Roman Law in the Writings of Paul - Adoption

7/31/2019 Roman Law in the Writings of Paul - Adoption

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ROMAN LAW IN THE WRITINGSOF PAUL ADOPTION

FRANCIS LYALL

FACULTY OF LAW

UNIVERSITY OF ABERDEEN, SCOTLAND

SOME three years ago Professor G. M. Taylor suggested that inGalatians Paul used the word to denote the Roman institu-

tion of fidei commissum or an exact Galatian equivalent.1

He finished

his article with the statement, "If Paul can have known about fide

commissum, and if it befits his argument, it is certainly arguable that he

actually used i t." Professor Taylor's point therefore depends upon

knowledge and its suitability. I wish here to take this up from the

point of view of a Roman lawyer, using it to suggest a Roman content

for the much discussed concept of adoption, which Professor Taylor

seems to assume. In so doing I accept the Pauline authorship of thoseepistles traditionally ascribed to him, and, for the same reasons as

Professor Taylor, rely on the de Zulueta edition of Gams' Institutes.2

Paul uses the metaphor of adoption five times in all, in three places

in Romans and once each in Ephesians and Galatians. Of all his ex

pressions it is one of the most discussed. Some are content to see in it

only the de facto adoption that existed in British law until the passing

of the Adoption Acts in this century.3

Others refer the concept to

Jewish law and even th e deliverance of the children of Israel at the

exodus.4 It is true that here and there the Roman content is put,5 butit is not adequately substantiated and more formal suggestions seem not

1G. M. Taylor, "The Function of in Galatians," in JBL,

85 (1966), p. 58.2

F. de Zulueta, The Institutes of Gains; Oxford, 1958-63. Gaius wrote aboutA.D. 160-62 (A. M. Honor, Gaius, Oxford, 1962), and his is the only reasonablycomplete text available to us giving evidence of the state of Roman law about thetime of Paul. The fact that Gaius postdates Paul by about one hundred years is offset

by his interest in the development of the law and the references he makes to historicalmatters. Other earlier writers are quoted in Justinian's Institutes, but they do notcontradict Gaius noster. See Taylor op. cit., p. 65, n. 10.


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L Y A L L : ROMAN LAW IN WRITINGS OF PAUL 459

to have been taken up.6 A. A. Hodge is one of the few who approached

the concept in a present and continuous sense, which, combining justifi

cation and sanctification, is ideally illustrated by the Roman concept. 7

In Rom 9 4 the place of the Jews as the chosen people is underlined;to them belongs the sonship. In Rom 8 is, Eph 1 5, and Gal 4 5, the

metaphor points out the selection of believers as sons, their justification,

as it were their birth as sons, and also the fact that from then on they

live as members of God's family, under his guidance and authority,

under his potestas. Lastly the allusion in Rom 8 23 to waiting for the

adoption refers to our final transformation at the second resurrection.

Then indeed will we have passed from our former state into something

wholly new.

The suggestion of the Roman derivation gains force when it is realisedthat Roman law is the only suitable source of reference for Paul. Jewish

law, the obvious alte rnat ive, does not possess concept. Adoption is the

legal device found in many legal systems by which a person leaves his

own family and enters the family of another. Th e fundamental reason

for this is to ensure that the family making the adoption will continue.

In the absence of the adoption tha t family line would die out . There is

no suggestion that the adoption is made for the protection, maintenance,

or benefit of the adoptee, and it is necessary to distinguish adoption from

fosterage and from succession to goods. Looking at adoption in this

narrow sense, it is quite clear that as a legal form it was unknown to

the Jews. No Jewish legal writing contains any provisions which can

be construed as adoption,8 and the human examples which we have in

the OT can be explained without resort to the concept. The instances

where God speaks of his relation to the Jews as parental do not help

this argument, but we can return to this later.

Before we come to the human adoptions it must first be shown why

the device of adoption was unnecessary and hence unknown in Jewishlaw. The basic element of adoption is an assumption of sonship which

enti tles the adoptee to continue the line of the adopter. This idea is

quite foreign to the Hebrew mind. It was a great tragedy that a man

might die without offspring, but this was not to be obviated in that way.

Instead two legal devices existed to ensure the continuance of the line.9

6 W. E. Ball, St. Paul and the Roman Law, Edinburgh, 1901, an expanded versionof his article of the same name in Contemporary Review, 60 (1891), p. 278. Ramsay,

HistoricalCommentary, p. 338, (infra, n. 35) quotes Halmel, Das rmische Recht imGalaterbrief, as being to the same effect.7 A. A. Hodge, A Commentary on the Confessions of Faith, p. 261 ; cf. Thornton


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460 JOURNAL OF BIBLICAL LITERATURE

The first of these depends on the proposition that it is the continuanc

of the seed of the man, the male line, which is important, the status o

the mother as wife or otherwise being less so. Indeed the division o

progeny is not made on the basis of legitimacy and illegitimacy as nowadays, where the marriage of parents is crucial, but upon the ceremonia

fitness or otherwise of the child. This is the basis of my rejection o

the thesis put forward by Professor Feigin that Jephthah was adopted.

Professor Feigin, reading in the modern concept of legitimacy, assume

th at Jephthah was adopted, but this need not be the case. Jephtha

could be in the family simply by reason of his parentage. Ceremoniall

unfit by being the son of a harlot, nonetheless he was one of the famil

entitled to inherit from Gilead, and for this reason he was driven out b

his half brothers."

Further evidence of the importance of the seed is seen in the gene

alogies. In most cases the mother is not mentioned, and on occasio

"subsidiary*' marriages carry the line. It was qui te proper for a man t

have children by a servant who were then reared as if issue of his mar

riage. One of the best instances of this is the giving of Hagar to Abraham

by Sarah, where in Gen 16 2 Sarah comments, "i t may be th at I sha

obtain children by her." The same device is found in the case of Jacob

his two wives and their maids in Gen 30, and at its most extreme application in Gen 19 30-38 where Lot 's daughters seek to justify their inces

on the grounds that this would preserve their father's seed, though it i

clear from the narrative that this is only part of their motivation.

Sometimes, however, a man did succeed in dying childless, and i

th at case the institution of levirate marriage established in Deut 2

was invoked. By this it was the dut y of the brother of the deceased t

take the widow and raise sons for him. These children, product of

man and his deceased brother's widow, then continued the line of th

deceased." Substitu tion of the male was possible after a ceremoniarenunciation of the righ t/duty by the nearest relative. Thus in th

case of Ruth it is of great importance that Boaz was a relative (Rut

2 20), but Boaz himself properly raises the difficulty of the nearer relativ

(Ruth 3 12) and sees to its solution (Ruth 4). However in the ordinar

instance the levirate was the duty of the brother which could only b

ignored with peril. The ceremony whereby a woman castigates one wh

fails to take her in levirate marriage is set out in Deut 25 7-10, an

would involve much loss of face for the person concerned.

10 S. Feigin, "Some Cases of Adoption in Israel," JBL, 50 (1931), p. 186." D R M i 261 G H i i 145 Cf S h' i i


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LYAIX: ROMAN LAW IN WRITINGS OF PAUL 461

Final proof of the importance of the institution of the levirate canbe obtained from the case of Tamar, the daughter-in-law of Judah, inGen 38. She was married first to Er and then in levirate to Onan whowilfully failed to give her a son and for this was slain by God. Judahsent her home to wait until his third son had grown, though the impression given is that he did not wish to risk a third son with her. Inthe event Judah did nothing, and finally Tamar took the initiative.Dressing as a harlot, she obtained a child by Judah himself. Normallyharlotry by a widow was an extremely serious offence, and Judah wentto punish her, but the blame that she would have incurred was changedto praise when she showed that by playing the harlot she had fulfilledthe laws of levirate marriage.

Bearing in mind that these two devices largely eliminate the needfor a concept of adoption, we can now consider the instances in the OTwhere it looks as though adoption is involved. Of these the principalcases, apart from that of Jephthah, discussed above, are those of Ephraimand Manasseh, Moses, Genubath, Obed, and Esther. Eliezer of Damascus, the servant of Abraham, (Gen 15 2) need not be considered asthere is no evidence that this case was anything other than a matter ofsuccession.

It is true that Jacob on his deathbed raised the two sons of Joseph,Ephraim and Manasseh, to equal status with his own progeny (Gen48 5 and e). But in so doing Jacob is allocating rights of successionamong persons who are already within the family, not bringing in anoutsider. To that extent this instance is not a true adoption.

One point is common to each of the next three cases, Moses, Genubath,and Esther. In these the facts occur in an alien legal milieu Egypt inthe first two cases and Persia in the last. It may therefore properly beasked whether they provide any evidence as to the Jewish law.

In the case of Moses we are confronted with instance of fosterage.It is true that Moses was reared as one of Pharaoh's house by Pharaoh'sdaughter,

13and that he remained in the royal circle for forty years.

However, he himself seems to have refused to consider himself anEgyptian,14 and certainly did not feel that his upbringing gave him anyspecial privileges or authority. Faced with the question, "Who madeyou a prince over us?" he fled.15 Further, as there is no evidence offormal adoption proceedings, Pharaoh's attitude in Exod 2 is might betaken to argue their nonexistence.

Genubath is another case of fosterage, the difference between himand Moses being that he was related by blood to the Egyptian royal

16


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has been taken to Egypt when a small boy, to escape from the wrath o

Joab. He grew to manhood in Egypt and in the course of time married

the sister of Tahpenes the queen. Their child, Genubath, was reared b

Tahpenes among the sons of Pharaoh. We are not given sufficient datprecisely to define his status, but we can at least say that there is n

evidence of his adoption by Pharaoh.

Another example is th at of Obed, the son of Boaz and Ruth . When h

was nursed by Naomi, the women of the neighborhood "gave him

name, saying, 'a son has been born to Naomi.' " I 7 This might be take

to indicate an adoptive relationship, but Naomi was already in loc

parentis by reason of the levirate, and in any case such an adoptio

would do nothing to satisfy the continuance of the male line. Wh at w

have here is better explained as just a recognition of the delight o

Naomi in the new arrival, a delight accentuated by her own previou

loss of husband and sons.

Obed may also be linked to Moses and Genubath, and even to th

case of Sarah and Ishmael if it be felt that Sarah was originally intendin

to adopt the child. In all these cases there may have been an informa

adoption a treating as son but this has no importance. Thes

cases are * adop tions' ' by a. iemale . The seed continued in the ma

line only.18

In Esther 2 7 we read tha t Mordecai, Esther 's uncle, had taken hi

orphaned niece as a daughter, a form of words which looks very like

formula of adoption. Indeed the translators of the RSV have no doub

of the matter and translate the verse that Mordecai had adopted her.

We may raise the objection that such an adoption would not continu

Mordecai's line as Esther was a woman, and so this instance lies withou

the stric t sense of the term. Be tha t as it may, adoption was a concep

known in the Babylonian empire,20 and it must be agreed that the res

of Esther shows that the girl and her uncle would be unlikely to use foreign legal device which ran counter to Jewish legal thinking. Thi

raises the question of the extent to which the Jews knew and tolerate

foreign concepts, especially as the remaining examples of human adop

tion may also show Babylonian influences.

x Ruth 417.18

Ezra 2 61 and I Chron 2 34-35 do look like an adoption in the female line, but thdoes not alter the point of the male predominance.

19It is likely that Mordecai was a eunuch, this explaining why he was allowed t

walk in front of the court of the harem (Esther 2 11). Adoption would be the onlmethod by which his line might continue.

30Babylonian adoption seems to have had as its most frequent rationale the placin


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LYAL L: ROMAN LAW IN WRITINGS OF PAUL 463

The first ofthese is taken up by Feigin in the note already referred

to above.21 In his discussion ofEzra 10 44, Feigin, pointing out the diffi

culty in the second half of the verse, comes to the conclusion that, the

text being corrupt, the correct meaning is that some of the men listedin the earlier verses had married strange wives who already had children

by other men (Babylonians?), and that the new Jewish husbands had

adopted these. This does seem plausible since the people had just re-

turned from Babylon, where an adoption was known. I have not the

technical competence to challenge Feigin's reconstruction of the text,

but it may be that the text is good as it stands. It could be that the

men are putting away their strange wives and their own children. This

cannot have been a happy occasion, and it may be that the writer wished

to emphasize that some men put away their own bairns as well as their

wives, a measure of their determination to be faithful to God and to

the law.

Other examples closely parallel the adoption formula to be found in

Babylonian law. They might be further referred to the Nuzi texts,"

but that seems to be pushing things too far. Mere priority in date does

not imply influence when the other connections of two legal systems are

so slender. Abraham did come from the Nuzi region, but the first ex-

ample we have is ofTamar, levirate and not adoption. The connectionwith Babylonian law is more distinct.

That the Jews wefe not averse from borrowing from other legal

systems is known. The Decalogue itself is in form a vassal treaty of the

time.23 This strengthens the case for "borrowing1' when formulary ex-

pressions are found. Thus in a recent article Professor Dieter Nrr

quotes Jesus* words to John and his mother, as being akin to the

Babylonian formula.2* Other instances exist. God's affirmation of

Christ's sonship at his baptism25 and on the Mount ofTransfiguration26

can be similarly considered. In the OT there are two very clear examples.In Nathan's prophecy (II Sam 7 14) in a passage capable of reference

both to Solomon and to Messiah, God says, "I will be his father, and he

shall be my son." An even better example is found in Ps 2 7 where God

Supra, n. 10.23 W. H. Rossell, "New Testament Adoption Graeco-Roman or Semitic?" in

JBL, 71 (1952), p. 233. For a recent survey see M. H. Prvost, "Remarques surl'adoption dans le Bible," Revue internationale de droits de Vantiquit, 14 (1967), p. 67.

23 A point made by V. Korosec, speaking on "The Cuneiform State Treaties: The

Growth oftheir Substance" to the Society for the History of the Laws ofAntiquity,when it met in Aberdeen, September, 1964. I have no published reference for this,though an abstract appears in Revue internationale de droits de Vantiquit 12 (1965)


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says to David (and to Messiah), "You are rny son, today have I begotteyou." Other, less clear, examples exist.

37

The OT cases all involve a declaration by God that someone is h

son. They are therefore akin to the formulae and concepts to be founhere and there in the ancient world. Egypt is not a good source of th

analogy since there the king was considered to be divine. Babylo

is more probable since there the king was the adopted son of Go

Mowinckel goes into this at some length, and there is little that can b

added.28

But one need not go on from these cases to postulate a leg

device of ordinary use in Jewish law.29

The other evidence is too slende

The biblical examples themselves do not prove the case, and there no help from such extraneous secular sources as I am aware of.

Professor Yaron quotes a single case of adoption from the Arama

papyri.30

As he says, the facts are obscure, though the intention

adopt a slave is clear. However, the transaction takes place in th

presence of the Persian garrison commander, a fact which may indica

that Persian and not Jewish law is involved.

The other instance is even more unsatisfactory. Professor Leogives not a few cases from the inscriptions in the Jewish catacombs Rome where adoption of and by Jews is clear.

31However, in view of th

paucity of the other evidence, I believe that it can fairly be taken ththese are cases of Jews using the Roman legal forms.

The evidence for the existence of a Jewish concept of legal adoptiois, then, not large, but this does not of itself establish that Paul ha

the Roman analogue in mind. The first point which has to be met that there may well have existed a perfectly usual and respectablthough extralegal adoption, just as de facto adoption occurred in thUnited Kingdom long before the Adoption Acts. This point has beetaken by Professor Falk, who cites many of my examples as justifyin

this conclusion.32

Certainly by the time of Mahomet there was a reconized institution of adoption among the Arabs, for it is abolished in th

Koran.33

The possibility of informal adoption is real, but it may b

doubted whether Paul would have used an informal illustration whe

there existed an apposite formal analogue.

If it is accepted that Paul was probably not using any form of Jewis

reference but was using adoption in a legal sense, it is then necessary t

*iE.g., Deut 8 5; Ezra 2 61; I Chron 2 34-35; Isa 1 4, 30 l and 9; Mai 1 6.38

S. Mowinckel, He That Cometh (G. W. Anderson, trans.), particularly pp.

and 78.*' Z. W. Falk, "Legal Archaeology," Iura, 17 (1966), p. 167.3 R Y I d i h L f h A i P i 40


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consider which legal system he did have in mind. He uses the conceptonce each in Galatians and Ephesians and three times in Romans.Gaius tells us that the concept ofpatria potestas which lies at the root ofRoman family law was also known in Galatia.34 It is tempting thereforeto speculate that Paul, thanks to his travels and training, may have hadknowledge of a Galatian adoption law devised to meet problems raisedby the concept of potestas in the same way that the Roman conceptwas. But this is pure conjecture. Present knowledge does not entitleus to pass on this point.

The other possibility, shared with the Ephesian instance, is thatthere is some reference to Greek law or a local derivative of the same.

This is possible, but the Greek law of adoption was a pale shadow ofthe Roman, existing more as a succession device than anything else.35

In view ofPaul's command ofsymbol one may askwhether he wouldrefer to a lesser analogue when a better lay to hand.

A common legal link of the three epistles is Jewish law from thesynagogue. However, it appears from the foregoing discussion thatJewish law did not contain a concept ofadoption to which Paul mightsignificantly refer. On the other hand Roman law does, and Roman lawis a common factor. The churches of Ephesians and Galatians were

situated in centers ofpopulation, each with Roman authority present,36

and the church in Rome would certainly know its local law. Taken withPaul's other uses ofconcepts known to Roman law,37 a pattern begins toemerge. Paul was a Roman citizen, and also a lawyer trained in Jewishlaw. It is well-known today that traveling lawyers tend to pick upknowledge of systems other than that of their training, and I find it

34 Gaius Institutes 1, 55. In fairness to Gaius I must point out that he simply states(in the de Zulueta translation), "I am not forgetting that the Galatians regard children

as being in the potestas oftheir father." This does notmean that Galatian law was theonly other system having the concept; cf. Taylor, op. cit., at n. 27.

35 J. W. Jones (Law andLegal Theory ofthe Greeks, pp. 196 ff.) and A. R. W.Harrison (The Law of Athens: The Family and Property, pp. 82ff.)show that in Athensadoption was closely tied up with succession matters. This is obviously true also ofRoman adoption, but in Roman adoption there is the added factor of the passing ofthe adopted into the potestas of the adopter. Since there is no law ofGreece as such,generalization is difficult; nonetheless many feel that Greek law was the basis ofPaul'sGalatian allusions. See W. M. Ramsay, A Historical Commentary on Saint PauVsEpistle to the Galatians, pp. 339ff.,and The Teaching ofPaul in terms ofthe PresentDay, p. 203.

*6 Particularly ifone accepts the South Galatian theory. In this case the Galatianepistle would have been written to the churches at Derbe, Lystra, and Iconium, each


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hard, for this reason alone, to hold that Paul did not know the Roman law

Add to that the fact that Roman law was the system having paramou

jurisdiction over him as a citizen, and the case is very strong indeed.

Lastly, as I have implied for the last few pages, the appropriatene

of the metaphor must be taken into account. It is unnecessary to spec

late which form of adoption, adoptio or adrogatio, may have been i

tended.38 While it is true that adrogatio in Paul's time could take plac

only at Rome, nevertheless both forms have the same fundament

effect. Th e adoptee is taken out of his previous state and is placed in

new relationship with his new paterfamilias. All his old debts are ca

celed, and in effect he start s a new life. From that time the paterfamili

owns all the property and acquisitions of the adoptee, controls hpersonal relationships, and has rights of discipline. On the other han

he is involved in liability by the actions of the adoptee and owes reciproc

duties of support and maintenance.39

The Christian doctrines of election, justification, and sanctificatio

imply that the believer is taken out of his former state, and is placed

a new relat ionship with God. He is made par t of God's family foreve

with reciprocal duties and r ights . All his time, property, and energ

should from that time forth be brought under God 's control. The Roma

law of adoption, with concept of patria potestas inherent in it, is peculiarly useful illustration of these doctrines in action. I conclu

th at Paul's use of the term * "adoption" in Romans, Ephesians, a

Galatians was a deliberate, considered, and appropriate reference

Roman law.

J8 The Vulgate uses adoptio in the five instances.

39 Gaius Institutes, 1, 97-107; 1, 134-135a; 3, 83-84; cf. W. W. Buckland, A Textbo

of Roman Law from Augustus to Justinian*, ed. by P. Stein, pp. 121 ff. On the conce

of patria potestas see Gaius ibid., 1, 55-96; 2, 86-96; 3, 163-167; 4, 69-74. Buckla

op. cit., pp. 102 ff., and J. Crook, "Patria potestas," Cfassical Quarterly (N.S.) ,

(1967), p. 113.


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Roman Law in the Writings of Paul - Adoption