction between evidentiary and constitutive documents. The discussion in the Talmud concludes that evidentiary documents create no new legal state, but simply attest to one; thus they depend on credibility alone and hence are valid when issued by Gentile courts.
But in the case of constitutive documents, the Talmud asks how these can be valid if issued by a Gentile court. Such documents create legal states and therefore cannot be issued by a Gentile court, as it is outside the realm of Jewish law. The Talmud gives two different replies. The first is that, indeed, constitutive documents of Gentiles are valid in lands under Gentile rule (as was Palestine at the time of the Mishnah). Jews under Gentile rule must conform to Gentile law (“the law of the land”), and since the constitutive document (of gift) issued by a Gentile court is valid in Gentile law, it automatically becomes valid in Jewish law.
The second reply states that constitutive documents of Gentile courts are invalid. The remark of the Mishnah “except bills of divorce and manumission” should be read “such as bills of divorce and manumission.” Bills of divorce and manumission are disqualified here not because of their religious character (which indeed they have) but, more sweepingly, because of their constitutive character.
Settling disputes in non-Jewish courts also comes up in the Talmud:
[Gemara]: Rav Nahman said in the name of Shmuel: A get given under compulsion [exercised] by an Israelite court with good legal ground is valid, but if without sufficient legal ground, it is invalid, but it still disqualifies [the woman for a kohen].198 If enforced by a heathen court on good legal grounds, it is invalid but disqualifies [the woman for a kohen]; if without sufficient legal ground, there is no tincture of a get about it. How can you have it [both ways]? If the [heathens are] competent to apply compulsion, it should actually be valid. If they are not competent to apply compulsion, it should not disqualify! Rav Mesharsheya explained: According to the strict rule of the Torah, a get enforced by a heathen court is valid, and the reason that [the rabbis] declared it invalid was to prevent any [Jewish woman] from attaching herself to a heathen and so releasing herself from her husband. If that is so, [why did Shmuel say that] if it is enforced [by a heathen court] without sufficient legal ground, it has not even the tincture of a get? Let it at least be on a par with the similar get exacted