publisher colophon
ABSTRACT

In tKet 4.5 a rare distinction between types of captives is introduced, bearing dramatic consequences: a husband must ransom his wife if she is a "captive of banditry" but not if she is a "captive of a kingdom." In addition, the Tosefta rules that if divorced, the ransomed wife is entitled only to a ketubah of 100 dinars, and not of 200 dinars as expected by the standard halakhah. Despite previous scholarly efforts, the rationale for the distinction and its unique legal implications remains unclear. In this essay, we offer a solution based on the Roman law of captivity. We argue that this distinction is adopted from the Roman law that distinguishes between captors based on the degree of their political legitimization. Furthermore, the reduced monetary obligations of the husband in the Tosefta should be understood in light of the legal consequences of captivity on a citizen which, according to Roman law, entail suspension or dissolution of all the citizen's legal bonds, including marriage. Beyond solving local problems, the essay points to a profound impact of the Roman model of citizenship on tannaitic halakhah. According to the common opinion, external circumstances cannot impact the status of a Jew vis-à-vis the halakhah. In contradistinction, the Tosefta follows the Roman model that views the applicability of the law as a matter of citizenship, which may be lost.

KEY WORDS

Roman law, rabbinic law, captives, citizenship, marriage, divorce, ketubah, ransom

introduction

In a discussion concerning the husband's duty to ransom his captive wife, the Tosefta (tKet 4.5) introduces a rare distinction between two types of captives: "captive of a kingdom" and "captive of banditry." This distinction has wide-ranging consequences, for, according to the Tosefta, a husband must ransom his wife if she is a "captive of banditry" but not if she is a "captive of a kingdom." Despite previous scholarly efforts, the basis and rationale for this distinction and its legal implications have remained unclear. An additional challenge emerges from the following ruling in the Tosefta, which states that if divorced, the ransomed wife is entitled to a ketubah (the wife's settlement from her marriage contract) of 100 dinars, and not of 200 dinars as would have been expected according to the standard halakhah. Scholars have struggled to explain the reason for this reduction of the ketubah.

In this essay we wish to offer a solution to both of these difficulties by turning to the Roman law of captivity. We will argue that the distinction between two types of captors is a direct adoption of Roman law and incorporates the legal rationale that underlies it as well. Similarly, the reduced ketubah should be understood in light of the legal consequences of captivity for a citizen, which, according to the Roman law, entail suspension or dissolution of the citizen's legal bonds, including marriage. Beyond solving local problems, understanding how the Roman law was implemented in the Tosefta points, as we will argue, to a profound—and [End Page 141] currently mostly overlooked—impact of the Roman model of citizenship on tannaitic halakhah, an impact relating to the conceptual link between the status of citizenship and the application of the law to its subjects.

defining the problem

The obligation of the husband to ransom his wife if she had been taken captive appears several times in tannaitic sources.1 The Mishnah (mKet 4.8) states:2

inline graphic

If he had not written to her, "If you are taken captive I will ransom you and restore you as my wife," or, if she was the wife of a priest, "[I will ransom you and] will bring you back to your city," he is still liable [to do so] since that is a condition enjoined by the court.3

This mishnah rules that a husband is obligated to ransom his wife even in a case where there was no such explicit commitment in the ketubah (marriage contract)—the so-called ransom clause.4 [End Page 142]

The same ruling is repeated in the following mishnah, this time apodictically: "If she was taken captive he must ransom her inline graphic."5 On the backdrop of these clear-cut rulings, it is difficult to understand the seemingly contradictory halakhah in tKet 4.5:6

inline graphic

inline graphic

inline graphic

  1. A. If she was taken captive he does not have to ransom her.

  2. B. To whom does this apply? To a captive of a kingdom, but with regard to a captive of banditry—he must ransom.

  3. C. If he wishes to uphold he may uphold, and if not—he shall let her go and he shall give a ketubah of 100 (dinar). [End Page 143]

This three-part halakhah raises several difficulties: first, the opening statement, which rules that the husband does not have to ransom his captive wife, seems to directly contradict the explicit halakhah in mKet 4.9 stating that the husband must ransom his wife.

It would have been possible to resolve this contradiction by assuming a diachronic development regarding the ransom obligation: this tosefta may represent the earlier halakhic stage when there was no such obligation, unless a ransom clause was explicitly included in the ketubah; whereas the ruling in mKet 4.9 represents a later development according to which the obligation stands even without a ransom clause.10 However, the tosefta in part B does not offer a historical explanation but rather prefers to resolve the contradiction by positing a different distinction:11 the exemption from the ransom obligation refers to a case when the woman is a "captive of a kingdom," whereas if she is a "captive of banditry" the husband must ransom her. This solution does indeed mitigate the contradiction between the Mishnah and the Tosefta, but it creates a new difficulty, since such a distinction between captives is itself unclear. Why would the obligations of the husband toward his wife change according to the status of the captors? And why would the obligations toward a captive of a kingdom be smaller than those toward a captive of banditry?

Finally, the tosefta ends with the ruling that after the wife had been ransomed the husband can decide if he wishes to uphold the marriage. If he does not wish to uphold it, he may divorce his wife, paying her a reduced sum of only 100 dinar (inline graphic), although the woman was a virgin at the time of her marriage and thus her ketubah should have been 200 dinar. What is the reason for such a retroactive "discount" in the ketubah?

Another difficulty in understanding the ruling of the tosefta arises from a baraita that appears in bKet 51b:12 [End Page 144]

inline graphic

Our rabbis taught: "Captives of a kingdom are regarded as captives; captives of bandits are not regarded as captives."

This baraita is the only other place in rabbinic literature in which the terms "captives of a kingdom" and "captives of bandits" appear alongside each other. It is hard to reconstruct the original context of this baraita, but it would seem that it assumes that defining a person as a captive carries various legal ramifications. The baraita makes it clear that it is only "captives of a kingdom" who have the (legal?) status of captives, distinguishing them from "captives of bandits." Comparing this baraita to the tosefta underscores the difficulty mentioned above, namely, why does the husband have no obligation to ransom a captive of a kingdom, who has the status of a captive, whereas there is an obligation to ransom a captive of banditry, who supposedly is not regarded as a captive?

As we will see, both traditional and modern solutions to these difficulties (which are in fact a variation of the same principle) are far from satisfying.

voluntary or involuntary intercourse: the traditional solution

The sugya in bKet 51a deals extensively with the details of a husband's obligation to ransom his wife should she be taken captive. The basic assumption of the sugya is that the husband must ransom his wife, unless she cannot legally go back to being his wife after her return from captivity.14 In such a case the husband is exempt from the ransom obligation. In addition, the Bavli assumes that the exemplary case in which the wife would be forbidden to her husband upon returning from captivity is when she willingly had intercourse with her captors.15 It is in this context that [End Page 145] the Bavli discusses the tosefta's distinction between "captives of a kingdom" and "captives of banditry." The sugya, though, does not cite the tosefta explicitly, but refers to it while discussing the baraita mentioned above:

inline graphic

Our rabbis taught: "Captives of a kingdom are regarded as captives; captives of bandits are not regarded as captives."

But the reverse has been taught!

There is no contradiction between "kingdom" and "kingdom": since one refers to the kingdom of Ben Netzer while the other refers to the kingdom of Ahasuerus.

There is also no contradiction between "bandits" and "bandits": the one refers to Ben Netzer while the other refers to an ordinary bandit.

[As to Ben Netzer,] there he is called "king" and here "bandit"?

In comparison with Ahasuerus he is a bandit, but in comparison with an ordinary bandit he is a king.

It would seem that by the question "But the reverse has been taught!" (inline graphic) the Bavli alludes to the tosefta16 and refers to the same contradiction we have pointed out earlier, that is, between the ruling in the baraita, according to which a captive of a kingdom is considered a captive and thus, it is assumed, would have to be ransomed, and the ruling of the tosefta that the husband does not have to ransom his wife when she is a captive of a kingdom.

The solution suggested by the anonymous layer (stam) is based on the creation of an intermediate category of "the kingdom of Ben Netzer" which, depending on the circumstances, might be considered either as a [End Page 146] kingdom or as banditry. Ben Netzer (Odaenathus, 220–67 c.e.),17 who was active during the second half of the third century, founded the short-lived Kingdom of Palmyra (Tadmor), between the Roman and Sasanian empires, which was destroyed by the Romans in 273 c.e.

The sugya, though, does not clarify how this distinction explains why there is a duty to ransom a captive of a kingdom and not a captive of banditry. Rashi reasonably connects this to the basic assumption according to which the husband is exempt from ransoming his wife whenever there is reason to believe that the woman would not be able to regain her status as a permitted wife to her husband once she is released from captivity, as in the case when she had succumbed willingly to her captors.18 [End Page 147] Thus the solution offered by the Bavli—that the baraita's statement "captives of a kingdom are captives" refers to "the kingdom of Ahasuerus"—is intended, according to Rashi, to explain why the captive woman was coerced and therefore must be ransomed: "for he is a great king and she knows that he will not marry her, and thus the sexual intercourse is forced." The tosefta, on the other hand, which deals with a captive of a kingdom that does not need to be ransomed, refers to "the kingdom of Ben Netzer." According to Rashi, this is due to the fact that since Ben Netzer is still considered a bandit on some level the captive woman might believe he will marry her (unlike a true king) and would thus succumb willingly to sexual intercourse, and hence the husband would be exempt from the duty to ransom her.

To recapitulate: it would seem that the Bavli interprets the tosefta in the following way: the husband must ransom his wife whenever she is permitted to him upon returning from captivity. On the other hand, when she is not permitted to him, he does not have to ransom her. According to Rashi, and the medieval commentators who followed him (such as Ritva, Ramban, Ran), the distinction between a "captive of a kingdom" and a "captive of banditry" is also based on the evaluation of the probability that the woman would succumb willingly to her captors, thus becoming forbidden to her husband. When it is likely that she has succumbed (the kingdom of Ben Netzer)—the husband does not have to ransom her, but if there is no such likelihood (banditry)—the duty to ransom stands.

The advantage of such a reading is that it harmonizes the tosefta's ruling with the basic assumption that it is the duty of the husband to ransom his wife, as we have seen in the Mishnah. Yet this reading has several shortcomings. First, it is based on the assumption that the duty to ransom expires in the case that the wife willingly succumbs to her captors. The Mishnah does indeed discuss whether a wife is permitted to her husband or not according to what happened during the period of captivity, as in mKet 2.9 (to which we will return). However, we do not find in the Mishnah or in any other tannaitic source a clear link between this and the duty of the husband to ransom his wife. Such a link is an innovation that first appears only in the amoraic sources. As mentioned above, the Mishnah requires a priest to ransom his wife, although he cannot take her back even if she was coerced to have intercourse against her will.19 [End Page 148] This would further underline the lack of connection between the husband's duty to ransom and the woman's behavior in captivity. Finally, in order to adopt the solution the Bavli suggests, one has to accept the strange assumption that distinguishes between different types of kingdoms: concerning one type (Ben Netzer) it is presumed that the woman willingly succumbed to her captors, whereas concerning the second type of kingdom (Ahasuerus) it is assumed that the woman was coerced. There is no textual basis for such a distinction in tannaitic sources.

A variation of this solution was suggested by Saul Lieberman in his long commentary to the tosefta:20

And the baraita deals with captives of a kingdom, that is, when officers of the Evil Kingdom would take maidens captive before they had entered the ḥupah—similar to what they had done in Judea during the period of persecution—and thus the woman was not yet in reverence of her husband and she did not protect herself, and it is to be feared that she succumbed willingly. You should know that this is so, since the authorities did not take her captive in order to receive her ransom money, but rather for sexual purposes. […] And the baraita speaks of present circumstances, and the Romans chased after unattached virgins, and even betrothed women were considered by them unattached. […] But concerning captives of banditry, where there is no fear that she would succumb willingly to him, he must ransom her.

Lieberman also distinguishes between "captives of a kingdom" and "captives of banditry" based on whether the woman had intercourse with her captors willing or unwillingly, in line with the Bavli's assumption that when the woman had intercourse willingly the husband does not have to ransom her. To this Lieberman adds another assumption according to which the tosefta does not deal with a married woman but rather only with a betrothed woman. [End Page 149]

This double assumption enables him to solve a chronological problem that arises from the Bavli's solution: the Bavli discusses the Kingdom of Ben Netzer, which existed in the second half of the third century and thus could not have been known to the editors of the Tosefta. Lieberman, on the other hand, refers to an earlier historical event, which supposedly took place in the Land of Israel during the Great Revolt, as he explains in the following:

It is clear that the Talmud only employed a mere example, and did not intend to claim that the baraitot deal with captives of Ahasuerus or Ben Netzer (Odaenathus), that is, at the beginning of the second half of the third century c.e. It would seem that the baraita refers to a known incident in which officers of The Kingdom [i.e., Rome] captured women for intercourse. And regarding that time they said: "If she was taken captive he does not have to ransom her." And it is possible that the reason is that the women could have saved themselves if they would have resisted.21

According to Lieberman, during the Great Revolt, Roman officers would take betrothed virgins captive and have intercourse with them.

By setting up the ruling of the tosefta as referring specifically to a betrothed woman, Lieberman wishes to solve yet another problem: why is it that when the husband ransoms but decides not to uphold the marriage, he may divorce his wife and pay her a reduced ketubah of 100? If, however, we are dealing with a betrothed woman, who has not yet entered matrimony as a virgin whose ketubah is 200, but rather as a woman who has had intercourse prior to her marriage, then she is only eligible for a ketubah of 100.

Lieberman's suggestion, which is structurally based on the solution offered by the Bavli, suffers from the same difficulties described above: Lieberman, like the Bavli, holds onto the assumption, which is not at all self-evident, that the husband's duty to ransom his wife is rescinded if she voluntarily has intercourse with her captors. As noted, the basis for such an assumption is not clear. Moreover, Lieberman's effort to read into the tosefta the assumption that it deals only with a betrothed woman is likewise difficult. In this context, Lieberman wishes to rely on the previous halakhah in the tosefta, which ends by referring to a betrothed woman and her inheritance in the case of her death: "even though her ketubah is in her father's hands, her husband inherits her." However, in [End Page 150] the tosefta there is no indication that the topic of the betrothed woman carries over into the next halakhah. In fact, immediately following the halakhah under discussion, the tosefta continues to deal with a woman who was taken captive after her husband's death (see appendix). Hence it seems reasonable to conclude that the halakhah under discussion deals with the complementary case of a woman taken captive while her husband is alive—after she has married!

It also should be noted that the fact that the tosefta discusses a reduced payment of the ketubah does not help Lieberman, since even according to him, the tosefta is dealing there with a woman who is raped after her betrothal, and as mKet 1.6 rules, the relevant date for establishing virginity for the sake of legal obligations is betrothal and not marriage.22 In addition, Lieberman's suggestion relies entirely on the assumption that the Romans had a custom of taking betrothed virgins captives. But the historical basis for such an assumption is dubious, and the textual sources that supposedly support it appear for the first time only in the amoraic strata.23 Lieberman himself is aware of the difficulties in his solution, stating: "I write all this only out of difficulty and with great reservation and hesitation."24

This halakhah has been recently discussed also by Robert Brody. Despite Lieberman's own reservations and further reservations raised by Brody himself,25 Brody accepts Lieberman's assumption that the Tosefta [End Page 151] is dealing with a betrothed woman. As he writes: "This halakha [sc. tKet 4.5] is attached to halakha 4 and refers specifically to a woman who has come under her husband's authority for certain matters, but has not yet entered the ḥupah."26 He further clarifies Lieberman's underlying assumption by stressing that the condition enjoined by the court is activated upon the betrothal and thus obligates the man to both ransom his captive fiancée and marry her upon her return. On the other hand, the monetary value of the ketubah is determined according to the status of the woman when entering the man's house.27 However, it is not clear what the basis for such an assumption is.

To conclude, Lieberman's and Brody's approach resolves some of the difficulties raised by the obligation to pay only a ketubah of 100. Yet the fundamental difficulties of this approach—the assumption that the husband must ransom his wife only if she may return to be his wife, the distinction between "captives of a kingdom" and "captives of banditry," and reading tKet 4.5 as referring to a betrothed woman—remain. These difficulties call for an alternative explanation of the tosefta's ruling. In the following, we offer another direction based on a comparison with Roman law.

ab hostibus captus et a latronibus captus

As we have seen above, at the center of the Tosefta's discussion on the limits of the husband's duty to ransom his wife lies the unclear distinction [End Page 152] between "captives of a kingdom" and "captives of banditry." This exact same distinction appears explicitly in Roman law. Before we present this distinction, it is necessary to clarify the legal context in which it appears, as well as the legal implications of captivity in Roman legal thought more generally.

In general, according to Roman law, captives lose their Roman citizenship.28 In some cases they are described as free men who have become slaves (Inst. 1.3.4). This change of status has dramatic ramifications regarding the different legal bonds the person had before being taken captive. Thus, if he has children his patria potestas over them is suspended until his return (G. 1.129, Tit.Ulp. 10.4), and so his children may marry without his consent and even acquire property (Dig. 49.15.12.1; G. 1.129); his guardianship (tutela) over women and minors is canceled (G. 1.187); and marriages are dissolved (Dig. 24.2.21; 24.3.56; 49.15.12.4). Such drastic outcomes were partially reversible upon returning from captivity, through the right of postliminium:29 the [End Page 153] right to restore the previous legal status and the legal bonds derived from it.30

The right of postliminium was actually a regulation that aimed to amend some of the difficulties created by the loss of citizenship upon captivity. So, for example, Julius Paulus defines postliminium as follows (On Sabinus, book 16, Dig. 49.15.19):

Postliminium is the right, established by customs and laws between ourselves and free peoples and kings, of recovering from a foreigner property which has been lost and restoring it to its former condition. For what we have lost in war, or even short of war, if we recover it again, we are said to recover by postliminium. And this was introduced by natural justice, so that a person wrongfully detained by foreigners might, when he had returned to his own country, recover his former rights.31

While discussing the application of the postliminium, the Roman jurists also distinguish between different types of captives, based on the circumstances of their capture. Those taken captive by an enemy state are eligible for the right of postliminum upon returning from captivity. On the other hand, those taken captive by bandits have no need for that right since, although physically captive, they are not regarded as legally captive. Ulpian, for example, states the following (Institutes, book 1, Dig. 49.15.24):

The enemy are those on whom the Roman people have publicly declared war, or who themselves [declare war] on the Roman people; [End Page 154] others are termed robbers or bandits. Therefore, a person who is captured by brigands is not the brigands' slave [a latronibus captus est, servus latronum non est], nor does he need postliminium; after capture by the enemy however [ab hostibus autem captus] as, say, by the Germans and the Parthians, he is the slave of the enemy [servus est hostium] and recovers his former status with postliminium.32

An "enemy," according to the Roman law, is a recognized foreign political entity, like the Germans or the Parthians in Ulpian's definition. On the other hand, armed individuals or groups are not considered enemies but rather bandits.33 Thus, as Thomas Grünewald puts it: "The criterion for distinguishing between hostes and latrones or praedones was the capacity of the enemy to make a formal declaration of war, as happened in Rome in the form of the fetial rite and according to the law of the bellum iustum. For the Romans, this could be done only by sovereign states. Conversely, any war that was not preceded by a declaration of war valid under international law was called a latrocinium."34

These statements present a clear distinction between captivity by a foreign state and by pirates or bandits. Foreign political entities recognized by Roman law have the legal capacity to change the legal status of Roman citizens taken captive. The Roman law assigns severe legal ramifications to captivity by an enemy state: as a result of such captivity, Roman citizens lose their liberty and status. Bandits, on the other hand, [End Page 155] are not recognized as a legitimate political entity and therefore captivity by bandits does not have any ramification on the captive's legal status. This is the rationale that underlies Julius Paulus's statement (On Sabinus, book 16, Dig. 49.15.19.2): A piratis aut latronibus capti liberi permanent (Persons captured by pirates and brigands continue to be freemen). It is important to underscore the counterintuitive outcome of this legal situation: it is the recognition of one as a captive that leads to the loss of his (or her) civil status; he is regarded as a slave and is considered legally dead after losing his rights (Dig. 49.15.10). A captive of bandits, on the other hand, remains, legally, unscathed; he is considered a free man, a living bearer of his rights.

Returning to rabbinic law, we wish to suggest that this same distinction made by Roman jurists between the legal status of those captured by an enemy and those captured by bandits lies behind the rabbinic distinction between captives of a kingdom and captives of banditry. The parallels between the Roman law and the baraita are clear-cut and are especially striking when we set the baraita's definitions alongside those of Ulpian:35 "A captive of bandits" is the direct equivalent of the Latin a latronibus captus. "A captive of a kingdom" clearly parallels ab hostibus captus, that is, a person who is a captive of a recognized political entity with which there is state of war.36 This points to familiarity, on the part of at least some [End Page 156] rabbis, with a certain version of the Roman law of their days. As we will see below, this might have significant ramifications for the reassessment of the impact of Roman law on rabbinic halakhah.

Ulpian (Dig. 49.15.24) Baraita (bKet 51a)
ab hostibus autem captus […] servus est hostium inline graphic
After capture by the enemy […] he is the slave of the enemy Captives of a kingdom are regarded as captives
qui a latronibus captus est, servus latronum non est inline graphic
A person who is captured by brigands is not the brigands' slave Captives of bandits are not regarded as captives

It is thus clear that the term "kingdom" (inline graphic) in the baraita (as well as in the tosefta) is to be understood as a legal definition of a legitimate political entity that does not designate specifically the Roman Empire, as common elsewhere in rabbinic literature.37 In light of this, the baraita should be understood as follows:

"Captives of a kingdom are regarded as captives"—since a kingdom, as a recognized political entity, has the legal power to change one's civil status, the captives of a kingdom are regarded as captives, that is, as legally dead, losing their civil status and becoming slaves as the result of captivity.

"Captives of bandits are not regarded as captives"—since bandits do not have the legal power to change one's civil status, those kidnapped by them are not regarded as captives and they do not lose their civil status, but rather remain legally free.

Since the distinction between "captives of a kingdom" and "captives of bandits" in the baraita is clearly founded upon Roman law, it is now possible to take a step further and clarify the halakha in the Tosefta, with which we opened:

If she was taken captive, he does not have to ransom her.

To whom does this apply? To a captive of a kingdom, but with regard to a captive of banditry—he must ransom.

The greatest difficulty was to explain why the husband is exempt from ransoming "a captive of a kingdom," even though the baraita assigns her a clear status of a captive; whereas when the woman is "a captive of banditry," which according to baraita does not render her legally a captive, the husband is not exempt from ransoming. Such a position was deemed paradoxical by all commentators who had engaged with this tosefta, forcing them to resort to various problematic solutions. In contradistinction, we suggest that it is rather this seemingly paradoxical outcome that provides the key to understanding the tosefta, based on the similar outcome in Roman law concerning of captives. [End Page 157]

As we have seen above, according to Roman law the captives of a kingdom are worse off—at least legally—than the captives of banditry, for they are considered civiliter mortui. The same logic seems to undergird the tosefta: a woman who is a captive of a kingdom would be considered legally "dead" and would thus lose the legal status she had prior to her captivity. Therefore, the husband is exempt from the obligation to ransom her. The status of a woman who is a captive of banditry, on the other hand, is not harmed by the captivity. She remains legally "alive" and hence all the husband's obligations to her remain intact and he must ransom her. This reading resolves the apparent contradiction between the tosefta and the baraita, demonstrating that both sources are actually based on the same legal assumptions derived from Roman law.

Turning to Roman law will also help us solve the second severe problem that arises from the tosefta's ruling: the reduced ketubah.

a ketubah of 100

As mentioned above, it is hard to understand why a woman who is held captive is fined by a reduced ketubah even if she had married as a virgin, whose ketubah is 200. Lieberman offered an ingenious solution, suggesting that the case dealt with by the tosefta is that of a woman who married when she was no longer a virgin, since the ketubah of a nonvirgin is 100. However, in order to reach such a result, he was forced to argue that the halakhah in the tosefta refers to a woman who is taken captive after her betrothal but prior to her marriage, a suggestion that, as we have seen, raises several difficulties. We wish to offer another solution, based once again on Roman law. As we note above, one of the results of captivity according to Roman law is the dissolution of marriage.38 This is clearly formulated by Paulus (ad edictum, book 35; Dig. 24.2.1): [End Page 158]

Marriage is dissolved by the divorce, death, captivity, or other kind of slavery of either of the parties.39

Unlike other legal bonds, which are canceled or suspended due to captivity but are reinstated upon the return of the captive on the basis of the right of postliminium, marriage is not automatically reinstated unless the couple explicitly wishes it, as Pomponius, for example, writes (On sabinus, book 3, Dig. 49.15.14.1):

A husband does not get his wife back by postliminium as a father does his son; it is only by consent that the marriage is renewed.40

We see here that, according to Roman law, when the captive returns the dissolved marriage could only be renewed by the consent of both sides. This marriage is not considered a direct continuation of the original marriage but rather a second marriage (to the same partner). The question of how the marriage is to be renewed—automatically or by a formal procedure—is a separate question (and as we will see, it is decided differently in Roman and Jewish sources). However, the principle that captivity dissolves marriage, so that the marriage upon return from captivity is considered a second marriage, can shed light on the tosefta's halakhah: "If he wishes to uphold he may uphold, and if not—he shall let her go and he shall give a ketubah of 100."

This halakhah deals with what happens to the marriage after the husband has ransomed his wife. Like any husband, the ransoming husband too may divorce his wife, and in that case he must pay her a ketubah of only 100, as to a nonvirgin.41 We wish to suggest that the reduction of the [End Page 159] ketubah from 200 to 100 is indeed based on the assumption that the marriage is with a nonvirgin. Yet this is not because the woman was taken captive prior to her marriage, as suggested by Lieberman, but rather because the woman's original marriage was dissolved or suspended due to her captivity,42 at least from a monetary perspective.43 Upon returning from captivity, the marriage is reinstated, constituting de iure a second marriage.44 The woman enters this second marriage—to the same husband—no longer a virgin, and hence she is entitled to a ketubah of only 100. It is important to stress once again that the assumption that the woman enters the second marriage as a nonvirgin is not founded on the premise that she had intercourse in captivity. Her first marriage to her husband provides sufficient ground for this.

In fact, the ruling here is similar to the ruling in tKet 1.3, where several cases are discussed in which a man had (ostensibly) married while he had no legal capacity to marry but gained his capacity later, such as a deaf-mute man who married a woman of sound senses and he later became of sound senses; an imbecile who married a woman of sound senses and he later became sane; a gentile who became a proselyte; and a slave who was manumitted. In all of these cases the marriage that the law recognizes—or at least the marriage that necessitates a ketubah45—begins only when the [End Page 160] problem of the husband's legal capacity has been resolved. At that point the woman is no longer a virgin, even though she was a virgin at the original time of marriage. Therefore, such a woman would only be entitled to a ketubah of 100. Of course, the woman is not suspected to have had intercourse with a stranger or to have lost her virginity in any other way.46 Rather, the change from virgin to nonvirgin is a result of her original marriage to her husband who lacked legal capacity at the time. Similarly, we suggest that also in the case of a woman captive returning to her husband, the marriage that dictates the value of the ketubah begins only upon her return. The woman enters this marriage as a nonvirgin, due to her prior marriage to her husband, and hence her ketubah is 100.47

It is important to note, though, that unlike the Roman law, according to which marriage is not renewed automatically but only as a result of consent from both sides (since the right of postliminium does not apply to marriage), it would seem that the halakhah in the Tosefta does not entail a second formal procedure of marriage. It is more probable to assume that once the woman returned from captivity, the couple were considered to have remarried. In the similar case of a deaf-mute man who later became of sound senses, the imbecile who became sane, etc., the marriage that necessitates a ketubah of 100 is established constructively, according to a legal fiction, and does not require an additional marriage ceremony. Therefore, it makes sense to assume that also in the case of the captive wife, the marriage is reassumed automatically, when the husband and his wife return to live de facto as a married couple.48 [End Page 161]

rereading the tosefta

So far we have analyzed the two parts of the tosefta (A+B and C) separately. Yet how do they fit with one another? A natural reading would suggest that part C directly continues part B:

  1. B. This applies to a captive of a kingdom, but with regard to a captive of banditry—he must ransom.

  2. C. If he wishes to uphold he may uphold, and if not—he shall let her go and he shall give a ketubah of 100 dinar.

From a philological point of view such a continuous reading indeed flows smoothly since the opening sentence of part C beginning with "if he wishes to uphold" accords well grammatically with the end of B: "he must ransom." It would thus be naturally assumed that the woman to whom part C refers is the same woman whom the husband was required to ransom in part B. In other words, the woman who receives the reduced ketubah is the captive of banditry. However, if one accepts the argument about the legal logic that stands behind the distinction between captive of a kingdom and captive of banditry, this supposedly straightforward reading is no longer sustainable. For, to recall, at the basis of the definition of a captive of banditry is the Roman jurists' understanding that she is not legally captive and thus she does not suffer from the legal implications of captivity and must be ransomed by her husband in any case (even without the ransom clause). Thus the marriage of the captive of banditry is not undermined by captivity and hence there is no ground to damage the woman's monetary rights in the original ketubah. Consequently, regardless of the reasons for the reduced ketubah, reading part C as a direct continuation of part B makes little sense.

How then are we to explain the relation between parts A and B, and part C? One possible reading would be to view B as a later insertion intended to resolve the contradiction between the Mishnah and the Tosefta. Once removed, the hypothetical original version of the tosefta would read as follows:

  1. A. If she was taken captive he does not have to ransom her

  2. C. If he wishes to uphold he may uphold, and if not—he shall let her go and he shall give a ketubah of 100. [End Page 162]

According to this reading, part C precedes the distinction between the captive of a kingdom and captive of banditry, assuming simply that captivity affects the legal status of the woman and dissolves marriage. The husband is not obligated to ransom his wife, yet if he indeed ransoms her (or she is able to return in any other way), part C applies.

Although this reading is possible, it is not smooth. Whereas part A states that the woman does not have to be ransomed, part C seems to presuppose that the woman has somehow returned from captivity. This creates a gap that is both philologically and conceptually problematic.

In light of this, we suggest that the tosefta be read as comprising two parts, each responding independently to the mishnah's statement: "If she is taken captive, he must ransom her." The second part is thus not to be read as a direct continuation of the first part:

  1. A. [If she was taken captive he must ransom her]—If she was taken captive he does not have to ransom her.

  2. B. This applies to a captive of a kingdom, but with regards to a captive of banditry—he must ransom.

  3. C. [If she was taken captive he must ransom her]—If he wishes to uphold he may uphold, and if not—he shall let her go and he shall give a ketubah of 100 dinar.49

According to this reading, the tosefta consists of two separate and independent responses to the mishnah. The first response includes the ruling contradicting the mishnah (A). This ruling is followed by a statement (B), most probably of a later layer, which introduces a distinction resolving this tension. The second part (C) discusses the husband's duty to his wife who has come back from captivity.50

This suggested reading also accords well with the two separate obligations of the ransom-clause in the mishnah, which then became part of the condition of the court: (1) the obligation to ransom his wife, and (2) the obligation to take her back as his wife upon her return, or, according to our suggestion, to de iure remarry her. Thus, according to this reading, [End Page 163] part A (and B) responds to the obligation to ransom the captive and part C responds to the obligation to take her back.

Whether one prefers one reading over the other is inconsequential for our purposes, as both readings assume that the marriage is indeed damaged by captivity. Moreover, both suggested readings imply that the distinction between captives of a kingdom and captives of banditry is novel and of a later layer, while the earlier layer simply assumes that marriage is affected by captivity.

jewish citizenship

We have demonstrated above how the difficulties found in the tosefta could be neatly resolved by assuming that its rulings were shaped under the influence of the Roman law concerning the impact of captivity on the legal status of the captive.

At face value, this might appear to be yet another case study, similar to others discussed by scholars, where the rabbis borrow certain concrete legal arrangements from Roman jurists.51 Such case studies rarely demonstrate a deep and significant influence of Roman law on tannaitic halakhah. As Ishai Rosen-Zvi has aptly noted in a recent paper: "Scholars have [End Page 164] been hard pressed to find explicit traces of Roman law in the Mishnah or in rabbinic literature in general […] the explicatory power of the Roman model, as revealed in existing scholarship, is somewhat limited."52 However, we argue that the case study that is the focus of this essay is different in quality from such previous examples, reaching far beyond a mere superficial borrowing. As we now turn to show, it reflects a surprising internalization of a distinct Roman jurisprudential principle, one generally thought to be alien to tannaitic thinking, which is applied to Jewish legal considerations, at the very least concerning the status of captives.

Most scholars seem to assume that, in contradistinction to Roman law, captivity does not affect the marital status of a Jewish woman.53 In Jewish law marriage is supposedly terminated only upon divorce or death. However, as we have seen, the tosefta clearly reflects a different legal paradigm, according to which Jewish marital status is dramatically affected by captivity. We claim that this apparent anomaly is the direct result of incorporating a basic principle of Roman law, a principle that organizes the concept of citizenship.

In the Roman legal system, citizenship is grounded and manifested by subjugation to Roman law; the right to be fully subject to Roman law is the right of citizens and is what differentiates them from noncitizens.54 [End Page 165] Citizenship may be acquired, bringing the new citizen under the aegis of the law; citizenship may also be lost, and in this case the law would cease to protect the former citizen. Under the latter condition, Roman law is no longer applicable to the person whose status has changed, resulting in the cancelation (or at least suspension) of legal bonds. This principle is what, according to the Roman model, enables the dissolution of the marriage of a captive.

It would seem that this is the exact legal framework in which the Tosefta operates. The legal bond of Jewish marriage is dissolved (or at least suspended) upon captivity, as a result of the change in civil status. In an analogy to the Roman parallel, Jewish law is no longer fully applicable to the captive woman. In other words, she is no longer a Jewish "citizen," that is, a full subject of Jewish law.55

The idea that the Roman concept of citizenship, with its strong emphasis on jurisdiction, impacted tannaitic halakhah has recently been suggested by Yair Furstenberg. He rightly claims that rulings concerning the status of manumitted slaves and newborns at times "reveal the rabbinic awareness of the fundamental Roman conception of citizenship as based on membership in a legal community."56 For both the Romans and the rabbis the boundaries of communities were determined by subjection to the authority of the law. According to this concept of citizenship, "participating in the law and recognition by the law are the foundations of communal belonging."57 However, although Furstenberg recognized this structural similarity between Jewish and Roman law, he nevertheless [End Page 166] views the main impact of Roman law as providing the rabbis merely a framework for better organizing and systematizing existing Jewish norms, without changing them from within.58 In contradistinction, we argue that, at least with regard to a married woman taken captive, the Roman law induced a paradigmatic change in the rabbinic norm itself, pertaining to the principles of applicability of Jewish law to its subjects.

It is usually thought that Jewish law applies to the ethnic Jew under all circumstances, almost like a second skin. A common axiom among scholars of rabbinic literature is that whereas it is possible to join the community by way of conversion or manumission, it is not possible to leave it. This common opinion has recently been succinctly formulated by Robert Brody: "It seems more likely that for classical rabbinic Judaism, as for other monotheistic religions, the boundary enclosing the religious collective was conceived to be permeable in one direction only: outsiders could join, but insiders—even those who had joined from the outside—could never leave."59 This is indeed an accurate account of many of the sources in rabbinic literature. Yet, according to our analysis, in the case of a captive woman, an ethnic Jew could potentially lose (if only temporarily) her Jewish citizenship and exit the realm of Jewish law.60 [End Page 167]

The distinctiveness of this outcome in the tannaitic conception of marriage could be best emphasized by the analogy to the case in which a man of sound senses marries a woman of sound senses and then becomes deaf mute or imbecile. Similar to the case of the captive woman, such a person's legal status is downgraded. However, while this downgrading changes his legal capacity, as there are now certain legal actions he can no longer perform, it does not exclude him from the realm of Jewish law. According to mYeb 14.1, in such a case the marriage to which the parties entered when both were still of sound senses is not affected by the change in legal capacity. In fact, the new deaf-mute or imbecile is now deprived of the ability to untie the marital connection and divorce his wife, and thus the marriage remains intact indefinitely (or at least until another change in status occurs). On the other hand, in the case of the captive woman the outcome is the inverse, as the marital connection is dissolved automatically, regardless of the will of the parties. Put differently, the deaf-mute or the imbecile remains within the confines of Jewish law despite status diminution, whereas the woman taken captive loses her legal standing altogether.61

This analysis may have further implications, not only to marriage but also to additional legal bonds of Jews taken captive. Indeed, the tosefta examined in this essay supports this analysis only with regard to marriage. However, the baraita discussed above introduces the distinction between the two types of captives in a generalized manner, formulated in the masculine (which should be regarded as gender-neutral): "Captives of a kingdom are regarded as captives; captives of bandits are not regarded as captives." Unlike the tosefta, this baraita does not focus on the captive woman or on marriage but rather on the general definition and status of a "captive." This would seem to reflect a fuller adoption of the Roman law of captivity and the model of citizenship underlying it.62 [End Page 168]

We opened our discussion with the distinction between captives of banditry and captives of a kingdom in the Tosefta and have demonstrated that it is based on a Roman juridical concept. One might have argued, however, that this distinction is merely introduced in order to solve a contradiction between the rulings in the Tosefta and in the Mishnah concerning the duty of the husband to ransom his wife. That is, a Roman concept was grafted ad hoc onto the rabbinic legal system without its inherent legal and political presumptions. However, the distinction between captives in the baraita, which is not motivated by the need to solve any problem, clearly displays an independent adoption of the same Roman legal concepts together with their underlying rationale. Furthermore, the ruling in the Tosefta regarding the reduced ketubah—which neither is dependent on the distinction between captives, nor serves the purpose of solving any problem—provides an independent indication of the internalization of Roman juridical principles regarding the impact of captivity on the status of the captive. These two independent cases support the conclusion that the distinction between captives in the Tosefta should not be seen as a superficial borrowing of Roman norms. Rather all three cases point to the deep and thorough engagement by some rabbis with Roman models of citizenship and captivity, which seems to have shaped their very idea of Jewish belonging.

conclusion

In this essay, we have argued that the distinction between "captive of a kingdom" and "captive of banditry" introduced in the Tosefta as a solution to the contradiction between its ruling and that of the Mishnah is directly based on a Roman legal definition, indicating that at least some tannaitic circles were familiar with Roman law. Moreover, it is only according to a Roman legal rationale—which views captivity as directly affecting the legal bonds of the captive—that the said contradiction is resolved. Furthermore, the second ruling in the Tosefta, regarding the reduced ketubah, is also founded on the same legal premise, this time [End Page 169] implementing the idea that captivity dissolves (or suspends) the marital bond.

The impact of Roman law on these rulings is carried out by the legal mechanism of Roman citizenship, in which citizenship manifests itself in the applicability of the law to the citizen. Thus the addressee of these rabbinic rulings is modeled as a citizen subject to Jewish law, just as a Roman citizen is a subject of Roman law. This implies that "Jewish citizenship" may be lost and regained, by exiting and then reentering the realm of the law, as in the case of captivity. Thus the case study discussed in this essay demonstrates that legal principles of Roman law not only had an impact upon rabbinic norms and legal reasoning but also permeated and reshaped the very foundations of rabbinic jurisprudence, including, most strikingly, the fundamental relation between Jewish law and its subjects.

Finally, the degree of Romanness displayed in the distinction between captives of a kingdom and captives of banditry adopted by both the tosefta and the baraita has not only legal but also political dimensions to it. As noted above, this distinction reflects a concrete Roman political perspective, which differentiates between political entities recognized as legitimate by the Roman state and those that are not. However, such a perspective would seem rather alien to what we usually find in rabbinic literature. To recall, the term "kingdom" in our context is a legal category referring to legitimate political entities. Unlike other occurrences of the term in rabbinic literature, "kingdom" here does not refer to the Roman Empire but rather to other politically recognized "kingdoms." Differentiating political entities based on the degree of their legitimization is inherent to the logic of Roman law but is senseless from the point of view of a Jewish ethnocentric law, which usually would be satisfied with lumping all agents outside of the ethnic or religious core group into one undifferentiated category of foreigners, or gentiles.63 By taking up the distinction between different captors based on the degree of their political legitimization, some rabbis would seem to have adopted not only Roman law but also a Roman political perspective. [End Page 170]

Orit Malka

Orit Malka is a doctoral candidate at the Zvi Meitar Center for Advanced Legal Studies, law faculty, Tel Aviv University.

Yakir Paz

Yakir Paz is a lecturer in the departments of Talmud and Classics at the Hebrew University of Jerusalem.

Appendix. tractate ketubot chapter 4: mishnah vs. tosefta64

No description available
Click for larger view
View full resolution

Footnotes

We wish to thank our colleagues and friends for their helpful comments: Ishay Rosen-Zvi, Yair Furstenberg, Maren Niehoff, Christine Hayes, Youval Rotman, Simcha Gross, and Lynn Kaye, as well as the anonymous readers. We would also like to thank the Niedersachsen-Israeli Research Program for their support of this research.

1. On captives and ransoming in rabbinic literature, see Youval Rotman, "Captives and Redeeming Captives: The Law and the Community," in Judaea-Palaestina, Babylon and Rome: Jews in Antiquity, ed. B. Isaac and Y. Shahar (Tübingen, 2012), 227–47; Catherine Hezser, Jewish Slavery in Antiquity (Oxford, 2005), 221–46; Sagit Mor, "The Status of Jewish Captives upon Their Return to the Community in Rabbinic Literature" (Hebrew), Mada'e ha-yahadut 42 (2003–4): 107–18; Mor, "All's Well That Ends Well? The Return from Captivity in Talmudic Literature," in Captives, ed. M. Mack (Hebrew; Jerusalem, 2014), 61–82; Mor, "Hilkhot Shvuya: The Change of Values in Jewish Culture between the Second Temple and Talmudic Period" (Hebrew), Jewish Law Annual 23 (2005): 193–224; Mor, "Hilkhot shvuya ba-korpusim ha-tanaiyim ke-even boḥan le-sulam 'arakhim be-'olamam shel ḥakhamim" (M.A. thesis, Hebrew University, 1999) and the literature cited there.

2. Unless noted otherwise, all citations of rabbinic texts in this essay follow the database of Ma'agarim, The Historical Dictionary Project (http://maagarim.hebrew-academy.org.il/Pages/PMain.aspx), without the editorial signs.

3. Trans. after Herbert D. Danby, The Mishnah (Oxford, 1933), modified.

4. On the ransom clause, see Mordechai A. Friedman, Jewish Marriage in Palestine: A Cairo Geniza Study (Tel Aviv, 1980), 347–56; Friedman, "The Ransom Clause of the Jewish Marriage Contract," Gratz College Anniversary Volume, ed. I. D. Passow and S. T. Lachs (Philadelphia, 1971), 63–71; Yitshak D. Gilat, "If You Are Taken Captive I Will Ransom You and Restore You as My Wife" (Hebrew), Bar Ilan 13 (1976): 58–72; Louis M. Epstein, Jewish Marriage Contract: A Study in the Status of the Woman in Jewish Law (New York, 1927), 164–68. A similar formulation of the ransom clause is found already in Babatha's ketubah (P.Yadin 10) from the second century c.e.:

Text and translation after The Documents from the Bar Kokhba Period in the Cave of Letters, vol. 3, ed. Y. Yadin et al. (Jerusalem, 2002), 126–27; and see commentary on 137–38. As noted by Friedman (Jewish Marriage, 348), the ransom clause is likely also documented in two ketubot from Wadi Murabba'at: Mur 20 and Mur 21 (for Mur 20 cf. Reuven Yaron, "The Murabba'at Documents," Journal of Jewish Studies 11 [1960], 160). For editions, see Les Grottes de Murabba'at, DJD 2, ed. P. Benoit, J. T. Milik and R. De Vaux (Oxford, 1961), 109–17; Ada Yardeni, Textbook of Aramaic, Hebrew and Nabataean Documentary Texts from the Judean Desert and Related Material, 2 vols. (Hebrew; Jerusalem, 2000), 1:119–21.

5. The same obligation is also mentioned in mKet 4.4 and tKet 4.2, which state that the husband "is liable for her maintenance, for her ransom, and for her burial" inline graphic.

6. Cf. Saul Lieberman, Tosefta: The Order of Nashim (Hebrew; Newark, N.J., 1967), 66–67. For a slightly different version, see Robert Brody, Mishnah and Tosefta Ketubbot (Hebrew; Jerusalem, 2015), 123.

7. The full version of the opening sentence appears in several important medieval commentators (e.g., Ramban, Ritva, Ran, etc.) and in the editio princeps (Vienna, 1521). However, it is missing in MS. Vienna whereas the version in MS. Erfurt is: inline graphic (If she was taken captive he must ransom her), which seems to be an error based on the version of the Mishnah. For a comprehensive discussion of the versions, see Saul Lieberman, Tosefta ki-fshuta: A Long Commentary to the Tosefta, vol. 6, The Order of Nashim (Hebrew; New York, 1967), 236, and Brody, Mishnah and Tosefta Ketubbot, 123.

8. inline graphic] MS. Erfurt: inline graphic (this version is preferred by Brody in his edition). In the very fragmentary manuscript from the Genizah (T-S E2.141, 3r, l.19): inline graphic.

9. inline graphic] MS. Erfurt: inline graphic (and if not, he shall give a ketubah of 100). A similar version seems to also be reflected in the Genizah manuscript (l. 20: inline graphic). This version is preferred by Brody in his edition.

10. The ransom clause seems to reflect a legal context in which the husband is not obligated to ransom his wife, and therefore it is necessary to explicitly add this clause to the ketubah. On the ancient halakhah according to which if the wife was raped, the husband (even a nonpriest) had to divorce her, see Friedman, Jewish Marriage, 352–54.

11. Lieberman (Tosefta ki-fshuta, 237) has already highlighted the direct connection between this halakhah and the mishnah. Brody has suggested another interpretation according to which there is no connection between this halakhah and the mishnah; for his approach, see below.

12. Cited according to MS. St. Petersburg, Evr. I, 187, which is also the base text of tractate Ketubot in Ma'agarim.

13. inline graphic MS. Munich 95: inline graphic (hostages of banditry); MS. Vatican 130: inline graphic (hostages of bandits).

14. This is the basic assumption throughout the sugya. It is established already in the opening discussion in the statement by Shmuel's father (bKet 51b): "a married woman who was raped is forbidden to her husband" (inline graphic). And see further the explanations for this position suggested later on by Abaye and Raba (bKet 52a). See also Mor, "Hilkhot shvuya ba-korpusim," 90–100.

15. This is the basic assumption of many of the medieval commentators, such as Ramban, Ritva, Magid Mishne, and others. For an overview of these commentators, see Lieberman, Tosefta ki-fshuta, 236. This seems to also have been the assumption of all modern scholars. See, e.g., Shmuel Safrai, "Two Notes on the Ketubba of Babatha" (Hebrew), Tarbiz 65 (1996): 717–19; Friedman, Jewish Marriage, 351–55; Safrai, "Babatha's Ketubba: Preliminary Observations," Israel Exploration Journal 46 (1996): 71–72; Gilat, "If You Are Taken Captive," 66–68; Gerald J. Blidstein, "The Personal Status of Captive and Apostate Women in the Middle Ages" (Hebrew), Jewish Law Annual 3/4 (1977): 35–116; and the articles of Sagit Mor cited above, as well as Lieberman and Brody to be discussed below.

16. Lieberman, Tosefta ki-fshuta, 237, with references to the medieval commentators.

17. On the identification of Ben Netzer with Odaenathus, see Lieberman, Tosefta ki-fshuta, Nashim, 237; Lieberman, "Palestine in the Third and Fourth Centuries," JQR 37 (1946–47): 34–35; Udo Hartmann, Das palmyrenische Teilreich (Stuttgart, 2001), 41–42 (with comprehensive bibliography). On Odaenathus and his struggles against the Romans and Sasanians, see Hartmann, 65–161; Andrew M. Smith II, Roman Palmyra: Identity, Community, and State Formation (New York, 2013), 175–82. On the rabbinic hostility toward Palmyra, see Yakir Paz, "'Meishan Is Dead': On the Historical Contexts of the Bavli's Representation of the Jews in Southern Babylonia," in The Aggada of the Babylonian Talmud and Its Cultural World, ed. J. Rubenstein and G. Herman (Providence, R.I., 2018), 78–82. For a rather confused reading of bKet 51b, see Alan Appelbaum, "The Rabbis and Palmyra: A Case Study on (Mis)Reading Rabbinics for Historical Purposes," JQR 101.4 (2011): 530–32. Odaenathus's sacking of the city of Nehardea (cf. Benjamin M. Lewin, Igeret Rav Sherira Gaon [Haifa, 1921], 82) might be the historical background for the famous story about the captivity of the daughters of Shmuel in yKet 2.6 (26c) and bKet 23a. On this story, see Vered Noam, "A Story That Was Captivated: The Evolvement of a Tale between Eretz Yisrael and Babylon" (Hebrew), Jerusalem Studies in Hebrew Literature 19 (2002–3): 9–21.

18. Note that the Bavli's sugya does not necessarily connect the question of sexual transgression with the discussion of the baraita vis-à-vis the tosefta. Therefore, it is possible that Rashi's interpretation is only the result of the late edited version of the sugya, and that originally the context through which the Babylonian amoraim understood the tosefta and the baraita was different. The conceptual possibility of "kingdom" that is at the same time "banditry" is found also in the Palestinian tradition transmitted in the name of R. Yudan Nesi'a, as a clarification of mKet2.9 (yKet 2.9 [26d] and a parallel in yGit 3.4 [45a]):

inline graphic

"If a city was overcome by a besieging troop all women therein of priestly stock become ineligible": R. Zeira, R. Ba b. Zavda, R. Yitzhak b. Hakula in the name of R. Yudan Nesi'a: As long as it is a besieging troop of that kingdom [i.e., Rome], but a besieging troop of another kingdom is like bandits.

It would seem that R. Yudan is aware of some version of the distinction between captors which appears in tKet 4.5 and in the baraita.

19. As a response to this problem, Rava in the Bavli's sugya offers a distinction according to which: inline graphic (wherever captivity causes the woman to be forbidden [to her husband] it is his duty to ransom her, but where some other circumstance causes her to be forbidden to him it is not his duty to ransom her). However, this is clearly a very forced solution.

20. Lieberman, Tosefta ki-fshuta, 237 (our translation). Gilat, "If You Are Taken Captive," 67–68, also regards the historical context of the tannaitic period as the reason for these distinctions. According to Gilat: "As a result of the extreme frequency of captivity and the continuous obligations it laid upon the husbands, the sages expropriated the obligation to ransom the wife in the case of captives of a kingdom, who were common and widespread, based on a midrash of the language of 'and I shall take you back as my wife' and on the possibility that she willingly had sexual intercourse" (our translation).

21. Lieberman, Tosefta ki-fshuta, 236.

22. Lieberman (Tosefta ki-fshuta, 238) is aware of this difficulty and examines several solutions to it: according to one, the tosefta follows a different version of this ruling according to which the betrothed has no ketubah if the man had not written it to her; according to another, such a woman has a ketubah but no ketubah conditions. However, Lieberman himself is not content with either explanation.

23. For a historical survey of rape as part of Roman warfare and its possible use during the Great Revolt, see now Caryn A. Reeder, "Wartime Rape, the Romans, and the First Jewish Revolt," Journal for the Study of Judaism 48 (2017): 1–23. For an analysis of rabbinic accounts of rape by the Romans, see Julia Watts Belser, "Sex in the Shadow of Rome: Sexual Violence and Theological Lament in Talmudic Disaster Tales," Journal of Feminist Studies in Religion 30 (2014): 5–24. Vered Noam ("The Seventeenth of Elul in Megillat Ta'anit" [Hebrew], Zion 59 [1994]: 433–44) discusses an incident of rape mentioned in the Megilat Ta'anit and argues convincingly that a connection between this incident and the ius primae noctis is a later addition.

24. Lieberman, Tosefta ki-fshuta, 238.

25. Brody differs from Lieberman's explanation of the distinction between captives of kingdom and captives of banditry, since, as he writes (Mishnah and Tosefta Ketubbot, 125): "it is unclear whether there exists in the tannaitic sources a halakhah that displays a concern that a married woman would willingly have intercourse with her captors" (our translation).

26. This assumption has significant ramifications on Brody's mapping of the halakhot in the fourth chapter of the Tosefta vis-à-vis the fourth chapter in the Mishnah (Mishnah and Tosefta Ketubbot, 113–31). Brody places mKet 4.5, which deals with the transition of the husband's authority to the father, alongside tKet 4.4, which deals with the inheritance of the betrothed women. To this he attaches also the following halakhah (tKet 4.5), which deals with the ransoming of the captive wife. In this way, Brody disconnects tKet 4.5 from its natural parallel in mKet 4.8–9, which also deals with ransoming of a captive wife, despite the clear linguistic connection between these mishnayot and the halakhah under discussion. He further concludes that the halakhot dealing with the conditions of the ketubah are actually an ancient unit that is discussed mainly in the Mishnah with only rare references to it in the Tosefta (133). We believe that such a reading is not necessary; actually, there is a straightforward way to read the chapter in the Tosefta as clearly paralleling the Mishnah and directly commenting on it, as we suggest in the appendix to this essay.

27. Mishnah and Tosefta Ketubbot, 125: "I believe that according to this tanna the husband must marry her because of the condition: 'If you are taken captive I will redeem you and take you again as my wife' (mKet 4.8). But the obligation of the ketubah does not apply to him until he lets her into his house, and at that moment she is already considered a non-virgin." This explanation somewhat contradicts Brody's own analysis, which disconnects the conditions enjoined by the court mentioned in mKet 4.8 and tKet 4.5 (see above).

28. On the legal status of the captive according to Roman law, see William Warwick Buckland, The Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian (1908; repr. Cambridge, 1970), 291–317; Ernst Levy, "Captivus Redemptus," Classical Philology 38 (1943): 159–76; Alan Watson, Roman Slave Law (Baltimore, 1987); Watson, The Law of Persons in the Later Roman Republic (Aalen, 1984), 23–24; Jason Wickham, "The Enslavement of War Captives by the Romans to 146 BC" (Ph.D. diss., University of Liverpool, 2014). This topic has generally received limited scholarly attention, and Wickham suggests that it is due to the limited interest of Roman jurists in this part of the law. Maybe this has to do with the classification of laws regarding the enslavement through captivity as part of the law of the nations, ius gentium, and not part of the civil law, ius civile. On this, see Wickham's survey, 14–16, and Buckland, The Roman Law of Slavery, 1.

29. The Roman legal institution of postliminum is, as Alan Watson aptly put it, "perhaps the subtlest part of Roman legal science" ("Thinking Property at Rome," Chicago-Kent Law Review 68 [1993]: 1361; repr. in Slavery and the Law, ed. P. Finkelman [Madison, Wisc., 1997], 424). As a result the literature on the topic is vast, including several monographs. See, e.g., Luigi Amirante, Captivitas e Postliminium (Naples, 1950); Amirante, Prigionia di guerra. Riscatto e postliminium: Lezioni, 2 vols. (Naples, 1969–70); Luigi Sertorio, La prigionia di guerra e il diritto di postliminio (Rome, 1971); Maria G. Cursi, La struttura del "postliminium": Nella repubblica e nel principato (Naples, 1996); Youval Rotman, Byzantine Slavery and the Mediterranean World (Cambridge, Mass., 2009), 29–30; Levy, "Captivus Redemptus"; Buckland, Roman Law of Slavery, 291–317. For a historical context, see also Wickham, The Enslavement of War Captives, 54–73.

30. A citizen returns to his status as a citizen and owner of property; a slave returns to his status as a slave. Cf. Buckland, Roman Law of Slavery, 292: "The person captured may have been before his capture a slave or a freeman: if he return he is restored to his old position by postliminium." However, from a certain point in the second half of the first century c.e. the Roman law changes, and the prerogative for determining the status of the redeemed captive involves the redeemer: he becomes the owner of the captive he has redeemed, Dig. 49.15.12.9 as demonstrated at length by Levy, Captivus Redemptus.

31. Postliminium est ius amissae rei recipiendae ab extraneo et in statum pristinum restituendae inter nos ac liberos populos regesque moribus legibus constitutum. nam quod bello amissimus aut etiam citra bellum, hoc si rursus recipiamus, dicimur postliminio recipere. idque naturali aequitate introductum est, ut qui per iniuriam ab extraneis detinebatur, is, ubi in fines suos redisset, pristinum ius suum reciperet. All translations from the Digest here and throughout the essay are based on Watson, ed., The Digest of Justinian, 4 vols. (Philadelphia, 1985).

32. Hostes sunt, quibus bellum publice populus romanus decrevit vel ipse populo romano: ceteri latrunculi vel praedones appellantur. et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est: ab hostibus autem captus, ut puta a germanis et parthis, et servus est hostium et postliminio statum pristinum recuperat.

33. Cf. Dig. 50.16.118. See Cursi, La struttura del "postliminium," 136–45. On bandits in Roman law, see Brent D. Shaw, "Bandits in the Roman Empire," Past & Present 105 (1984): 3–52; Thomas Grünewald, Bandits in the Roman Empire: Myth and Reality (London, 2004); Werner Rieß, "The Roman Bandit (Latro) as Criminal and Outsider," in The Oxford Handbook of Social Relations in the Roman World, ed. M. Peachin (Oxford, 2011), 693–714, esp. 694–95: "given the relatively narrow definitions, however, which Roman jurists attributed to the term, the question arises as to how and why this well-defined term came to designate from quite early on, not only highwaymen and bandits, but also guerrilla fighters, political opponents, usurpers and barbarians."

34. Grünewald, Bandits in the Roman Empire, 40. Cf. Shaw, "Bandits," 6: "The basic form of legitimate or statist violence defined by the Roman state's legal apparatus was that of warfare. The legal authorities gave formal recognition to the type of organized violence conducted by the Roman state itself, or directed against it by other states, by labelling it 'war' or bellum."

35. It is worth noting that Ulpian was active at the same time as the rabbis who formulated the baraita. His main works were composed between 213 and 217 c.e.; see Tony Honore', Ulpian: Pioneer of Human Rights (2nd ed.; Oxford, 2005), 158–205. Ulpian's legal works were also heavily influenced by the consitiutio antoniniana (p. 14).

36. According to Pomponius (Dig. 49.15.5.2) there is no need for an active situation of war in order to become a captive; Buckland, Roman Law of Slavery, 292: "persons who are found in a State with which Rome has no agreed friendly relations are liable to be made captives, though there is no declared war." See also Levy, "Captivus Redemptus," 159.

37. In fact, as we will discuss later, the term "kingdom" in our context probably excludes the Roman Empire, referring rather to other "kingdoms." This is in contradistinction to the reading of R. Yudan Nesi'a (see n. 18, above).

38. See Susan Treggiari, Roman Marriage: Iusti coniuges from the Time of Cicero to the Time of Ulpian (Oxford, 1993), 435–36, and more extensively Alan Watson, "Captivitas and matrimonium," in Watson, Studies in Roman Private Law (London, 1991), 37–53. Basically, marriage is dissolved immediately upon captivity. However, at a certain point the law was changed so that five years were required to pass before a second marriage was permitted. See Watson, Studies, 256, on Dig. 24.2.6; 48.5.14.7. It is possible that this change reflects a growing disapproval with the radical consequences of dissolving marriage as an immediate result of captivity. See, e.g., Bruce W. Frier and Thomas A. McGinn, A Case Book on Roman Family Law (New York, 2003), 156–57: "Very probably, however, Julian's original text has been rewritten by the compilers of Justinian's Digest, since we happen to know that Justinian enacted this rule himself (Novellae 22.7; A.D. 535–536). In all likelihood, the classical jurists held that the other spouse could remarry more or less immediately after a capture."

39. Dirimitur matrimonium divortio morte captivitate vel alia contingente servitute utrius eorum. Cf. Dig. 49.15.12.4.

40. Non ut pater filium, ita uxorem maritus iure postliminii recipit: sed consensu redintegratur matrimonium. Cf. Dig. 49.15.8. On marriage and postliminium, see Percy E. Corbett, Roman Marriage (Oxford, 1930), 214–15; Jane F. Gardner, Women in Roman Law and Society (Indianapolis, 1986), 88; Philip L. Reynolds, Marriage in the Western Church: The Christianization of Marriage during the Patristic and Early Medieval Periods (Leiden, 1994), 44–45; Watson, "Captivitas and matrimonium"; Amirante, Captivitas e postliminium, 149–57; Sertorio, La prigionia di guerra, 60–64; Buckland, Roman Law of Slavery, 296–98. It should be noted that the distinction within Roman law between marriage and other legal bonds that could be regained through postliminium is not sufficiently clear.

41. There is no deviation here from the usual reasons for divorce. The purpose is only to describe a situation in which the husband has the legal capacity to divorce. For further uses of the expression inline graphic (If he wishes to uphold he may uphold, and if not—he shall let her go) in this meaning see mYeb 14.1; tYeb 13.7–8, and the discussion below.

42. Unlike the Roman jurists, the rabbis seem to have thought of postliminium as referring also to marriage, so that upon her return (crossing of the limes) the woman's marriage is automatically renewed just like the ownership of property (see below). Yet just like the case of property and the regulation of postliminum in Roman law, the renewal of the marriage is not retroactive but only prospective, future facing; therefore, the condition of the renewed marriage does not revert to the original state but rather creates a new state—hence the second marriage.

43. In light of the dearth of sources, it is impossible to ascertain exactly what such a suspension or dissolution entails. At the very least the monetary obligations of the husband are dissolved. However, at this point we cannot determine whether or not the suspension of marital status pertains also to sexual prohibitions.

44. The formulation of the ransom clause mentioned in mKet 4.8 might also reflect the Roman law on this issue. Notably, the ransom clause includes two obligations of the husband toward his wife: 1. To ransom her; 2. To take her back as wife (unless he is a priest). These two obligations could be viewed as distinct and independent. Thus the need to explicitly obligate the husband to take back the woman as his wife accords with Roman law and seems to indicate that a ransomed woman did not automatically regain her married status.

45. In the case of a deaf-mute, marriage is considered valid even before he became of sound senses (see mYeb 14.1), but not in the same status or degree. Such marriages are said by later sources (bYeb 112b) to apply only as a "regulations of the sages" (inline graphic). The legal institution of the deaf-mute marriage in tannaitic halakhah possesses unique characteristics and poses serious challenges not yet addressed by scholars. For the legal status of the deaf-mute in rabbinic law more generally, see Chana Friedman, "The Deaf-Mute in Halacha" (Hebrew), Michlol 15 (1998): 29–35

46. The basic assumption here is that these women were virgins at the time of the original marriage.

47. It should be emphasized that the comparison between the marital status of the deaf-mute and the imbecile and the marital status of the captive women is limited. On the important differences, see discussion below.

48. Lieberman (Tosefta ki-fshuta, 238 note 40) has shown that according to some medieval sources, after ransoming his wife and returning her to his house, the husband had to write a new ketubah, "as if he had divorced her and then took her back." In several ketubot from the Genizah the ransom clause has an additional clarification (Friedman, Jewish Marriage, 351): inline graphic or inline graphic (and I will take you back as my wife as of first). Friedman (355) has suggested, in light of Lieberman's note, that the phrase "as at first" could have been interpreted as implying that "the husband was required to write a new ketubah for his wife after he had ransomed her." It seems likely, in our opinion, that such an interpretation might already underlie the Tosefta's ruling that the ransomed wife will receive a ketubah of 100.

49. This reading also supports a simple lining-up of the chapter of the Tosefta vis-à-vis its parallel in the Mishnah, rather than the complicated alignment suggested by Brody. See above, and the appendix to this essay.

50. Whether the husband takes his wife back according to the ransom clause in the marriage contract or to the court's condition is inconsequential for our purposes, since mKet 4.8 includes both commitments. In both cases, the return of the wife is considered as a second marriage.

51. See, e.g., Reuven Yaron, Gifts in Contemplation of Death in Jewish and Roman Law (Oxford, 1960); Boaz Cohen, Jewish and Roman Law, 2 vols. (1966; Piscataway, N.J, 2018); Bernard S. Jackson, "On the Problem of Roman Influence on the Halakah and Normative Self-Definition in Judaism," in Jewish and Christian Self-Definition, vol. 2, Aspects of Judaism in the Graeco-Roman Period, ed. E. P. Sanders et al. (Philadelphia, 1982), 157–203; Natalie B. Dohrmann, "Manumission and Transformation in Jewish and Roman Law," in Biblical Interpretation and Cultural Exchange: Comparative Exegesis in Context, ed. N. B. Dohrmann and D. Stern (Philadelphia, 2008), 51–65; Christine Hayes, "The Abrogation of Torah Law: Rabbinic 'Taqqanah' and Praetorian Edict," in The Talmud Yerushalmi and Graeco-Roman Culture, vol. 1, ed. P. Schäfer (Tübingen, 1998), 643–74; Hayes, "Genealogy, Illegitimacy, and Personal Status: The Yerushalmi in Comparative Perspective," in The Talmud Yerushalmi and Graeco-Roman Culture, vol. 3, ed. P. Schäfer (Tübingen, 2002), 73–89. See also the papers in Catherine Hezser, ed., Rabbinic Law in Its Roman and Near Eastern Context (Tübingen, 2003); Jonathan S. Mil-gram, From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts (Tübingen, 2016). For an updated review of scholarship regarding the presumed influence of Roman law on tannaitic halakhah, see the bibliographic note in Catharine Hezser, "Roman Law and Rabbinic Legal Composition," in Cambridge Companion to the Talmud, ed. C. E. Fonrobert and M. S. Jaffee (Cambridge, 2007), 161; and Ishay Rosen-Zvi, "Is the Mishnah a Roman Composition?" in The Faces of Torah, ed. M. Bar-Asher Siegal, T. Novick, and C. Hayes (Göttingen, 2017), 487–508, and references to concrete case studies (esp. note 9). Rosen-Zvi's essay is extremely valuable for understanding the scholarly debate in which we would like to take a stance.

52. Rosen-Zvi, "Is the Mishnah a Roman Composition?" 487–90.

53. For a clear formulation of this assumption, see Leib Moscovitz, "Legal Fictions in Rabbinic Law and Roman Law: Some Comparative Observations," in Rabbinic Law in Its Roman and Near Eastern Context, ed. Hezser (Tübingen, 2003), 120, note 71: "while captivity may affect the treatment of (female) captives under rabbinic law […] such treatment is not the result of "status loss" of the sort posited by the Roman sources, but of the possibility/presumption that the captive had intercourse with her captors."

54. Roman citizenship obviously included important political aspects, on which see, for example, Claude Nicolet, The World of the Citizen in Republican Rome (Berkeley, Calif., 1988); Adrian N. Sherwin-White, The Roman Citizenship (Oxford, 1980). However, there is a scholarly consensus that a primary feature of Roman citizenship was the subjugation to Roman law. See Sherwin-White, Roman Citizenship, 267; Jane F. Gardner, Being a Roman Citizen (London, 2010), 1–6. This is especially true during the imperial period, when citizenship was granted to all free men in the provinces. The scholarly attempt to trace the meaning of the universal granting of citizenship by Caracalla at 212 c.e. generally focuses on the granting of status vis-à-vis Roman law. See Ralph W. Mathisen, "Peregrini, Barbari, and Cives Romani: Concepts of Citizenship and the Legal Identity of Barbarians in the Later Roman Empire," American Historical Review 111 (2006): 1013: "In the world of Roman officialdom during the Roman Republic (509–27 B.C.E.) and the first few centuries of the Roman Empire, citizenship denoted an elite legal status to which certain rights, privileges, and obligations accrued under the law." See also Peter Garnsey, "Roman Citizenship and Roman Law in the Late Empire," in Approaching Late Antiquity: The Transformation from Early to Late Empire, ed. S. Swain and M. Edwards (Oxford, 2004), 155.

Roman citizenship obviously included important political aspects, on which see, for example, Claude Nicolet, The World of the Citizen in Republican Rome (Berkeley, Calif., 1988); Adrian N. Sherwin-White, The Roman Citizenship (Oxford, 1980). However, there is a scholarly consensus that a primary feature of Roman citizenship was the subjugation to Roman law. See Sherwin-White, Roman Citizenship, 267; Jane F. Gardner, Being a Roman Citizen (London, 2010), 1–6. This is especially true during the imperial period, when citizenship was granted to all free men in the provinces. The scholarly attempt to trace the meaning of the universal granting of citizenship by Caracalla at 212 c.e. generally focuses on the granting of status vis-à-vis Roman law. See Ralph W. Mathisen, "Peregrini, Barbari, and Cives Romani: Concepts of Citizenship and the Legal Identity of Barbarians in the Later Roman Empire," American Historical Review 111 (2006): 1013: "In the world of Roman officialdom during the Roman Republic (509–27 B.C.E.) and the first few centuries of the Roman Empire, citizenship denoted an elite legal status to which certain rights, privileges, and obligations accrued under the law." See also Peter Garnsey, "Roman Citizenship and Roman Law in the Late Empire," in Approaching Late Antiquity: The Transformation from Early to Late Empire, ed. S. Swain and M. Edwards (Oxford, 2004), 155.

55. This is not to say that a different perspective does not exist in rabbinic sources toward this question. See e.g. bShab. 68a and yShab 7.1 (9a).

56. Yair Furstenberg, "The Rabbis and the Roman Citizenship Model: The Case of the Samaritans," in In the Crucible of Empire: The Impact of Roman Citizenship upon Greeks, Jews and Christians, ed. K. Berthelot and J. Price (Leuven, 2018), 181–211. For an earlier Hebrew version, see "The Status of the Samaritans in Tannaitic Halakhah in Light of the Concept of Roman Citizenship" (Hebrew), Zion 82 (2017): 157–92.

57. Furstenberg, "The Status," in which he focuses mainly on the way this conceptual framework underlies the understanding of the Samaritans' status in tannaitic literature.

58. Here Furstenberg is in line with previous scholarly suggestions. An example for such a use of the Roman legal framework as an organizing principle that does not seem to penetrate the core of rabbinic halakhah could be found in the way mKid. 3.12, which discusses the status of newborns from different illegal marriages, was formulated in light of the Roman law of conubium, as it appears, for example, in Tit.Ulp. 5.3–8. This example has been discussed by several scholars, see Boaz Cohen, "Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence," Proceedings of the American Academy for Jewish Research 16 (1946–47): 1–37; Shaye J. D. Cohen, "The Origins of the Matrilineal Principle in Rabbinic Law," AJS Review 10 (1985): 19–53; Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (Berkeley, Calif., 1999), 263–307. And see now Furstenberg, "Roman Citizenship Model," who states explicitly: "This affinity seems to be one of the strongest testimonies to the influence of Roman law on rabbinic halakhah, not necessarily directly altering the legal practice, but effecting the adoption of prevalent legal categories." He applies a similar approach also to the case study of the status of the Samaritans.

59. Robert Brody, "'Rabbinic' and 'Nonrabbinic' Jews in Mishnah and Tosefta," in The Faces of Torah, 282–83.

60. A similar case could be made for the rabbinic laws of slavery. Paul V. McCracken Flesher (Oxen, Women or Citizens?: Slaves in the System of the Mishnah [Atlanta, 1988], 39–40) has already suggested that "for the Mishnah's framers, slavery cancels out the bondman's—and therefore the freedman's previous identity […] [I]f the bondman was originally an Israelite, enslavement affects him just as it affects the enslaved gentile, it cuts him off from his membership and position in his former society." Flesher's analysis had been fully adopted by Catherine Hezser, Jewish Slavery, 34, who also highlighted the Roman context of this approach to slaves (and see also 27–54; cf. Dohrmann, "Manumission"). However, the exact relation between rabbinic slavery laws and Roman and other legal systems is complex and requires further study, and so does the question of the impact of the Roman citizen model on slavery law. In addition, the relation between rabbinic laws of captivity and slavery is unclear and needs to be further elucidated. We hope to address some of these issues in a future study.

61. It is hard to determine if by adopting such a model the rabbis foresaw its full conceptual and legal consequences, and how far they were prepared to follow it to its logical conclusion. Nonetheless the model they have incorporated generates such theoretical ramifications.

62. Several additional sources in the Tosefta and the Bavli, which were not discussed in this essay, seem to reflect a conceptual adoption of the Roman law of captivity, similar to what we have shown here. In a forthcoming article ("A Rabbinic Postliminium: The Property of Captives in Tannaitic Halakha in Light of Roman Law," in Legal Engagement: The Reception of Roman Law and Tribunals by Jews and Other Inhabitants of the Empire, ed. K. Berthelot, N. Dohrmann and C. Nemo-Pekelman), we analyze these sources and argue that although they touch on a different subject, both in gender and in legal doctrine (the captive is a male rather than a female, and the legal bond at question is property rather than marriage) the conceptual assumptions at play are the same as those revealed in the case of the captive woman.

63. For the creation of the undifferentiated category of "goy," see the Adi Ophir and Ishay Rosen-Zvi, Goy: Israel's Multiple Others and the Birth of the Gentile (Oxford, 2018).

64. The Mishnah and the Tosefta are cited according to the Ma'agarim database (without the editorial signs). For a different version of the Tosefta, see Brody, Mishnah and Tosefta Ketubbot, 123–27.

65. This whole section inline graphic does not appear in a manuscript from the Genizah (T-S E2.141, 3r), and according to Brody, Mishnah and Tosefta Ketubbot, 17–18, it is a later addition.

Additional Information

ISSN
1553-0604
Print ISSN
0021-6682
Pages
141-172
Launched on MUSE
2019-05-15
Open Access
No
Back To Top

This website uses cookies to ensure you get the best experience on our website. Without cookies your experience may not be seamless.