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Literary Signals for Legal Abstraction in the Talmud Yerushalmi and the Justinianic Legal Corpus

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Literary Signals for Legal Abstraction in the Talmud Yerushalmi and the Justinianic Legal Corpus LITERARY SIGNALS FOR LEGAL ABSTRACTION IN THE TALMUD YERUSHALMI AND THE JUSTINIANIC LEGAL CORPUS A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2017 MARTON RIBARY SCHOOL OF ARTS, LANGUAGES AND CULTURES TABLE OF CONTENTS ABSTRACT ...................................................................................................................................5 DECLARATION AND COPYRIGHT STATEMENT ......................................................................................6 NOTE ON ABBREVIATIONS, SOURCES AND DATES ................................................................................7 NOTE ON TRANSLITERATION ........................................................................................................ 10 CHAPTER 1: INTRODUCTION ........................................................................................................ 11 1.1 Literary signals for legal abstraction ...................................................................... 12 1.2 The comparative study of Rabbinic and Roman law .............................................. 15 1.3 Thesis structure ...................................................................................................... 19 PART 1: LITERARY COMPARISON WITHOUT HISTORICAL INFLUENCE .................................. 23 CHAPTER 2: HISTORICAL CONTEXT ................................................................................................ 24 2.1 The hypothesis of rabbinic isolation ...................................................................... 24 2.2 The end of the Palestinian Patriarchate (396-429) ................................................ 25 2.2.1 The historical context for the creation of the Talmud Yerushalmi .................. 25 2.2.2 The demotion of Gamaliel VI and the Roman honorary senatorial titles ........ 29 2.3 Roman Jewry law in the golden days of the Palestinian Patriarchate (212-396) .. 34 2.3.1 Jewish status and the elusive concept of religio licita ..................................... 34 2.3.2 The isolating effect of Roman Jewry law ......................................................... 38 2.4 The isolation of the Jewish world in Palestine (429-553) ...................................... 42 2.4.1 The non-enforcement of discriminative Jewry law ......................................... 42 2.4.2 Novella 146 ΠΕΡΙ ΕΒΡΑΙΩΝ (“On the Hebrews”) of Justinian (553) ................. 46 2.5 Isolation, ignorance and indifference .................................................................... 48 CHAPTER 3: TOWARDS AN OLD/NEW APPROACH ............................................................................ 50 3.1 Comparison and influence ..................................................................................... 52 3.1.1 The structure of comparative research ........................................................... 52 2 3.1.2 Comparing the incomparable .......................................................................... 56 3.2 Towards an old/new approach .............................................................................. 59 3.2.1 The null hypothesis and the influence paradigm ............................................. 59 3.2.2 Comparing ancient legal cultures .................................................................... 62 PART 2: LITERARY SIGNALS FOR LEGAL ABSTRACTION ......................................................... 65 CHAPTER 4: LITERARY SIGNALS FOR LEGAL ABSTRACTION IN TWO SAMPLE TEXTS .................................. 66 4.1 The structure of comparing obligationes and neziqin............................................ 66 4.2 Reception history of the Justinianic corpus and the Talmud Yerushalmi .............. 68 4.2.1 The reception of Justinian’s Institutes and Digest ........................................... 68 4.2.2 The reception of the Talmud Yerushalmi ......................................................... 73 4.3 Text and context of the Roman law of obligations in Justinian’s Institutes ........... 76 4.3.1 Obligations in Roman law ................................................................................ 76 4.3.2 Justinian’s Institutes 3.13 and 4.1 .................................................................... 79 4.3.3 Preliminary remarks on the sample text from the Institutes ........................... 80 4.4 Text and context of the Rabbinic law of damages in the Talmud Yerushalmi ....... 82 4.4.1 Damages in Rabbinic law ................................................................................. 82 4.4.2 Talmud Yerushalmi Bava Qamma 1:1 (2a-b) ................................................... 87 4.4.3 Preliminary remarks on the sample text from the Yerushalmi ........................ 95 4.5 Three literary signals as case-studies ..................................................................... 97 CHAPTER 5: TEXT - VOICE - HISTORY .......................................................................................... 100 5.1 Voice, quoting and compositional history in the Justinianic corpus .................... 103 5.1.1. The omnipresent voice of the Institutes ....................................................... 103 5.1.2 The silent compiler and the compositional history of the Digest .................. 108 5.2 Voice, quoting and compositional history in the Talmud Yerushalmi ................. 118 5.2.1 From clauses to layers in the Yerushalmi ....................................................... 119 5.2.2 Caveats against the historical reconstruction of the anonymous “editor” ... 126 5.3 Text – Voice – History: Comparative observations .............................................. 131 CHAPTER 6: ESTABLISHING LEGAL TERMS ..................................................................................... 133 6.1 Definitions in Justinian’s Institutes ....................................................................... 134 6.1.1 The normative and descriptive sense of definition ....................................... 134 6.1.2 The linguistic variations of definition in the Institutes ................................... 136 6.1.3 The “defective” definition of obligatio in the Institutes ................................ 140 6.2 Labels in the Talmud Yerushalmi.......................................................................... 144 6.2.1 Labels and ostensive definitions .................................................................... 144 6.2.2 Rabbinic strategies of establishing legal terms .............................................. 146 6.2.3 Variations of labelling in the Talmud Yerushalmi .......................................... 149 6.3 Establishing legal terms: Comparative observations ........................................... 153 3 CHAPTER 7: ORGANISING LEGAL KNOWLEDGE .............................................................................. 155 7.1 The Roman classification of delicts in Justinian’s Institutes ................................. 156 7.1.1 Divisio and partitio ......................................................................................... 157 7.1.2 Genus and species .......................................................................................... 160 7.1.3 Didactic considerations in legal classification ................................................ 162 7.2 The Rabbinic classification of damages in the Talmud Yerushalmi ...................... 167 7.2.1 The genealogical vocabulary of classification ................................................ 168 7.2.2 Reclassifying damages.................................................................................... 171 7.3 Organising legal knowledge: Comparative observations ..................................... 177 CHAPTER 8: SYNTHESIS AND OUTLOOK ........................................................................................ 180 8.1 The wider context of preliminary results ............................................................. 181 8.1.1 From text to history in Justinian and the Yerushalmi .................................... 181 8.1.2 The Roman and Rabbinic treatment of the legal past ................................... 185 8.1.3 The Roman and Rabbinic classification of law ............................................... 189 8.2 Future avenues: “Scholasticism” and big data analysis ....................................... 192 BIBLIOGRAPHY ........................................................................................................................ 198 Word count: 79,879 4 ABSTRACT The topic of this thesis is the development of legal abstraction in Roman and Palestinian Rabbinic legal culture in late antiquity according to an analysis of sample texts and their parallels from the Justinianic legal corpus and the Talmud Yerushalmi. These substantive bodies of texts suggest that Roman jurists and their Palestinian Rabbinic counterparts were not merely preserving the legal knowledge of the past but that they also actively shaped it anew with the aim of creating a conceptually coherent yet flexible system. This thesis examines literary signals in the Institutes and Digest as well as in the Talmud Yerushalmi in order to identify the strategies by which these texts (a) constructed their relationship to the past by quoting legal authorities, (b) established legal terms and (c) arranged those terms in a systematic or discursive manner. An initial assessment of the texts’ historical context emphasises that the period between
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