Introduction to This Edition

INTRODUCTION TO THIS EDITION NATALIE B. DOHRMANN When encountering a 900-page book titled, less than whimsically, Jewish and Roman Law: A Comparative Study, written over half a century ago and studded on nearly eve- ry page with Hebrew, Greek, German, Latin, Aramaic and French, not to mention the chapters beckoningly named things like “Testimonial Compulsion” and “Accep- tilatio in Jewish Law,” one hardly expects to describe the work as delightful. Im- portant perhaps, or magisterial, even dense, obscure, or dated—all adjectives one might more intuitively anticipate. But while these descriptors are all in their turn true, this work manages to be, indeed, delightful. Boaz Cohen, who died in 1968, is a character I’d love to be seated beside at a dinner party. He has read and remem- bered seemingly everything in the Western canon and beyond, has a fresh eye for illuminating connections, possesses wit and deep sentiment, and above all, is curi- ous, generous, and—despite his staggering learning—deeply and essentially modest. His intellectual modesty is not born from piety but from a sense of the transience of scholarship, a keen awareness of the work to be done, and an appreciation for what we can’t and will never know. BIOGRAPHY: BOAZ COHEN (1899–1968) Boaz Cohen’s career was that of a man not only dedicated to scholarship in a range of disciplines, but one devoted to service, to the Conservative movement, and the Seminary, but also a man committed to kavod and community. Born in Connecticut at the turn of the century, Cohen attended public schools in Bridgeport, and ac- quired his Jewish learning through private tutors.1 He received rabbinical ordination from the Jewish Theological Seminary of America in 1924 and three years later a doctorate from Columbia University (from which he had also received his B.A. in 1921) comparing the Mishnah and Tosefta on the Sabbath.2 Cohen spent his career 1 David Golinkin, “A Bibliography of the Writings of Professor Boaz Cohen,” Jewish Law Annual 13 (2000): 65–66. 2 Published as Mishnah and Tosefta: A Comparative Study, Part I—Shabbat (New York, 1935). vii viii JEWISH AND ROMAN LAW at JTSA as a librarian and an instructor in Talmud.3 Though he was a scholar’s scholar, Cohen’s interest in Jewish law was not solely antiquarian. He was an active decisor in the Conservative movement, and wrote thousands of decisions. From 1940 to 1948 he chaired the Rabbinical Assembly’s Committee on Jewish Law and Standards, the movement’s legal authority.4 A thoughtful and influential halakhist, he published reflections on the work of legal interpretation in Law and Tradition in Judaism (New York, 1959). An American born and raised was relatively rare in early 20th-century Jewish studies in the States. But despite Cohen’s European-style ease with the classical canon, his fluent movement between modern languages, and his expected mastery of the rabbinic tradition, he was resolutely American. His humanism feels unburdened by the apologetic impulse and institutional limitations of his European forebears. CONTENTS Though subtitled “A Comparative Study,” in the singular, Jewish and Roman Law is a collection of twenty-five essays originally published in a range of venues between 1935 and 1963. All but the last two brief notes in Hebrew (“On the Minor” [1963] and “On Derelictio” [1950]) were written in English. The essays were gathered for the first time into two volumes by the Jewish Theological Seminary of America in 1966, shortly before Cohen’s death. The opening “general” section lays out the contours of his approach and tack- les big questions of a philosophical and theological nature, among them: ethics; a new derivation of Paul’s dichotomy between letter and spirit from Jewish, Greek, and Roman sources; the meaning of freedom and justice; and the delicate dotted line separating law and morals. The subsequent essays are arranged topically according to the tripartite structure with which Gaius structured his Institutes (p. 1245): laws of persons, things, and actions (a troika, by the way, which met with little favor among the Romans themselves, as Cohen gamely underscores). The two Hebrew pieces come at the end. The section on the laws of persons—essays on the complex and seminal topics of inheritance, marriage, and status—represents an extraordinarily meaty collocation of sources and insights. Its six essays take up the bulk of the work, the next two sec- tions decreasingly so. “Law of Things” in nine studies covers, self-evidently, proper- ty law—damages, usage, transfer, and the like. The final section, “Laws of Actions,” includes four chapters, having mostly to do with the courts and procedures for ad- judication. Cohen was apparently the collection’s editor, and he wrote a preface and introduction for the whole. That the collection is more than the sum of its parts is due in 3 Elias J. Bickerman and Edward M. Gershfield, “Boaz Cohen (1899–1968),” Proceedings of the American Academy for Jewish Research 37 (1969): xxix–xxxi. 4 Ibid., xxxi. 5 All page numbers here in parentheses are to this work. INTRODUCTION TO THIS EDITION ix part to the paratextual apparatus. There are 46 pages of addenda—a series of expan- sions and updates to scholarship in the footnotes and, more valuably, additional primary exempla from ancient sources. Cohen includes a short list of corrigenda (p. 802) as well as a one-page postscript, on which more below, followed by a set of indices, the first of which is a rather idiosyncratic 25-page subject and name index (pp. 805–30). The list of primary sources in the “Index of Passages” (pp. 831–81) offers a unique view into Cohen’s project. Arranged roughly chronologically by tradition, we see what he is talking about when he says the sources must come first, and are hum- bled by the breadth of materials that he commands. The Bible is heavily represented (only Obadiah and Jonah are absent) in a wide range of versions, languages, and editions (LXX, Aquila, Samaritan, Vulgate, Peshitta, targums, and more) as well as medieval Jewish Bible commentators. Over half the books of the New Testament get mention (Cohen has a deep interest in the Pauline corpus) as do Philo and Jose- phus and a smattering of apocryphal sources. As to be expected, tannaitic materials are central, as are the major codes, supplemented by geonic and post-talmudic re- sponsa, and a few references to medieval Jewish philosophy. Medieval voices are not paralleled on the classical side, but Cohen brings a formidable index of Roman legal materials, most heavily focused on the Digest. Though only a very few Greek liter- ary and legal (including Christian) sources appear, he does not scant significant eastern corpuses from Hammurabi to the Koran. The final 10 pages of the passage index are devoted to non-legal classical literature, philosophy, rhetoric, and history, as well as some Church fathers. The index in itself is a useful survey of the sources, and a rough guide helping direct the scholar from her base corpus to the most probable and useful loci of comparisons from the other culture. However, though 50 dense pages long, the passage index is as instructive in its omissions as in its content. A casual search of the footnotes shows far more exemplars in several categories than what appear in the indices. Most perplexing is the absence of any reference to the Talmud! One might surmise that this lacuna signals his intended audience: traditionally trained Jews. One could assume that the title of each chapter cues the accomplished talmudist as to the relevant primary sources from the Bavli, rendering an index unnecessary.6 Such a surmise helps also explain the index of foreign legal terms in Latin, Greek, Hebrew, Aramaic, Arabic, and Ancient Near Eastern languages. However, this theory does not account for the omission of the Palestinian amoraic sources: the Yerushalmi and the midrashim, though the talmuds are of course his main primary source. A terrific tool for the classically Jewishly-trained, but for a sojourning classicist for whom this work could and should be a vital resource, the unpointed, untranslat- ed Hebrew is virtually useless. In short, the index—which should welcome Roman- ists—makes itself rather unfriendly. 6 Listen for example to the point of view assumed here (p. 669 “Arbitration,” emphasis mine): “Let us recall the rules in the Talmud with respect to arbitration…” x JEWISH AND ROMAN LAW Another lacuna is religious law. “The laws of Damages [civil law], the sabbath, and Levitical rules of impurity,” Cohen argues, “are too different in origin, nature, and purpose, to permit analogies to be drawn one from the other” (p. 122). His “ju- ridical approach” thus involves disentangling what he calls “ritual law” from civil law, which is his focus. He acknowledges that this bifurcation is alien to rabbinic thinking and sources—and indeed one must make choices in a project of this scale. What is framed as an analytical decision aimed at finding common vocabularies in fact reiterates Roman divisions especially concerning subordinate populations like the Jews, to whom Rome granted legal autonomy regarding their religious law (religio/superstitio) but not civil and criminal jurisdiction. By omitting ritual law Cohen accepts the playing field as determined by the conqueror (i.e., CTh 2.1.10). It seems to me that given the many instructive and eye-opening parallels between Jewish and Roman sacred and ritual laws, that a comprehensive comparison remains a desidera- tum, all the more so given how easily classicists ignore Roman religious law, and Jewish studies scholars assume its sui generis distinctiveness.7 METHODOLOGY In more than one place Cohen states plainly that his motive in doing his research is corrective: the study of ancient law, he tells us, follows four standard scientific ap- proaches: dogmatic, historical, philosophic, and comparative.

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