Public and Private in Ancient Mediterranean Law and Religion Religionsgeschichtliche Versuche und Vorarbeiten Herausgegeben von Jörg Rüpke und Christoph Uehlinger Band 65 Public and Private in Ancient Mediterranean Law and Religion Edited by Clifford Ando and Jörg Rüpke DE GRUYTER ISBN 978-3-11-037102-4 e-ISBN (PDF) 978-3-11-036703-4 e-ISBN (EPUB) 978-3-11-039251-7 ISSN 0939-2580 Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. © 2015 Walter de Gruyter GmbH, Berlin/Munich/Boston Printing and binding: CPI books GmbH, Leck ♾ Printed on acid-free paper Printed in Germany www.degruyter.com Acknowledgments The conference that formed the starting point of this volume was co-financed by the University of Chicago’sCenter for the StudyofAncient Religions and the Kol- leg-Forschergruppe “Religious Individualization in Historical Perspective,” fi- nanced by the German Science Foundation (DFG). We are grateful to the Max Weber Center for hostingthe conferenceand to Diana Püscheland Elisabeth Be- gemann for theiraid in its organization. Our thanks likewise to SandhyaFuchs for assistance with the copy-editing. We offer special acknowledgment to Chris Faraone, not simplyfor the gen- erous support of Chicago’sCenter,but alsofor his aid in the initial planningof this project.Conversation at the conference wasnotablyenhancedbythe parti- cipation of Claudia Bergmann,Valentino Gasparini, Richard Gordon, Kristine Iara, István Kristó-Nagyand Salvo Randazzo.Claudia Bergmann, István Kristó- Nagyand Salvo Randazzo also delivered papers on that occasion but werein the end unable to contributetothe volume. We hope that the volume reflects ap- propriatelythe courtesy and rigor of their engagement. TableofContents Acknowledgments V Introduction 1 Edward M. Harris 1. The Family, the Community andMurder: The Role of Pollution in Athenian Homicide Law 11 AdriaanLanni 2. Public and Private in Classical AthenianLegal Enforcement 37 Esther Eidinow 3. φανερὰνποιήσει τὴναὑτοῦ διάνοιαν τοῖςθεοῖς:Some Ancient Greek Theories of (Divine andMortal) Mind 53 Elisabeth Begemann 4. Ista tua pulchralibertas: The Construction of aPrivate Cult of Libertyon the Palatine 75 William VanAndringa 5. “M. Tullius … aedem Fortunae August(ae) solo et peq(unia) sua” Private foundation and Public Cult in aRoman Colony 99 Judith EvansGrubbs 6. Making the Private Public: Illegitimacy and Incest in Roman Law 115 HarryO.Maier 7. Public and Private in Emergent Christian Discourse 143 RubinaRaja 8. Staging “private” religion in Roman “public” Palmyra. The role of the religious diningtickets (banqueting tesserae) 165 Natalie B. Dohrmann 9. Can “Law” Be Private? The MixedMessage of Rabbinic Oral Law 187 VIII TableofContents Catherine Hezser 10. Between Public and Private: The Significanceofthe Neutral Domain (Carmelit)inLate Antique Rabbinic Literature 217 Ahmed El Shamsy 11. Shame, Sin, and Virtue: Islamic Notions of Privacy 237 Contributors 251 Index 253 Introduction The distinction between public and private plays an essential role in modern un- derstandings of nearlyall aspects of social conduct.Indeed, it might even be said to be foundational in modern conceptions of the individual.¹ The terms themselvesderivefrom Latinroots, publicus and privatus. As with all such faux amis, the genealogicalrelation between lexemes works to efface the histor- ical specificity of the distinctions mapped by this essential polarity, as well as the very meaning of the terms themselves. Forexample, whereas Anglo-Ameri- can liberals and most Protestants conceive of religion as an essentiallyprivate matter – albeit for different reasons,within different frameworks – Cicero’s clauses on religion in On the Laws assign to all individuals both publicand pri- vatereligious lives, the one entailed by citizenship,the other normatively fami- lial (Cicero De Legibus 2.19). The aim of this volume, as of the conference in which it originates, is to ex- plore the public-privatedistinctionintwo grand normative domains of life in the ancient Mediterranean, lawand religion. From its inception, the project has taken twoprinciples as axiomatic: first,for all the weight with which the distinc- tion is freighted, its definition and salience within particular ideological contexts are highlycontingent.Second, notionsofpublicand private(insofarasthese have reasonable correlates in the cultures under study)themselvesinteract with highlychargedbut equallycontingent concepts: the household, the family, and the people as political collectivity among them. Forthese reasons,weplan- ned aconference and volume that wereavowedlycomparative and historicist.² In this way, the project aspires to shed light not simplyonwhy,when and where boundaries are drawn, but also, ex comparatione,onwherethey are not. By wayofsetting the stage, we might set in dialogue with each other and with our own project some notable works of scholarshipinrelated domains. In some contexts – American search and seizure law, for example – the house- hold or,more properly, the walls of one’sdwelling, are takenasaboundary be- tween the publicand private.³ In Athenian political thought, the household is not simplyasite privileged and protected in law; it is also accorded an ontology prior to that of the political.InAristotle’s Politics,for example, the oikos pre- Apoint stressed by Eidinow in her chapter. This aspiration to comparatism differentiates this project from several very fine recent works on aspects of the public-privatedistinctioninantiquity,notably de Polignac and Schmitt Pantel 1998, Macé 2012, and Dardenayand Rosso 2013. Davies 1999 offers an idiosyncratic history. 2 Introduction cedes the polis and, indeed, political communities can be regarded as formed from an agglomeration of households. Andyet,asSusan Lape has shown,the intertwined notions of family and oikos have ahistory,and an intenselypolitical one at that: it was Solon who established the intergenerational and conjugal household as the normative basis for social reproduction.⁴ Thecontingency and culturalspecificity of the Romanhousehold, by contrast,isemphasized not simply by Romanlawyers speaking to the peculiarity of patriapotestas,⁵ but alsobythe myth of Rome’sorigin in Romulus’ asylum: in that history, Rome is foundedthrough agathering of individual males,and its households are necessarilyestablished both later and by exogamy. In the Greco-Roman, liberaland republican traditions, at least,what one es- tablishes as prior to the political is necessarilynaturalized, and is thereby often removed from the reach of statal power.Within this heuristic, Athensand Rome are twodifferent worlds. Of course, the notional autonomyofthe household – its existencebeyond statal control – is largely an ideological artifact.Weare thereforecompelled to ask, in the interest of whose power,and whose subjugation, werethese narra- tivescrafted, modified and retold. Of course, Athenian and Roman households weresimilar in being patriarchal, but the reach of ideologies of household and familystructure do not end there. Rather,social and religious authority in the household is regularlyestablished in explicithomologytothe structures of authority in the public sphere.⁶ In this way, the notional autonomyofthe household has historicallyoften operated to naturalize patriarchyinpublic mag- istracy, and vice versa:soinAthenian tragedy, the health and purity of king’s household is often treated as synecdochic for the healthand purity of the com- munity as awhole, while at Rome, the authority of the household is often figured as dependentupon the status of the elite male in the public sphere. That said, whatever the explicit direction of analogyinargument,the prevalance of patri- archyinthe two domains is de facto mutuallyconstitutive or,one might say, they are mutuallydependent and (logically, at least) equallyfragile. Thisquarrel over the ontology of the household and its relation to the political is mirrored at the dawn of Anglophone political theory,inthe sharp disagreement between Hobbes and Lockeabout the parties to the social contract and, indeed, the equality of women to men.⁷ Not for nothing,therefore, have principal aims of the feminist Lape 2002/3;see also Lape 2003. On which point see the chapterbyEvans Grubbs,p.XXX. Ando 2009:180. Hobbes of course posited individuals as the contractingparties and argued for the radical equality in nature, at least,ofall persons. Introduction 3 traditionaloverall, and the Anglo-American feminist critique of liberalism in par- ticular,been to analyze the “politics” and “economy” of the familyand to call to account normative distinctions between public and private.⁸ The concept of the public deserves similar scrutinyand historicization, but, outside Roman law, this has been slow to happen in classical studies.⁹ On this topic the essential provocation should have been the historical argument of Jür- genHabermas in Strukturwandel der Öffentlichkeit (1962),tothe effect that antiq- uity had no notion of “the publicsphere” as anon-private, non-familial but also non-statal space: this was adevelopment of earlymodernEngland and,toa point,the Netherlands.¹⁰ Wasitinfact true that antiquity lacked the ability to conceptualize non-familialcollectivities and non-household