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The Relationship Between Roman and Local Law in the Babatha And Th e Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives OUDSHOORN_f1_i-xiv.indd i 6/29/2007 7:54:45 PM Studies on the Texts of the Desert of Judah Edited by Florentino García Martínez Associate Editors Peter W. Flint Eibert J.C. Tigchelaar VOLUME LXIX OUDSHOORN_f1_i-xiv.indd ii 6/29/2007 7:54:45 PM Th e Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives General Analysis and Th ree Case Studies on Law of Succession, Guardianship and Marriage by Jacobine G. Oudshoorn LEIDEN • BOSTON 2007 OUDSHOORN_f1_i-xiv.indd iii 6/29/2007 7:54:45 PM Th is book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Oudshoorn, Jacobine G. Th e 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 / by Jacobine G. Oudshoorn. p. cm. — (Studies on the texts of the desert of Judah ; v. 69) Includes bibliographical references and index. ISBN 978-90-04-14974-8 (hardback : alk. paper) 1. Jewish law—History—Sources 2. Roman law—History—Sources. 3. Domestic relations (Jewish law) 4. Domestic relations (Roman law) 5. Dead Sea scrolls. 6. Manuscripts, Hebrew (Papyri) I. Title. II. Series. KB197.2.093 2007 340.5'3948—dc22 2007026970 ISSN: 0169-9962 ISBN: 978 90 04 14974 8 Copyright 2007 by Koninklijke Brill NV, Leiden, Th e Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to Th e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands OUDSHOORN_f1_i-xiv.indd iv 6/29/2007 7:54:46 PM CONTENTS Preface .................................................................................................. xi List of Abbreviations ........................................................................... xiii GENERAL INTRODUCTION Introduction ........................................................................................ 3 I. Th e Texts ....................................................................................... 5 Th e archives ................................................................................... 5 Th e Babatha archive ................................................................ 5 Babatha and her family ........................................................... 7 Th e Salome Komaise archive .................................................. 12 Salome Komaise and her family ............................................ 15 Legal implications of the documents Women’s archives ...................................................................... 17 Continuity and change: obtemperare legibus nostris Traianus conpulit imperator? ............................................. 19 ‘Reichsrecht und Volksrecht’ and confl ict of law .................. 25 Previous treatment of legal issues in relation to present study ......................................................................... 31 II. Th e Treatment Terminology ................................................................................... 43 a. the meaning of law or legal system ................................... 43 b. Jewish law at the time of the archives .............................. 44 c. Roman law at the time of the archives ............................. 50 Method ........................................................................................... 53 Sources ........................................................................................... 55 Note on extent of legal detailing ................................................. 56 OUDSHOORN_f1_i-xiv.indd v 6/29/2007 7:54:46 PM vi contents PART ONE THE LAW BEHIND THE DOCUMENTS: EXTERNAL AND INTERNAL EVIDENCE Introduction to part I ......................................................................... 59 Chapter One: Language .................................................................... 63 I. Language and Law .................................................................. 63 Greek as language used in legal documents .......................... 64 Roman vs. indigenous courts? ............................................ 73 Greek vs. Aramaic? .............................................................. 78 Choice of language is choice of law? ...................................... 84 II. Conclusions .............................................................................. 88 Chapter Two: Language and References to Law ........................... 93 I. Case Studies .............................................................................. 93 P.Yadin 2 and 3: a Jew amongst Nabataeans ....................... 93 P.Yadin 6: Jews conducting business in Nabataean .............. 97 P.Yadin 8 and 9: diff erent yet the same ................................. 107 P.Hever 60 and 12: Aramaic where Greek is expected ........ 115 P.Yadin 5, 17: depositing ‘according to the law of deposit’ ... 117 P.Yadin 11: loan from a Roman centurion ........................... 156 P.Yadin 21–22, 23–24: a sale without capacity to dispose? 168 II. Conclusions .............................................................................. 181 Overview ................................................................................... 181 Chronological development ................................................. 184 Th e use of languages against the background of the parties ......................................................................... 184 References to law in the documents ................................... 186 Law behind the documents ..................................................... 186 Chapter Th ree: A New Approach to Understand the Relationship between Roman and Local Law in the Archives ... 188 I. Determining the Applicable Law .......................................... 188 Under Nabataean rule Language and references to law ......................................... 188 General-specifi c .................................................................... 190 OUDSHOORN_f1_i-xiv.indd vi 6/29/2007 7:54:46 PM contents vii Under Roman rule Language and references to law ......................................... 193 Formal-substantive .............................................................. 195 II. Conclusions .............................................................................. 204 PART TWO THE LAW BEHIND THE DOCUMENTS: CASE STUDIES Introduction to part II ....................................................................... 209 Chapter Four: Law of Succession .................................................... 213 I. Evidence for Applicable Law of Succession in the Archives .................................................................................... 214 Son ............................................................................................. 214 Other children/wife in presence of a son ............................... 220 In absence of a son ................................................................... 226 Order of succession based on documentary evidence .......... 237 What law determined the order of succession found in the documents? ................................................................ 237 II. Discussion of Legal Position of Daughter in Ancient Eastern Legal Systems ............................................................. 246 Egypt Evidence from legal code and documents ......................... 246 Conclusions ........................................................................... 250 Mesopotamia ........................................................................... 251 Mesopotamian law anterior to Hammurabi’s Code ........ 251 Old Babylonian law ............................................................. 255 Excursus: the daughter-heir in Athenian law .............. 259 Assyrian laws a. Old Assyrian ............................................................... 262 b. Middle Assyrian ......................................................... 264 c. Neo-Assyrian ............................................................... 266 Nuzi ....................................................................................... 267 Overview ............................................................................... 271 OUDSHOORN_f1_i-xiv.indd vii 6/29/2007 7:54:46 PM viii contents Anatolia and the Levant ......................................................... 274 Hittite Laws ......................................................................... 274 Emar .................................................................................... 277 Alalakh ................................................................................ 281 Ugarit ................................................................................... 284 Overview ............................................................................. 289 Excursus: Elephantine ............................................................ 290 III. Conclusions ............................................................................
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