The discovery of ‘equity’ on the borders of Roman and Rabbinic law

Description

The beginnings of legal abstraction and the institutionalisation of legal tuition are apparently related in both Roman and Rabbinic law. In the early centuries CE two highly abstract, though significantly different, legal corpora emerged by the analytical study of case law traditions in the post-classical Roman ‘law schools’ and the Rabbinic ‘study houses’: the more functional Corpus Iuris of Justinian (530-534 CE) and the more formalistic Palestinian (ca. 350-400 CE) and Babylonian Talmuds (6th century CE). Are legal principles and concepts extracted from case law? Did legal scholars set out to create a system on philosophical and moral grounds? Are the differences in arrangement, style and rhetoric due to historical circumstances, or are the nature and process of legal abstraction significantly different in Roman and Rabbinic law? To address such general questions, my paper proposes a case-study based on an extended and controversial passage in the Babylonian Talmud (bBava Qama 37b-39a) which questions the Mishnaic legal discrimination against non-Jews in the specific tort case of the goring ox. My paper outlines what course of action Roman law might have offered in a similar case, and why Roman officials objected to the Rabbinic legislation according to the story incorporated in the Talmudic passage (bBava Qama 38a). Variants of the story (Sifre Deuteronomy § 344 and yBava Qama 4:3) as well as corresponding Talmudic passages (bBava Qama 113a-b, bBava Bathra 54b-55a etc.) about the conflict of Jewish and foreign law indicate that the Roman idea of equity was a creative, but probably suppressed force of legal invention in Rabbinic circles too. My paper argues that once general moral principles penetrated practical legislation via the ius gentium in Roman or the Noahide laws in Rabbinic law, they were used innovatively to create an abstract architectonic structure in both legal cultures.

Period	7 Jul 2013
Event title	The Annual Conference of the British Association for Jewish Studies: Memory, Identity, and Boundaries of Jewishness’
Event type	Conference
Location	Canterbury, United KingdomShow on map
Degree of Recognition	International