Literary signals for legal abstraction in the Talmud Yerushalmi and the Justinianic legal corpus

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 Caracalla's universal expansion of the applicability of Roman law in 212 CE and Justinian's Novella 146 ("On the Hebrews") in 553 CE saw Roman and Palestinian Rabbinic legal cultures growing apart from each other into isolation, ignorance and mutual indifference. Hence this thesis proposes an approach which goes back to the texts themselves. The thesis examines sample texts selected from the Roman law of obligations (Justinian's Institutes 3.13 and 4.1) and the Rabbinic law of damages (Talmud Yerushalmi Bava Qamma 1:1 [2a-b]) analysing their literary patterning and discursive structures which are discussed in the light of parallels within their own corpora. Emphasis is placed on structural characteristics and ideological tendencies, while judgement is necessarily suspended on influence, borrowing, and the exchange of legal institutions and ideas. It is concluded that the Justinianic texts and the Yerushalmi presented their own authority as based on the authority of the legal past which they upheld by intricate methods of quoting and explaining. The strategies of establishing and arranging legal terms suggest that the institutional context of the Roman law schools and the Palestinian Rabbinic study houses promoted a "scholastic" culture which fostered legal abstraction. Upholding the authority of the past and developing conceptual coherence, however, were carried out within very different hermeneutical parameters in the two cultures. Roman law aimed at the timeless ideals of iustitia and aequitas which motivated the philosophically-inspired forms of definition and a rigid classification framework based on the "scientific" vocabulary of genus and species. Palestinian Rabbinic law, in contrast, strove to realise the divine will which had been communicated in historical time and in the revealed text of the Bible. This is reflected in the Yerushalmi's technique of allowing labels to acquire technical meaning through their use (rather than defining them), and by its fluid classification framework based on the "organic" vocabulary of "fathers" (avot) and "generations" (toldot). Both of these strategies allowed the discourse to remain centred on the quotable wording of the biblical, Mishnaic and other authoritative sources. While Roman law enjoyed a measure of freedom from earlier choices of wording in its attempt to grasp the spirit of old law by philosophical enhancement, Rabbinic law distilled its hermeneutical tools and very legal vocabulary from the wording of old law.

Date of Award	1 Aug 2018
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Alexander Samely (Supervisor), Giglio (Supervisor) & Parkin (Supervisor)