The Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives: General Analysis and Three Case Studies on Law of Succession, Guardianship and Marriage (Studies on the Texts of the Desert of Judah)

Using a division between substantive and formal law as the key element for understanding the applicable law in papyri, this study offers a new understanding of the distinct parts Roman and local law played in the legal reality of second-century Arabia. ISBN-13: 9789004149748 Contents 6 Preface 12 List of Abbreviations 14 GENERAL INTRODUCTION 16 Introduction 18 I. The Texts 20 The archives 20 Th e Babatha archive 20 Babatha and her family 22 Th e Salome Komaise archive 27 Salome Komaise and her family 30 Legal implications of the documents 32 Women's archives 32 Continuity and change: obtemperare legibus nostris Traianus conpulit imperator? 34 'Reichsrecht und Volksrecht' and confl ict of law 40 Previous treatment of legal issues in relation to present study 46 II. THE TREATMENT 58 Terminology 58 a. the meaning of law or legal system 58 b. Jewish law at the time of the archives 59 c. Roman law at the time of the archives 65 Method 68 Sources 70 Note on extent of legal detailing 71 PART ONE THE LAW BEHIND THE DOCUMENTS: EXTERNAL AND INTERNAL EVIDENCE 72 Introduction to part I 74 Chapter One: Language 78 I. Language and Law 78 Greek as language used in legal documents 79 Roman vs. indigenous courts? 88 Greek vs. Aramaic? 93 Choice of language is choice of law? 99 II. Conclusions 103 Chapter Two: Language and References to Law 108 I. Case Studies 108 P.Yadin 2 and 3: a Jew amongst Nabataeans 108 P.Yadin 6: Jews conducting business in Nabataean 112 P.Yadin 8 and 9: diff erent yet the same 122 P.Hever 60 and 12: Aramaic where Greek is expected 130 P.Yadin 5, 17: depositing 'according to the law of deposit' 132 P.Yadin 11: loan from a Roman centurion 171 P.Yadin 21–22, 23–24: a sale without capacity to dispose? 183 II. Conclusions 196 Overview 196 Chronological development 199 Th e use of languages against the background of the parties 199 References to law in the documents 201 Law behind the documents 201 Chapter Three: A New Approach to Understand the Relationship between Roman and Local Law in the Archives 203 I. Determining the Applicable Law 203 Under Nabataean rule 203 Language and references to law 203 General-specific 205 Under Roman rule 208 Language and references to law 208 Formal-substantive 210 II. Conclusions 219 PART TWO THE LAW BEHIND THE DOCUMENTS: CASE STUDIES 222 Introduction to part II 224 Chapter Four: Law of Succession 228 I. Evidence for Applicable Law of Succession in the Archives 229 Son 229 Other children/wife in presence of a son 235 In absence of a son 241 Order of succession based on documentary evidence 252 What law determined the order of succession found in the documents? 252 II. Discussion of Legal Position of Daughter in Ancient Eastern Legal Systems 261 Egypt 261 Evidence from legal code and documents 261 Conclusions 265 Mesopotamia 266 Mesopotamian law anterior to Hammurabi's Code 266 Old Babylonian law 270 Excursus: the daughter-heir in Athenian law 274 Assyrian laws 277 a. Old Assyrian 277 b. Middle Assyrian 279 c. Neo-Assyrian 281 Nuzi 282 Overview 286 Anatolia and the Levant 289 Hittite Laws 289 Emar 292 Alalakh 296 Ugarit 299 Overview 304 Excursus: Elephantine 305 III. Conclusions 307 Overview 307 Conclusions 309 CHAPTER FIVE GUARDIANSHIP 314 I. Guardianship of a Minor 315 Th e case of Babatha's son Jesus 315 Th e appointment of the guardians 316 Th e dispute about maintenance 334 Th e actio tutelae 345 Contents and formalities 351 Excursus: did Babatha win her case? 359 Th e case of Judah's nephews 361 II. Guardianship of a Woman 369 Evidence pro and contra 369 Two legal concepts? 381 Th e demands of formal law: the case of P.Yadin 27 383 III. Conclusions (Chapter Six: Marriage) 387 CHAPTER SIX MARRIAGE 393 I. P.Yadin 10: Babatha's Document: A Real Ketubba? Structure and most important features of P.Yadin 10 394 Th e ketubba and its legal implications 403 Babatha's sale of the dates 404 Babatha's dispute with Besas 406 Babatha's dispute with Miryam 408 Conclusions 411 II. P.Yadin 18: Shelamzion’s Document: Jewish vs. Hellenistic? 413 Structure and most important features of P.Yadin 18 413 Jewish, Hellenistic, or is it? 416 Conclusions 435 III. P.Hever 65: Salome Komaise’s Document: Premarital Cohabitation or Agraphos Gamos? 438 Structure and most important features of P.Hever 65 438 Premarital cohabitation? 439 Agraphos gamos 442 Conclusions: Legal implications of diff erent interpretations 447 IV. Conclusions: What Marriage Documents Can Show Regarding the Development of (Jewish) Law 448 Bibliography 454 Indices 464 #,Publisher:,BRILL,#,Number,Of,Pages:,458,#,ISBN-10,/,ASIN:,9004149740 The discovery of the Babatha archive provided scholars with unique opportunities for reconstructing the life of Jews in second-century Arabia. Although legal issues and especially the question of the relationship between Roman and local law have received attention in a number of publications, this study presents the first complete overview of the legal situation as presented in the Babatha as well as the Salome Komaise archive, using references to law in the documents'texts as the key element for understanding what law is applicable to these documents. By distinguishing between two levels in the papyri, of substantive and of formal law, a new understanding is reached of the part both Roman and local law played in legal reality. The discovery of the Babatha archive provided scholars with unique opportunities for reconstructing the life of Jews in second-century Arabia. Although legal issues and especially the question of the relationship between Roman and local law have received attention in a number of publications, this study presents the first complete overview of the legal situation as presented in the Babatha as well as the Salome Komaise archive, using references to law in the documents' texts as the key element for understanding what law is applicable to these documents. By distinguishing between two levels in the papyri, of substantive and of formal law, a new understanding is reached of the part both Roman and local law played in legal reality Language -- Language And References To Law -- A New Approach To Understand The Relationship Between Roman And Local Law In The Archives -- Law Of Succession -- Guardianship -- Marriage. By Jacobine G. Oudshoorn. Includes Bibliographical References (p. [439]-447) And Index.