Jeremy Tabick

Ancient Jews and the Mediterranean

25 December 2015

The Influence of Roman Iniuria in Palestinian Rabbinic Law

Introduction

What is the relationship between the laws of habalah in the Rabbinic literature of Eretz Yisrael

and the Roman legal thinking of the related concepts iniuria and Lex Aquilia? Iniuria is a very

expansive concept, including injury to free persons as well as their insult or defamation, and

many other cases of getting in the way of another freeman’s life. Lex Aquilia governs laws of

property damage, especially regarding slaves. The boundaries between these two areas of law is

often blurred in the sources—they move from discussing personal damage to discussing property

damage, and vice versa.

In the Rabbinic sources, the primary category appears to be habalah. It is primarily the

physical injuring of another person, though (as we will see below) encompasses less serious

crimes as well. While in general the laws covered under Lex Aquilia are found in other chapters

(slave murder, property damage, and so on), the Rabbinic sources are often just as blurred

between habalah and other forms of damage as the Roman. Once we are dealing with similar

topics and cases, we are moved to ask what other connections there are to be found. We will thus

attempt to uncover traces of Roman influence or anti-Roman sentiment in the Rabbinic sources.

We have two key methodological cautions, which are worth naming now and trying to

mitigate them as we progress:

1. We will quote Roman texts from 3rd BCE to 6th CE—all of these are quoted in Digest.

Where possible we will find an earlier text (like the book of Paulus or Gaius), but so

many of the early jurists come to us only through Justinian that it would be impossible to

do so entirely. We can assume that at least some of the opinions quoted do indeed

represent the laws of earlier times, but who knows which ones or how many? This would

require much more experience with the language and history of Roman law than I

possess. I will thus take the safer road and treat the works before me—Rabbinic and

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Roman—as texts representing mostly their date of publication.

2. The jurists are writing in Rome about Rome. It is not at all clear how much their rulings

were practiced in the Roman East, where one imagines many Greek legal customs and

practices continued unchanged into the Roman period (especially earlier on, when the

Romans ruled through local kings). Again, counting for this factor would require a much

more learned scholar than me.

Therefore any conclusions regarding the influence of these ideas on Jewish law must be

tentative at best.

That said, the comparison is certainly valuable, since Roman jurists are unlikely to have

thought something that was totally unlike their Greek neighbours and counterparts—after all,

both Rabbinic and Roman law are products of broadly similar circumstances.

We will analyse points of contact between the Roman legal opinions and that of Palestinian

Rabbinic literature (Mishnah, Tosefta, Yerushalmi). The Tosefta is surprisingly rich with Roman

parallels, while Mishnah and Yerushalmi are comparatively sparse; thus we will spend most of

our analysis on the Tosefta. We also present this as a supplement and corrective to Pomeranz’

concise and informative article: since there was focussed on the Mishnah, here we will focus on

the other sources.

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Ancient sources for Roman and Rabbinic lawAny casuistic legal system takes precedent very seriously. Before we see the laws of the classical

period, we must consider their canonical sources.

The legislations in Baba Kama (if anywhere in Scripture) are most derived from parashat

Mishpatim.

On the Roman side, there are three main sources that the jurists comment on in this context:

1. The Twelve Tables;

2. Lex Aquilia;

3. Lex Cornelia de iniuriis.1

We will briefly discuss and compare these sources.

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3

The Twelve Tables

The locus for iniuria and property damage law is the eighth of the Twelve Tables:

VIII.1a. Whoever enchants by singing an evil incantation ...

1b. ... If anyone sings or composes an incantation that can cause dishonour or disgrace to another ... he shall

suffer a capital penalty.

2. If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensa-

tion with him.

3. ... If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 as; or

of 150 as, if of a slave.

4. If one commits an outrage against another the penalty shall be 25 as.

The first rule appears to be about casting a spell to harm another household. It natively has

nothing to do with iniuria, despite some older translations rendering “evil incantation” as

something like “libellous song”. However, from Cisero we know that this was interpreted early

on to mean exactly those libellous songs (carmen famosum). This becomes one of the paradig-

matic cases of iniuria in later ages (see Paulus 5.4.6. for one example).2

The second rule makes it explicit that the right punishment for injury is actual retaliation

(talion), but this may be waived if the parties wish in favour of monetary compensation. This is

often compared with the legislation of the Torah which requires actual retaliation and leaves no

room for monetary compensation. As we will see, in Exodus 21, this is a simplistic and wrong

interpretation of the verses.

The third rule seems to indicate a less severe case than the former. Breaking the bone of

someone is not serious enough to warrant talion, so instead it comes with a fixed monetary

penalty. Finally, the fourth rule appears to be a lower-level injury still, regarding other damage to

a person, not as serious as even a broken bone, with an even lower fixed penalty3 By the time of

Gaius, rules 2-4 are three of the foundational iniuria types (Gaius 3.223.).

The way these facts are interpreted in the sources (and by Pólay) is that iniuria is an insult to

the pater familias. This insult could be to his own body, or to the body of any person or property

in his household. Thus iniuria, as defined and understood in the foundational Roman legal

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document, is primarily insult, and secondarily actual injury.

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Lex Aquilia

More robust legislation for property damage was passed in 3rd BCE, of which there were three

articles according to the sources. The second will not concern us, as it is a more specific clause

which, Ulpian notes in the Digest (D 9.2.27.4.), has fallen into disuse.

1. Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in

the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth

during the past year (D 9.2.2.pr., Gaius)…

3. If anyone damages the property of another except by killing slaves or cattle, whatever the value of the

property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be

compelled to pay the amount to the owner of the same (D 9.2.27.5., Ulpian).

Mainly this is concerned with damage to slaves of others. (Note that it is taken for granted

that you can damage your own slaves as much as you please). It also deals with other willful

property damage. Finally, it gives us a guideline on how to evaluate the damages of slaves and

other property—based on their highest value in the past year.

As Pomeranz rightly draws attention to,4 the Digest thinks that medical expenses and time off

work for injured slaves are also covered by this legislation (D 9.2.27.17., Ulpian), as well as for a

son under the father’s authority (D 9.2.7.pr.).

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Lex Cornelia de iniuriis

In the 1st BCE we have another source of the laws of iniuria, clarifying and expanding the

Twelve Tables. We do not have the exact text of this edict but must reconstruct its contents based

on later quotations.5

Broadly, it grants actions for three cases:

1. to thrash against (verberare),

2. to knock against (pulsare), and

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3. to break into someone’s house by force (domum vi introire, see I 4.4.8.)6

For purposes of the Rabbinic law, this law thus covers two cases of habala between free

people:7 verberare and pulsare. Breaking into someone’s house is not dealt with in our chapter.

What, then, is the difference between verberare and pulsare? According to the Digest,

quoting Ulpian:

D 47.10.5.1.

The following difference exists between striking (verberare) and beating (pulsare), so Ofilius says: to beat

is to cause pain, to strike is to inflict blows without pain.

Overall, this fixes the laws of the Twelve Tables VIII.2-4, with some modifications. It allows

for higher punishments than the fixed fines of the earlier law, and brings personal injury squarely

into laws of iniuria. Additionally, the Twelve Tables make no mention of intentionality—in fact,

it is likely it wanted the law to apply to both intentional and accidental cases. However, this Lex

Cornelia de iniuriis is talking about cases that are nigh impossible to do without intention—how

can you accidentally break into someone’s house?8—how can you accidentally break into

someone’s house? This intentionality is a major fact of iniuria in later literature, which we will

return to below.

Paulus notes the change from the Twelve Tables to this new law (also see Gaius 3.224.-225.):

Paulus 5.4.6.-9.

6. The action for injury is based either upon law or custom, or upon both. Punishment is provided by the

Law of the Twelve Tables for libellous poems, broken limbs, and fractured bones.

7. So far as custom is concerned, this takes place whenever the damage caused by an act is estimated by the

judge according to its nature, and is punished by the infliction of a suitable penalty.

8. The action for injury arising from both law and custom is established under the Lex Cornelia…

9. Anyone who is civilly convicted of having caused an injury is required to pay the damage and becomes

infamous.

This is the basis for iniuria going forward.

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Parashat Mishpatim

The fullest account of laws of injury in the Torah are in Exodus 21:9

18. When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his

bed— 19. if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except

that he must pay for his idleness and his cure.

20. When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be

avenged. 21. But if he survives a day or two, he is not to be avenged, since he is the other’s property.

22. When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other

damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him,

the payment to be based on reckoning. 23. But if other damage ensues, the penalty shall be life for life, 24.

eye for eye, tooth for tooth, hand for hand, foot for foot, 25. burn for burn, wound for wound, bruise for

bruise.

26. When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on

account of his eye. 27. If he knocks out the tooth of his slave, male or female, he shall let him go free on

account of his tooth.

There seems to be only one case of injury between two freemen described here, and that is of

vv. 18-19. The situation: they fight; if the person survives, then the assailant has to pay for his

time off work and his medical expenses. If the person does not survive, then presumably we

should look at vv. 12-14, which gives the punishment of either death (if the killing was intention-

al), or the perpetrator can run to find sanctuary (if the killing was accidental). The commonly

quoted retaliation for this case actually is not specified with the general case, but only regarding

the specific case of the pregnant woman.10

In this case, it appears that the two men were fighting and accidentally cause damage to a

woman instead. If there is a miscarriage, the compensation the husband wishes11 for the lost

foetus goes to him (demei vladot of the Tosefta). If the woman is otherwise damaged, then

retaliation is invoked. It seems most likely to me that this too was a way of asking for monetary

compensation,12 but to whom this money goes is not clear—one assumes still the husband. It

seems the case of deliberately hurting a woman is not dealt with here; the Torah may imagine

something similar to pater familias in which the head of the household gets damages for

everyone in their care.

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The Torah then moves onto a case not parallelled in Roman law: when one free person

wounds a slave, the slave should go free. Furthermore, the case of someone killing their own

slave seems to be a serious matter according to the Torah, and not even mentioned by the Twelve

Tables, and specifically allowed under later Roman law.

The Torah also specifically legislates the time off work and medical expenses for any

freeman. This is in contrast to what we saw above under Lex Aquilia, which mentions these

payments only infrequently and in passing. Presumably (though not explicit in the sources),

when making an estimate for iniuria, these items are taken into account by the judge. Certainly,

medical expenses and loss of work was money that the victim would have been interested in

recovering; it is hard to imagine that only the Torah came up this is as a general principle.

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Points of contact between Roman and Rabbinic lawNow we will list some similar concepts and cases between Roman and Rabbinic law and discuss

their similarities and differences. I will endeavour to point to situations where either Pomeranz

appears to be insufficient or is silent. I of course could not cover everything, but I have chosen

five of the most in-depth investigations, and those with the highest-stake Roman parallels.

The Rabbinic sources on habalah are exceptionally opaque. They are also exceptionally

different from one another, with a surprisingly small amount of crossover material between

them.13 So we are left with many textual difficulties and missing information, that may have to

be supplied from other sources.

How do we decide when to use the other sources and when to understand them on their own

terms? As much as possible, I will try to read the Tosefta as its own self-contained document, and

not reliant on the Mishnah. While I advocate this approach in general (unless it is simply

incoherent without the Mishnah), this seems particularly right to me in this case as it covers

much broader topics and cases than does the Mishnah. Doing so will lead us to some surprising

conclusions.

The Yerushalmi on this chapter is extremely terse; this is a known feature of Yerushalmi

Nezikin in general, which Lieberman thought was related to an earlier recension in Caesarea.14

There too are a lot of difficult passages. The Mishnah is not much more than typically terse,

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using minimum words to convey maximum information. Thus, all three of them are at times

amenable to multiple interpretations.

It is in these situations specifically that the Roman parallels become vital, and we will use

attempt to use these to ask new questions and adjudicate between possible interpretations

wherever we can. We will focus on the Tosefta and make reference to Mishnah and Yerushalmi,

and we will make some references to midreshei halakhah when we have occasion to.15

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Assessing a free person's value

As Pomeranz rightly notes,16 the Mishnah (8:1) requires one to evaluate a free person as a slave

to determine nezek (“nezek—how so?”), which Roman law never did—such damage was instead

recoverable under a flexible iniuria (see Gaius 3.225. for an outline of this process). However, he

does not note that the Mishnah is the only Eretz Yisraeli law book that refers to this rule (and I do

not believe it is in the Tannaitic midrashim either): the Yerushalmi never refers to it, nor

comments on it, though the Mishnah is quoted in full in ms. Escorial.

Therefore, I think we need to consider the following question: is it possible that the Tosefta

does not know this rule?

Let us examine the Tosefta parallel to this mishnah. The Tosefta asks the same question

—“nezek—how so?”—but its answer is difficult to understand at first.

Tosefta Baba Kama 9:2-3

2. With nezek—how so? If he struck him and cut off his arm, or cut off his leg, they don’t see him as one

who makes a sela per day or as one who makes a maneh per day, but they see him as one who is a lame

guarder of gourds. And if you say that justice has suffered, justice has not suffered for he already gave him

the value of his arm and the value of his leg.

3. But, if he struck him and his arm swelled, or he struck him and his leg swelled, they see him as one who

he makes a sela per day—they give him a sela per day; maneh per day—they give him a maneh per day.

And they give him all of his nezek…

In the frame of our Mishnah, the Tosefta doesn’t answer the question about nezek. Instead, it

gives an answer about shevet!

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There are two solutions to this problem:

1. The Tosefta knows the Mishnah and assumes you do too. Even though the way the

question is framed is not fitting to the answer, it began copying the form of the Mishnah

and added its own case, one that is not clarified by the Mishnah (since the Mishnah never

mentions the two types of shevet in the two different scenarios).17 The way you are to

read this is as follows: “How do you work out the nezek payments? You evaluate them

like a slave. Additionally, the other payments are affected by the kind of damage.”

2. The Tosefta does not know the Mishnah and knows nothing about this rule of evaluating

someone as a slave. It is talking about a generic case of habalah, and then goes through

explaining the consequences regarding all of the different payments (it continues to

discuss ripui immediately afterwards and its limits). The way you are to read this is as

follows: “How do the five categories work in a case of damage?” The question, in this

reading, has nothing to do with how nezek is calculated: just how the laws of habalah

work in general.

Option 1 requires adding a lot of words to the question. In contrast, option 2 is actually very

clear. Therefore, I think there is no necessary reason to understand the Tosefta in light of the

Mishnah’s evaluation procedure. I will try to reinforce this by showing how incoherent under-

standing this question and answer is with the Mishnah.

Firstly, if the Tosefta copied the phrase “nezek—how so?” from the Mishnah, why did it stop

there? The Tosefta does not ask this question of the other categories like the Mishnah does. So

why copy this phrase at all?

Secondly, the Mishnah clearly thinks that nezek means serious, permanent damage, like loss

of limb, since the evaluation procedure involves finding a change in the value of a person (just as

in Lex Aquilia, see D 9.2.27.17, Ulpian). But in the Tosefta, in the second case (9:3) which

appears to be a case of temporary damage, it says “and we give him all his nezek”! The whole

point of the above quoted passage is to show that there are two kinds of nezek that lead to two

kinds of shevet; this seems in contadiction with the Mishnah.

Thirdly, we will appeal to Roman law. Nowhere does the laws of iniuria or Lex Aquilia give

practical guidelines for evaluating the objective value of a free person. The damages are up to the

individual victim or judge. The Digest expresses discomfort at the idea that a free person could

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have value at all (D 9.3.1.5., Ulpian), and so does the Talmud Bavli, as Pomeranz discusses.18

There is the “demei yado” and “demei raglo” which the Tosefta refers to,19 but it does not specify

how this is to be calculated.

I want to suggest that nothing compels us to understand the extra-Mishnaic Tannaitic

literature as knowing about this rule of evaluating a free person like a slave. Once Pomeranz

draws us to the conclusion that there was another option available, which became a problem in

Bavel, it leads us to the conclusion that other sources may not have had this problematic rule.20

Once we realise this, we are left with two options: either all the other Tannaitic texts were

assuming this rule and never stating it; or they did not have this rule at all,21 and were assuming a

system similar to that of Roman law, which did not need objective specification because it was

arbitrary in each case. It is actually an excellent implementation of the standard understanding of

the miscarriage case in parashat Mishpatim, that the payment should be based on reckoning—so

this method even has support from the Torah.

Let us be clear: there is an area of Roman law where people are evaluated like slaves, and

that is Lex Aquilia, because the people involved are slaves. In Roman law, injury to a free person

is covered by the Twelve Tables and the Lex Cornelia. The Tosefta here is talking about free

people as much as slaves, since there the laws are not substantially different (as opposed to in

Roman law; see the conclusion). It is thus combining two distinct areas of Roman legislation

regarding physical damage to people, one of which has an objective method for evaluating it, and

one of which does not. The Tosefta is silent as to the method of evaluation, so it does not seem to

be difficult to argue that it was assuming a similar structure as in Roman law: evaluate slaves

because we are able to do so, and assess the damage to a free person on a case-by-case basis.

Putting them together into the same phrase brings the illusion that the evaluation method may be

the same. But this is only in comparison with our Mishnah which actually asks and answers the

question about how to evaluate nezek; the Tosefta does not.

It seems like, in response to this, the Mishnah may be trying to align nezek with Lex Aquilia,

and in doing so generating the new idea that free people can be evaluated as slaves.22

In summary, it is possible—and in my view, likely—that the Tosefta (and indeed all other

Tannaitic texts that are not the Mishnah) imagines compensation to free people to be generated

by the same principles as iniuria, and not by those of the Lex Aquilia.

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Intentionality

The Twelve Tables seems to be concerned with objective results; intention plays little or no part,

and it treats crimes both accidental and willful. Pólay notes that in the Republican sources, no

explicit stipulation of intention was included for the iniuria cases. However, he argues this was

because the crimes covered under iniuria were always obviously intentional.23 Thus at an early

stage, intentionality was an essential part of iniuria.

Thus, the Digest is bristling with examples of this principle (D 47.10.3.1., Ulpian;24 D

47.10.4., Paulus; D 47.10.15.48, Ulpian; D 25.4.1.8., Ulpian; D 47.10.3.2., Ulpian; and see also

Justinian’s Codex, C 9.35.5.). It can also be important for Lex Aquilia (D 9.2.9.4., Ulpian; D

9.2.5.4., Ulpian), but the latter is broader since it can also include negligence (D 9.2.5.1.,

Ulpian).25

In our Mishnah, the requirement for intentionality in determining boshet is expressed as

exegesis on “Shalhah yadah” from Deuteronomy 25:11 (the most explicit case of talion in the

Torah). This midrash is taken from from Sifrei Devarim 292, and Midrash Tenaim Devarim 25.

However, this exegesis is not brought in the Tosefta, and the Yerushalmi includes a series of

different derashot based on the same verse with different results, derived from Sifrei Devarim

293, and represented also in Midrash Tanaim Devarim 25.26 Further, neither Leiden nor Escorial

actually quote the end of this Mishnah, seeming to replace its derash with this alternate view! It

is very hard to know what to make of this: is the Yerushalmi trying to explicitly disagree by

replacing the Mishnah’s exegesis with the other half of its sources? Or are they trying to cover all

bases by bringing the other half, not quoted by the Mishnah? I think there’s no way to tell and it

would be easy to read too much into the Yerushalmi’s silence on this issue.

This leaves us with an open question: what does the Tosefta think about intentionality in

boshet, since it quotes neither school of midrashim on this verse? Perhaps implicit in the words

bushah and bizayon, the terms in the Tosefta for embarrassment, is intentionality. This would be

similar to the earlier Roman sources that also did not specify the requirement, but that did not

mean it was not necessary. But we cannot answer this with the information so far presented. Let

us instead turn to the place of intention in the other four categories and see if it can be used to

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answer our question.

Our Mishnah never states a requirement for intentionality in the other four categories.

However, there is one mishnah which may imply this. We will discuss it and its parallels in the

Digest and Tosefta (also, see Paulus 5.4.2.).

Mishnah Baba Kama 8:4

A deaf person, a lunatic, and a minor—their meeting is bad: one who injures them is liable; but if they

injure others, they are exempt.

D 47.10.3.pr-1., Ulpian

It is said, by way of reciprocity, that those who can suffer an injury can also commit it.

(1) There are, however, some persons who cannot do this, for example, a lunatic, and a minor who is not

capable of criminality, since they can suffer injuries but cannot commit them; for as an injury can only take

place with the intention of him who commits it, and the result will be that such persons, whether they resort

to blows, or use insulting language, are not considered to have committed injury.

The direct comparison of these two sources should be somewhat striking. Both exempt

lunatics and minors from committing injuries.27 They also both do this with a very similar

structure: by mirroring the two cases, treating together the people as perpetrators and victims.

The break of reciprocity (that people who injure are liable for injuries), normally a part of

iniuria, is expressed in the Mishnah as pegi’atan ra’ah—but it clearly expresses the same idea.

The Digest here makes their exemption specifically about the intention required to commit

the injury. What does our mishnah think about this? Why are these people exempt?

I think essentially, you could argue for two possibilities: (i) it is about intention—just as in

Roman law—for all cases of habalah;28 (ii) it is about mental capacity, not intention; after all,

someone with full mental capacities would still be liable for damages they inflicted

accidentally.29 On the other hand, it’s important to remember that the Roman sources may think

this also: just because someone who is mentally capable is exempt from iniuria without

intention, they are still liable for the damage they inflict accidentally under something like Lex

Aquilia. Once again, the Mishnah’s combination of these two distinct areas of Roman law leads

to ambiguity in how to apply our knowledge from the Roman sources to the Rabbinic ones.

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We are thus left with not knowing exactly how much intention plays a hand for the Mishnah

in habalah writ large.

Let us briefly deal with the Tosefta parallel before moving onto the question of intention in

the Tosefta.

Tosefta Baba Kama 9:13

One who injures a deaf person, a lunatic, or a minor, is liable in four items and exempt from boshet, since

they do not have boshet.

Rabbi says: I say a deaf person has boshet, a minor does not have boshet, and, [as for] one who injures a

lunatic: sometimes he has boshet, and sometimes he does not have boshet.

A blind person—Rabbi Yehudah says: He does not have boshet; but the Sages say: He has boshet.

This source is actually drastically different from the Mishnah and the Digest above:

1. It never addresses the case of people without boshet damaging others—would they be

exempt according to the Tosefta?;

2. There is no discussion of the blind person being exempt in Roman law or the Mishnah;

3. It makes the injured deaf, lunatic, and child exempt from receiving boshet, which the

Mishnah never does;

4. It also includes Rabbi’s dissent from the majority, which would bring it closer in line with

the Mishnah (not precisely, since they seem to disagree on the deaf person and child).

Point 1 would suggest that this has nothing to say about the role of intention, since we don’t

know if they’re liable as perpetrators. However, I would like to suggest that there is an ambiguity

in the phrase “he has boshet” or “he does not have boshet”. Does this mean only that others who

injure them are exempt from boshet? Could it, rather, be the same as the Digest’s claim above,

that in general the capacity of injuring and being injured are linked? In other words, does it mean

“the experience of boshet”, or the “capacity to operate in the laws of boshet”? The wording of

this section suggests the former, but it does not rule out the latter.30

Other places in this chapter also fail to decide the issue.31

In summary, both the Mishnah and the Tosefta on our chapter could be read as making

intention a requirement to be liable for all five categories. The Mishnah certainly requires

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intention for boshet; the Tosefta is not explicit about this issue and could be read either way.

The fact that both of these readings are possible, however, seems surprising in light of other

Rabbinic literature, since the question of intention for nezek is dealt with decidedly in the

Mekhilta de-Rabbi Yishmael. In at least two places, the fact that accidental injury incurs

monetary payment is made abundantly clear!32 Similarly, a derash in the Yerushalmi (6b)

explicitly entertains a distinction between intentional and unintentional injury, and rejects it—

saying that all nezek, intentional or unintentional, requires a monetary payment (paraphrasing

some of the earlier midrashic material).

Are we supposed to read the Mekhilta and/or the Yerushalmi into the Mishnah and Tosefta?

Maybe, but the fact that this is not a necessary reading of the sources should be cause for pause.

Had we not known the Roman law, we may not have read so closely and just assumed con-

formity with the other sources. Knowing the Roman law makes us ask a question me may not

have asked, and realise that the sources are not as clear as we might have thought.

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Rank of perpetrator and victim

In Roman law, the punishment for iniuria was always dependent on the rank of the people

involved (D 47.10.15.28., 47.10.17.3., Ulpian; D 47.10.45., Hermogenianus; Paulus 5.4.10.). In

many cases, the disparate ranks of the litigants would upgrade a normal iniuria to one that is

particularly serious (atrox).

Several phrases in our Tosefta and Mishnah indicate the laws are based on social rank, but all

of them have textual difficulties. To further compound the matter, both works include fixed fines

that appear to be for boshet payments.33 I will endeavour to explain each ambiguous phrase, as

well the relationship between the variable payments and the fixed fines.34

Mishnah Baba Kama 8:1 (end)

Boshet—everything is according to the one who embarrasses and the one who is embarrassed.

This phrase actually appears twice more in the Mishnah. We will see that in both of the other

sources, this phrase has consistent meaning.

15

Mishnah Arakhin 3:4

With the raper and the seducer, [the penalty] can be lenient or serious. How so? One who rapes or seduces a

great priestly woman or an insignificant Israelite woman, he gives fifty selaim. For boshet and pagam,

everything is according to the one who embarrasses and the one who is embarrassed.35

Mishnah Ketubot 3:7

Which is boshet [for a raped or seduced woman]? It is all according to the one who embarrasses and the

one who is embarrassed.

Pagam? They see her as one who is a slavewoman being sold, [and compare] how much she was worth,

and how much she is worth [now].

Fine? It is equal for all people.

Anything which has a measure in the Torah is equal for all people.

Both of these sources are regarding the payments for a raped or seduced woman. So how do

the boshet payments work in this situation? The rapist and seducer has a fine that they have to

pay (to the men who control the woman) according to the Torah. On top of this, the Mishnah

imposes a variable payment taking into account the social class of the woman and the

perpetrator. Thus, the phrase confirms that our reading of our Mishnah is indeed similar in this

regard to the Roman law—compensation for injury depends on social class.

However, just as in the rape and seduction case where the variable fines are on top of fixed

fines, perhaps it is possible that here too the boshet is an additional payment on top of a fixed

fine? There are at least two possible ways of understanding this interpretation:

1. The fixed fines are those listed in Mishnah 8:6. This line would then be coming to clarify

the relationship between the fixed fines and the variable boshet payment: you pay both.

The difficulty here is that these fines, unlike those of rape, are not mandated by the Torah

(though the Tosefta version of this may mitigate this issue, see below).

2. The fixed fines are the nezek payments, which the Mishnah thinks are objective assess-

ments based on slave market prices (perhaps we could include the other three categories

also, which also have somewhat objective measurements). The strength of this option is

that these fixed fines are indeed mandated by the Torah. We are then left with having to

explain the fixed fines of 8:6.

16

I suspect option 2 is the most likely interpretation of the Mishnah, but we will return to

option 1 for the Tosefta.

Next to the fixed fines is also a cryptic phrase (8:6): “Everything is according to his

honour”.36 The vast interpretative problem is that a variable fine contradicts the fixed fines above

and the story of Rabbi Akiva below, who fines someone for exactly the amount proscribed

above! What is this phrase supposed to mean?

Again, we can turn to a mishnaic parallel to understand it. After describing the various things

a man is required to provide his wife with through an agent, the anonymous mishnah clarifies:

Mishnah Ketubot 8:9

… When do these words apply? Regarding the poor of Israel. But regarding the honoured, everything is

according to his honour.

“Honoured” here must mean, essentially, wealthy. Here, this phrase comes to clarify that all

the laws in the previous mishnah were actually the minimum amounts required—one is required

to do more, whatever is appropriate to their economic status.

Transferring that meaning here, it would also imply that the listed fines are the minima. If the

people37 involved in the case required it, then the fines would be greater. With only one example

to compare to, however, it is also possible that these are maxima.

It is also interesting to note—and hard to draw any conclusions from—that neither of these

lines are quoted or discussed in the Yerushalmi manuscripts. Instead, it brings more fixed fines—

not mentioned in the Tosefta or Mishnah—for other actions (8:6 / 6c), generally of much lower

value than those of the Mishnah and Tosefta. How are these fines integrated with the boshet

payments? Are these even specifically boshet cases at all? After all, two of the cases are

“kicking” and “kneeing”—they sound like they could be merely non-serious damages.

Immediately following these fines in the Yerushalmi is a cryptic statement of Reish Lakish:

Yerushalmi Baba Kama 8:6 / 6c

Someone said in the name of Rabbi Shimon ben Lakish: One who embarrasses a zakein, he should

certainly38 pay him the value of his shame.

[This is like when]39 a person angered Rabbi Yehudah bar Haninah. The case came before Reish Lakish

17

and he fined him a gold litra.

What is he coming to clarify? Would we not pay shame payments to a zaken? P’nei Moshe

understands this to clarify that a zakein needs additional boshet payment; this is likely the sense

of the statement, but far from obvious.

Even if it is, several questions remain unanswered. What do we mean by zakein, since it can

mean elder or rabbi? How are we supposed to judge this compared to the story below, where

Reish Lakish fines someone a gold litra for angering a colleague? How does it interact with the

principle “everything is according to his honour”? Is it a support for it—in which case, he would

be making sure we include the factor of seniority/learning along with rank—or a subversion—in

which case he would be clarifying the Mishnah is not really about rank, but seniority/learning?

These questions are basically unanswerable. If pressed on the latter, however, I would

suggest that the Yerushalmi is at least somewhat a corrective of the Mishnah’s rule. The Mishnah

seems to mean “honour=wealth”, based on the parallel discussed above; Reish Lakish is

clarifying that it is not only Roman values of rank and wealth that count, but certainly more

traditional “Jewish” values too, such as seniority and/or learning.

We have now discussed the conflicting evidence in the Mishnah and Yerushalmi. Finally, we

turn to the Tosefta, which includes a line not codified by the Mishnah:

Tosefta Baba Kama 9:12

Being embarrassed by a yakir is not similar to being embarrassed by a pagum.

First, let’s define the terms. Yakir is used of the rich in Mishnah Yoma 6:4; that seems to be

its meaning here too. Pagum is normally some kind of lineal taint (cf. Mishnah Kiddush 3:12),

but we saw above how the same root relates to damage of a raped woman, such that her standing

and marriage prospects are reduced. Thus it seems reasonable to understand it as some kind of

socially debilitating trait—whether related to lineage or not—and I offer the translation “pariah”.

This Tosefta, then, seems to be very similar to the Mishnah’s phrases above. It is also

especially evocative of Roman law—it’s not just someone’s honour, or according to the

perpetrator and victim, or other vague phrases, but it specifically calls out the rich and the

18

pariahs. In a way, the Mishnah’s version of this has been softened and abstractified compared to

the Tosefta.

The Tosefta also has a different list of fixed fines (in its language, “insulting strikes”, 9:31),

also derived from Sifra Emor 14, all of which have a fine of 400 zuz (one of which is being

slapped with the back of the hand). Here, however, the fixed fines are followed by three

prooftexts involving someone being slapped in the face—clearly as some kind of ultimate

dishonour—and there is no addendum like in our Mishnah to suggest these might be variable.

So we come to exactly the same question we had on our Mishnah. What is the force of these

“insulting strikes”? How do these interact with the principles of variability espoused above?

There are at least three options:

1. These are fixed fines in addition to the boshet payments dependent on rank, which

matches up with option 1 on how to read Mishnah 8:1 above. This has a surprising

benefit of perhaps explaining the point of the prooftexts: since the fixed fine in our

parallels were derived from Scripture, perhaps these Scriptural proofs are designed to

legitimise these fixed fines separate from the boshet payments and to require one to pay

both?

2. These are fixed fines for actions that otherwise would not be actionable under any of the

five categories, fixed regardless of rank. One possible support for this is the Rabbi Akiva

story in Mishnah 8:6: he charges a total of 400 zuz, and there is no mention of additional

boshet payments.

3. These are guidelines for how much to fine someone boshet—they are not additional to

the boshet payments, they are the boshet payments. The Yerushalmi seems to support

this: in the explanation of a baraita on 6b, one of the Tosefta’s “shameful strikes” is used

as a clear case where one would be liable for boshet (hitting someone with a roll of

papers). This also generates a sensible read of the Rabbi Akiva story.

To put this all together now, it seems to me that there is one simple way to harmonise all of

this material: the fines are example payments, giving rabbis an idea of the scope of boshet (and

perhaps also other categories from the Yerushalmi’s list?).40 This is my sense of how to read the

sources:

• The Tosefta took the actions in the Sifra and assigned a sample value to them. The editor

19

never meant for them to seem in conflict with the earlier variability. It added the proof-

texts probably because the idea of boshet was on shaky ground from the Torah alone;

they are a way of anchoring the concerns for honour in biblical language. The act of

assigning fines is also very consistent with biblical norms (and the Twelve Tables), and it

is possible this was also part of the impetus to add these here, lest one think that boshet

was arbitrary and had no basis in Scripture and its laws.

• The Mishnah also took actions from the Sifra and assigned sample values to them. It

added the line “it is all according to his honour” in order to clarify that these are not

actually fixed fines at all, but examples; this brings it line with the description at the end

of 8:1. Additionally, the Rabbi Akiva story was generated out of one of these actions—

uncovering a woman’s hair in the street—to illustrate the importance of the honour of

even low ranking Jews, as a sort of corrective for the otherwise very wealth-biased

construction of the laws.

• The Yerushalmi understood these fines as sample values and added its own list, with new

examples and new values. It also included one of those actions from the Tosefta as an

example of boshet payment, also proving that this is how it understood the received

sources.

This is not the only reading of the sources available, but I think it is the clearest, simplest,

and accounts for the most data. In the end, we are left with a law that is remarkably inline with

Roman iniuria. The main difference is that we have some examples of how much one should

pay.

12,924

Circumstances of crime

In the Roman laws of iniuria, the circumstances of the crime are vital in determining the extent

of the injury. By example, Paulus names several factors (also very similar to D 47.10.7.8.,

Ulpian/Labeo):

Paulus 5.4.10.

An atrocious (atrox) injury depends either upon the place, time, or person; upon the place, whenever it is

20

committed in public; upon the time, when it is committed by day; upon the person, when it is committed

against a senator, an equestrian, a decurion, or any other person high in authority; and whether a plebeian,

or a person of inferior rank commits the injury against a senator, a Roman knight, or a decurion, or whether

a plebeian commits the injury against a magistrate, an ædile, or a judge, or against all of them.

Later literature also names some specific locations, like the theatre, that can also be enough

to upgrade a minor iniuria to atrox (D 47.10.9.1., Ulpian).

Of course, this is immediately evocative to Tosefta 9:12:

One who embarrasses his fellow naked, thus he is liable; and embarrassing him naked is not similar to

embarrassing him clothed. If he embarrassed him in the bathhouse, thus he is liable; and embarrassing him

in the bathhouse is not similar to embarrassing him in the street. Being embarrassed by a wealthy person is

not similar to being embarrassed by a pariah. An adult who [embarrasses] is not similar to a child who

[embarrasses],41 whether it is adults who are embarrassed or children who are embarrassed.

Two of Paulus’ elements are there: place and person (time is not). An additional factor also is

present: whereas Paulus only discusses permanent status of the people involved, the Tosefta

includes their temporary state. In other words, in addition to their rank, the state they are in at the

time of injury is also taken into consideration, e.g. whether they are clothed or naked.42 The

inclusion of the bathhouse is also worthy of note, since it is a very specific example not listed in

the Roman legal sources; the Tosefta similarly does not specify the concern of private vs. Public,

though it may be there implicitly (see below).

There is, of course, a textual question we need to answer. The Tosefta never actually tells us

which of the options are worse, just that they are “not similar”. So which is it? Is being embar-

rassed in a bathhouse worse than the street? I think in the abstract, we could come up with

reasons for both sides.

Let us deal first with the case that appears clear: one of the main rules of Roman honour is

that being embarrassed by a lower class person is significantly worse than being embarrassed by

a higher class person.43 In that case, it is the case mentioned second which is atrox. Perhaps we

can read this through the entire passage that the second listed case is always the more serious of

the two?

21

The version and explanation of this baraita in Yerushalmi Ketubot 3:8 / 27d may help us

with the last case. It quotes this Tosefta and then continues:44

The shame of an adult is greater [i.e. he has to be paid more than a child if embarrassed] and his damages

are lesser [i.e. he has to pay less than a child who embarrasses]. The shame of a child is lesser and his

damages are greater.

This would support our reading of the baraita: the second case (children) is worse than the

first case (adults).

Reading this back in to the first cases, we would come to the conclusion that one who

embarrasses someone clothed would have to pay more than if they are naked, since they have

already embarrassed themselves by being naked. Similarly, embarrassing someone in the street

would be worse than embarrassing someone in the bathhouse, since by going to a bathhouse he is

already engaging in an embarrassing action—going somewhere in order to bathe naked in front

of other people—and, perhaps, because there are more people to see it in the street. This also

works well with the clarification that one is liable even for one who is naked or in the bathhouse:

those cases are so unimportant that you might think they don’t have boshet at all, but the Tosefta

clarifies that they do.

With the Tosefta alone, though this reading seems good, we would have to admit that the

opposite was also possible (that someone who was naked or in a bathhouse was in an already

vulnerable state, and thus embarrassing him would be worse than if he was not vulnerable—

clothed or in the street). But comparing to Paulus, we can perhaps add weight to this proposed

reading, since he also thinks that the more public the act is the more serious it is, and certainly

the street is more public than the bathhouse.

Let us turn to the Mishnah 8:1 (end) briefly for its additional cases, the blind person and

sleeping person. It seems that the point of our mishnah here is that you might think you would

not have to pay boshet to a sleeping or blind person, since those people may not notice that they

were embarrassed. Therefore, it tells you that they require payment, even if they did not actually

experience any shame.

This clarification is reminiscent of this passage in the Digest:

22

D 47.10.3.2., Ulpian

Hence, anyone can suffer an injury without perceiving it, but he cannot commit one unless he is aware of it,

even if he does not know against whom it is committed.

Not only does he agree with the Mishnah that you can suffer an injury without noticing, but

the Mishnah is actually about to go directly onto discussing the requirement of intention in

boshet; this source is thus a very close parallel. So the context of the crime is one point of contact

with remarkable accord between the Roman laws and the Rabbinic sources. It seems clear that

they share a set of cultural assumptions about the nature of shame:

• Place: The more public the location, the more embarrassment;

• Status: The lower the status of the perpetrator (and conversely the higher status of the

victim), the more embarrassment;

• When the person did not feel shame at the time: One could be liable even if no shame was

felt by the person during the time of the injury;

As Pomeranz notes,45 we also have found one major difference between the Roman and

Rabbinic laws here: it seems that the Digest would likely make someone who embarrassed a

naked person exempt from iniuria—since in the Roman system someone can give up their

honour—while our Mishnah and Tosefta both agree that he would be liable for boshet.

I also wonder whether the use of a bathhouse as an example of a light case of boshet, since he

has already embarrassed himself, gestures towards another point of difference between the two

attitudes. Does this indicate a dim view of Roman bathhouses in general?

12,924

Verbal insults

A key feature of iniuria in Roman law is that it includes verbal injury as well as bodily. Jurists

continually list cases of iniuria including many non-physical ones. Gaius has a particularly clear

(and early) articulation (see also Paulus 5.4.1.; D 47.10.1.1.-2., Ulpian/Labeo):

Gaius 3.220.

Now, contempt (iniuria) is committed not only when someone is struck with a fist or with clubs, or even

23

flogged, but also when a vocal attack is made on him, when his goods are advertised for sale as a debtor’s

by someone who knows he owes him nothing, when someone writes a defamatory book or poem about

someone, or when someone harasses a lady or a youth; and finally in many other ways.

Gaius includes a large variety of non-physical attacks in his definition of iniuria. Our

Mishnah, on the other hand, implies46 that boshet requires physical actions. The only action it

mentions specifically when introducing boshet is physical (falling from a roof), and then we have

our list of fixed fines. In a similar manner, the Tosefta also, when introducing boshet, names no

actions at all, but when discussing the fixed fines, only physical actions are included. Thus also

the Tosefta appears to imply that physical actions are required.

This evidence becomes conflicted in the Yerushalmi. When it (8:1 / 6b) explains our Tosefta

(9:1b) with different actions that lead to payments of different numbers of categories, it

concludes with a physical action that leads to a boshet payment (the roll of paper).

Later on (8:6 / 6c), a question is asked about one who spits at someone—what happens if the

spit does not reach the intended target? Rabbi Yose answers that he is exempt, using the broad

statement: “One who insults/embarrasses47 his fellow with words is exempt.” It seems thus that

Rabbi Yose and the author of those explanations certainly agrees with this reading of the

Mishnah and Tosefta, in a way that seems like a clear and broad rejection a major body of

Roman iniuria.

This is true up to here, except for one very unusual piece of datum, already quoted above:

Yerushalmi Baba Kama 8:6 / 6c

… A person angered Rabbi Yehudah bar Haninah. The case came before Reish Lakish and he fined him a

gold litra.

What exactly did this person do? This certainly could be a case of physical action that

angered the Rabbi. Perhaps he pulled his hair or slapped him, or any other of the list of actions

we have from our Tosefta and Mishnah. If so, then this wording would be extremely strange—

surely it just would have said outright “a person slapped Rabbi Yehudah bar Haninah”, and so

on? Rather, it seems better to understand that Reish Lakish holds one can be held liable under

boshet for mere insult!48

24

This should give us pause to reevaluate the earlier sources. How could Reish Lakish have

done what he did? At very minimum, it seems that the role of insult in laws of habalah was an

amoraic debate. At maximum, it could be that the implications of the earlier literature are not to

be taken seriously: when the Mishnah/Tosefta says “mevayesh”, it means embarrassing in any

way, whether in the body or with words; when it lists some actions that are liable for boshet, it is

adapting an earlier list, derived for another purpose.

What might help here is further discussion of the semantic field of iniuria and habalah. As

discussed above, iniuria is primarily insult and secondarily bodily harm (because it causes

insult). What meaning is encompassed by habalah?

Firstly, lahbol is clearly broader than “serious injury”, since it even includes trivial injuries

(T 9:1). The fact that this term introduces our chapter also implies that it encompasses all of the

five categories—at least according to the chapters’ editors. It appears to be more general than (a)

lehazik (e.g. M 8:1, where it may be identical; T 9:11, 32) or (b) lesimei and likto’a (M 8:7; T

9:17, 32)—they refer to more serious injuries, or more specific kinds of actions. Lahbol may,

however, be equivalent to lehakot (M 8:3; T 9:11 [father-son], 20, 22, 26-7, 31, where it is almost

certainly used because of the biblical texts; e.g. T 9:11 [court emissary], where it seems to be

interchangeable with lahbol)—broadly, lehakot seems to be a biblically-influenced lahbol.

Secondly, we should note that there are two terms used in these sources that are linguistically

related to one of the five categories: lehazik and levayesh. There is one other category that we

could have a verbal form of—letza’er—but we don’t (obviously one can’t injure someone using

a verb formed from shevet or ripui). As seen above, lehazik is extremely semantically similar to

lahbol. This leaves us with levayesh as the only specific verbal form related to a category. Why

the singling out of this term? What is the difference between lahbol and levayesh?

I think there are at least two answers based on the Roman sources:

1. The distinction between lahbol and levayesh is something akin to the distinction between

verberare and pulsare that we saw Ulpian make above in the Digest—lahbol is to strike

with pain, levayesh is to strike without pain. This would leave insults out of the discus-

sion, and explain why the only boshet examples (with no other applicable damages) in

our Mishnah and Tosefta appear to be examples of pulsare.

2. The distinction between lahbol and levayesh is the difference between Gaius’ physical

25

examples and his verbal ones—lahbol is to strike, causing (some kind of damage? and

also) embarrassment; levayesh is to insult (including an “insulting strike” without pain?).

The examples are derived from a slightly different discussion, and adapted for use here.

The reason these compilations included no examples of insults is not because they didn’t

think one would be liable—indeed, Reish Lakish did think one would be liable—but

because it was obvious that such actions were included in levayesh. After all, they live in

a society dominated by iniuria.

The final word is, thus, undecided. It seems to me that option 1 is slightly more likely. But

again, the fact that option 2 is even possible is extremely telling of how much Roman ideas of

iniuria have penetrated Rabbinic discussions.

12,924

Conclusion

We have seen a range of examples, some very close to their Roman parallels, some very far,

others unclear, with pro-Roman and anti-Roman readings possible. So it remains for us to ask:

how influenced are these Rabbinic texts by their Roman counterparts? Is there a distinction

between the different texts? Are some more Romanised than others? What explains the differ-

ences in approaches between them?

Obviously, there were many points of contact I was not able to cover. But I will offer some

general thoughts based on the conclusions presented here, and some first impressions in other

areas.

The Tosefta on our chapter is surprisingly rich with Roman parallels. Many of the cases and

concerns are similar. In addition to those already covered, cases discussed by both literatures

include:

• slaves, as victims and perpetrators (T 9:8, 10, 20-7; victims: e.g. Gaius 3.223-5., D 9.2.9.

all, D 9.2.27.6,17., D 9.2.27.27., D 47.10.1.3., D 47.10.15.44., D 9.2.22.1.; perpetrators:

e.g. Paulus 5.4.22., D 9.2.44.1., D 47.10.9.3., D 47.10.17.4., D 47.10.17.7.);

• wives, as victims and perpetrators (T 9:14, 22; e.g. Gaius 3.221., Paulus 5.4.21., D

47.10.15.22., D 47.10.1.2., D 47.10.9.3., D 9.2.27.30.);

• children, as victims and perpetrators (T 9:8, 10; e,g, D 47.10.7.3., D 47.10.5.6.,

26

47.10.17.13.);

• hitting a pregnant woman and causing a miscarriage (T 9:20; D 9.2.27.22.);

• causing damage to someone and killing someone else at the same time (T 9:17; D

9.2.32.1.);

• hitting someone who ought to have survived, but then died (T 9:5-7; D 9.2.7.5., D

9.2.15.1., D 9.2.47.);

• injury taking place during instruction (T 9:11; D 9.2.5.3., D 47.10.15.38.);

• self-defence (T 9:16; D 9.2.45.4., D 9.2.52.1.);

• negligent doctors (T 9:11; D 9.2.5.3., D 47.10.15.38.).

Several things should be clear about these comparisons. First, many of the cases are not

identical, but reveal similar concerns and similar analyses—comparing two texts is not to say

that the outcome is the same. Indeed, one of the sharpest divergences of Rabbinic law from

Roman law is how to deal with injuries to, and murders of, slaves.

Secondly, a great many of these cases are not represented in the Mishnah (such as the

discussion of evaluations and unexpected results), and some which are dealt with at great length

in the Tosefta are only dealt with in passing in the Mishnah (such as laws of slaves, also dealt

with much more extensively in the Yerushalmi). That makes the parallels even more noteworthy,

since some but not all Rabbinic texts refer to them, or dwell on them.

Thirdly, just a cursory glance shows that the volume of some of these topics seem correlated.

A large portion of the Tosefta deals with slaves; a vast amount of Roman literature is devoted to

them. Other cases, like causing a miscarriage or negligent doctors, receive small amounts of

attention in both literatures (even though the pregnant woman is the paradigmatic case of talion

in Mishpatim, so you might expect it to get a lot of treatment just based on the Torah precedent).

Finally, this is not to elide the many subjects dealt with only in one of the literatures and not

the other. For example, libellous songs, one of the foundational cases of iniuria in Roman law, is

never mentioned in Rabbinic literature; nor are other important cases, like being shouted at by a

crowd, or a matron being deprived of her attendant. So too, the Rabbinic texts evince their own

concerns. Self-harm is not discussed in the Roman literature, nor is forgiveness, nor (for obvious

reasons) causing damage under the compulsion of non-Jews. Also, many of the details even in

cases dealt with in both literatures reveal particular concerns to each side—much of the attention

27

on slaves in the Tosefta is focussed on when they go free because of their injuries, but since there

is no corresponding law in Roman literature, no attention is given it.

Add to this the detailed evidence presented heretofore—the fact that, in general, the Tosefta

can be read as upholding whole areas of Roman jurisprudence regarding iniuria, even while

those conclusions are uncertain—and I think we can begin to build a picture of broad similarities

between the Tosefta and many of the Roman sources, as preserved in Gaius, Paulus, and the

Digest. As a general rule, it seems that when the Tosefta diverges explicitly from Roman norms,

it is because of biblical precedent. This is as you would expect for two highly casuistic legal

systems. Similarly, when Roman law diverges from the Rabbinic discussions, it is often guided

by the sources of iniuria and property damage that we discussed above.

Compared to this, the Mishnah is decidedly counter-cultural. Firstly, it creates a principle of

evaluating free people as slaves—indicating a certain disregard for the free person’s honour. It

also is much more specific as to how one evaluates injury, much more than the Tosefta, much

more than Roman iniuria, creating as objective a guideline as it can for all five categories. And

even in the most variable and the most tied into concerns of honour—boshet—it first has softer

language than the Tosefta, and then introduces serious correctives through the mouth and actions

of Rabbi Akiva—all Jews should be considered honourable. At the same time, it betrays new

Roman influence, such as the requirement of intention in boshet—at most implicit in the Tosefta.

Of all the sources under discussion, it also displays the most structural similarities to the Roman

texts (even while the content may diverge).49

The Yerushalmi expresses a similarly complex picture of influence and resistance. Perhaps

against the earlier sources, Reish Lakish fines someone for an insult. While the Tosefta implied

that damages to a slave are paid to the slave,50 Rabbi Yohanan in the Yerushalmi (8:3 / 6b-c) says

that damages go to the master—in line with the Roman Lex Aquilia. The setam also, at the end of

the chapter (8:7 / 6c), imagines that we can evaluate the impact of a person’s actions regarding

their own honour in relation to the shame of his family and relatives, evocative of the way iniuria

was imagined as an insult to the pater familias. On the other hand, Rabbi Yose rejects one of the

central tenants of iniuria when he says that insults are not actionable by law.

What explains these differences between the Rabbinic sources? It is hard to know, especially

as the circumstances of their production are more or less entirely unknown. But it seems from

28

this analysis that the Tosefta was deeply influenced by Roman laws, as was the Mishnah

(although its editor had more misgivings). By the time of the Yerushalmi, some Roman norms

have infiltrated further, even while others are starting to diverge. It would be extremely instruc-

tive were similar attitudes to be found elsewhere between Rabbinic and Roman law. Clearly,

broader investigation would be a great boon.

Pomeranz in the first part of his essay proposes two tantalising similar institutions between

Roman and Rabbinic law: boshet and iniuria, nezek and Lex Aquilia. I hope that I have been able

to seriously complicate this picture—especially in light of the other Eretz Yisraeli sources—

showing that these categories are not clear-cut in the transference from one legal system to

another. Rather, this investigation reveals a deep and complex interplay between Roman and

Rabbinic legal thinking.

12,924

Works Cited

W. M. Gordon, O. F. Robinson, The Institutes of Gaius. London: Gerald Duckworth & Co. Ltd.,

1988.

Amit Gvaryahu, “Dinei Habalot be-Torat Ha-Tanaim” (M.A. thesis, Hebrew University in

Jerusalem, 2013).

Allan Chester Johnson, Paul Robinson Coleman-Norton, Frank Card Bourne, Ancient Roman

Statutes: Translation, with Introduction, Commentary, Glossary, and Index, ed. Clyde

Pharr. Austin: University of Texas Press, 1961.

J. E. Lendon, Empire of Honour: The art of government in the Roman world. Oxford: University

Press, 1997.

Saul Lieberman, Tosefta Ki-Fshutah: Order Nezikin. New York: Jewish Theological Seminary of

America, 1988.

29

Charles Henry Monro, The Digest of Justinian. Cambridge: The University Press, 1909.

Elemér Pólay, Iniuria Types in Roman Law, trans. József Szabó. Budapest: Adadémiai Kiadó,

1986.

Jonathan A. Pomeranz, “The Rabbinic and Roman Laws of Personal Injury,” AJS Review 39:2

(2015): 303-331.

Elijah Samson Rosenthal, Saul Lieberman, David Rosenthal, Yerushalmi Nezikin. Jerusalem:

Hebrew University, 2008.

S. P. Scott, The Twelve Tables, The institutes of Gaius, The Rules of Ulpian, The Opinions of

Paulus, The Enactments of Justinian, and The Constitutions of Leo. Cincinnati: The

Central Trust Company, 1932.

Ethan Tucker, Matrilineality and Patrilineality in Jewish Law and Community: Part 1. New

York: Mechon Hadar, 2015. Published online: http://www.mechonhadar.org/torah-

resource/matrilineality-and-patrilineality-jewish-law-and-community-part-1

1 I have tried to look at a range of translations of the Roman sources. When all else failed, I relied

on S. P. Scott (his translations are complete, but lacking). For Gaius, I used Gordon and

Robinson. For the Digest, I sometimes supplemented the translations from Monro. For the

Twelve Tables, I used the more recent translation of Johnson, Coleman-Norton, and Bourne

(Pharr, ed.).2 Pólay, pp. 39-41.3 For this interpretation of the Twelve Tables, see Pólay, pp. 71-77.4 Pomeranz, p. 314.5 See Pólay, p. 116, for background.6 We also have the case of a crowd shouting at someone in D 47.10.15.4., Ulpian—see Pólay pp.

102-3 for discussion.7 Not slaves, see Pólay, p. 118.8 See discussion of Pólay, p. 123.

30

9 Translation is New JPS.10 The most general statement of the retaliation principle for cases of injury in the Torah is

Leviticus 24:17-22, where it is likely that it is meant literally. Still, meaning it literally and

actually carrying it out in practice are two very different things.11 This is NJPS’ interpretation; the Hebrew is ambiguous.12 See use of tahat in vv. 26, 36, both of which refer not to literal retaliation but monetary

compensation. Also see code of Tiglath-pileser I, http://legacy.fordham.edu/halsall/ancient/

1075assyriancode.asp.13 Though we are focussing on the literature of Eretz Yisrael, this observation holds true for this

chapter in the Talmud Bavli as well.14 See discussion in Steven T. Katz (ed.), The Cambridge History of Judaism: Volume 4, The

Late-Roman Rabbinic Period, p. 668.15 For determining the correct text of the Tosefta, I have used Lieberman’s edition. For the

Mishnah, I have used the standard Bar Ilan versions, but referred to the Kaufmann manuscript if

there are meaningful changes. For the Yerushalmi, I compiled a compound text of ms. Leiden

(from Sussman) and ms. Escorial (one that is missing much, but is thought to be very authentic

to the Palestinian Rabbinic tradition, put together by Lieberman and Rosenthal). The midrash

texts I discuss I have referred to the Bar Ilan text. All translations of Rabbinic texts are my own.16 Pomeranz, pp. 313-315.17 In this vein, Lieberman, p. 92, says that the question should be, “How does a nezek payment

interact with the two kinds of shevet payments?”18 Pomeranz, pp. 321ff.19 Also demei eivarav referred to in the Tannaitic midrashim, see for instance Mekhilta de-Rabbi

Shimon bar Yohai 21:25.20 There is likely another factor at work: that the rule only became problematic when actually

implemented, which it does not appear to be so until Bavel. This would be consistent in what we

already know about the power of rabbis in Bavel versus Eretsz Yisrael in this period, and the

increasingly canonical status of the Mishnah. We should also specifically note that there is not a

single anecdote of nezek in the pre-Bavli literature, only of boshet cases, and of those only two:

Rabbi Akiva and Reish Lakish (we will return to these below).

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21 Tosefta Baba Kama in two other places (4:7 and 6:21) mentions the phrase “kamah hu yafah”,

which would sound similar to our Mishnah. But in neither case is anything about slaves

mentioned, and the phrase is generic enough to not question the conclusions here.22 See also Ketubot 3:7 which evaluates a woman as a slave for calculating pagam, which would

have been seen as much less problematic than evaluating a free man. Perhaps the rule in the

Mishnah is an extrapolation from the rape case? This would require more research into Mishnah

and Tosefta Ketubot. We will return to this parallel later.23 See Pólay, pp. 52-69, for discussion of the Twelve Tables; p. 114 for a list of pre-Classical

iniuria cases and his discussion.24 Likely not authentic to Ulpian. See Pólay pp. 96-10125 See Pomeranz, p. 308, for his discussion of this issue.26 From the strain of tradition that reads this section as about the rodef (in the schools of midrash,

this is Rabbi Akiva, as opposed to Rabbi Yishmael who is interested in deriving the five

categories from the Torah). See Gvaryahu, pp. 42-43.27 Noticed by Pomeranz, p. 314.28 Not just boshet, as Pomeranz says, p. 306. We would need to explain the second half of our

mishnah about slaves and wives, not parallelled in this way in the Roman sources. However, this

is not of much difficulty since the Mishnah itself breaks the connection between the two halves.

Wives and slaves are exempt for a reason that has nothing to do with intention. Rather, it is

because they are under someone else’s control and do not fully own property. That is why they

have to pay once they are no longer under the power of their husband/master. In contrast, the

lunatic and minor are always exempt and never pay.29 Additionally, the fact that the Mishnah only derives intention for boshet may imply that it does

not think intention matters for any of the other four categories. On the other hand, it may think

intention matters in general but only needs to be proven for boshet.30 You might say that Tosefta 9:12 (to be discussed below) also rules out the latter, since it

suggests that minors can embarrass others. But this may not decide the issue, since it also

suggests that minors can be embarrassed, which would be a direct contradiction of this halakhah

under discussion. It is therefore likely that they are just two contradictory traditions.31 Here are some examples and brief discussion:

32

9:15 deals with the case of someone who intended to kill but injured someone instead—they are

liable for payment. This could suggest that it is actions that matter over intentions, since he did

not intend to wound. However, perhaps since he already had intention to kill, the intention is

counted here to wound also.

9:20 deals with the case of dmei vladot, the amount that someone is liable to give the father for a

miscarriage, and the paradigmatic accidental case in Mishpatim. This seems to be a case when

someone is liable for payments despite it being accidental. However, dmei vladot is specified in

the Torah which does not take intention as a significant factor here; it is also not one of the five

categories. Thus it has enough differences for us not to be able to learn the general rule for

habalah.

The emphasis on wounding someone “more than appropriate for them” turning a lenient verdict

into liability (9:10-11) could suggest that it is results that matters. On the other hand, it could be

that wounding someone “more than appropriate” reveals that the true intention was, in fact, to

wound.

Finally, 9:18 specifies that someone who strikes their mother or father accidentally is still liable

for the death penalty. This suggests that it was considered at least plausible that accidental

damage was considered exempt. But again, this is a special case, to which the Torah specifically

grants a death penalty.

One additional case perhaps has something to say about our question, but the textual problems

are so immense that it is far from clear (for which, see Lieberman, p. 109). One possible

reconstruction (based on Tosefta Shevu’ot 6:2) is that Rabbi Yehudah makes the law dependent

on whether the litigants are friends or not (hovevin), which is very similar to the question of

whether they actually intended damage. Other manuscripts say that he is talking about wrestling

(hokhekhin), perhaps literally(?) or in court (Lieberman’s interpretation). Making sense of this

text will require further research.32 Masekhta de-Nezikin 8 records Rabbi Eliezer’s opinion, who makes one liable for talion if it

was intentional, but liable for money if accidental. Ibid. 14 derives that nezek is in general

independent of intention.33 See Pomeranz, p. 308, for his discussion of this issue. He notes the tension in the Mishnah but

does not try to resolve it.

33

34 The list of actions are derived from Sifra Emor 14, which is a derivation of being liable for

painless strikes, though no fines are listed. We will refer to this below.35 The phrase is then used in the next mishnah to refer to the wife whose husband falsely claims

she was not a virgin; the passage is stranger and not necessary to prove the point here. There too

a fixed fine is imposed by the Torah.36 Note that “zeh ha-k’lal”, the strangest part of this phrase, is not in ms. Kaufmann. I will not

deal with it in this discussion.37 Note that the phrase is ambiguous as to whether the victim, perpetrator, or both are meant. It

seems like a clear transposition from Ketubot, where there is only one man (the husband) and

thus the phrase is unambiguous.38 This is trying to capture the doubling of notein and meshaleim in the Hebrew.39 Introductory word in ms. Escorial and absent from ms. Leiden.40 I said above that I will endeavour to read the Tosefta as an independent text. Here, this seems

better because this interpretation explains all the sources; in other cases, it can only explain some

of the sources. Additionally, there is no parallel with Roman law at stake in this question of

reading—it is just the extent to which the parallel exists, not the existence itself.41 For this reading of the difficult text before us, see Yerushalmi Ketubot 3:8 / 27d.42 It is certainly possible Roman estimates of iniuria included these factors, just as it is that

Rabbinic law included time of day. All I am noticing is their explicit absence from the sources.43 Lendon, pp. 30-36 for introduction.44 See Lieberman p.100 where he discusses the difference between the Yerushalmi’s interpreta-

tion of the latter phrase and that of the Geonim.45 Pomeranz, p. 309.46 Cf. Pomeranz, p.308, who asserts this, but actually it has to be inferred from our Mishnah.

When falling from a roof, it uses the verb hizik and not mevayesh—so is it a paradigmatic case of

boshet? As for the actions from Sifra, who says this is an exhaustive list of boshet cases? Their

very derivation in the Sifra was about painless strikes, not to cover all cases of boshet. (You

could also bring the Yerushalmi’s case on 6c, which is about to be discussed; see below).

There is another piece of (speculative) evidence to be brought in favour of Pomeranz’ claim: the

prooftext for deriving boshet is a case of action—“ve-hehezikah bi-mvushav”. Should this fact be

34

read through into the Mishnah and Tosefta? This is far from certain, though possible; but do note

that the Mishnah uses this verse in order to prove something else.47 Ms. Escorial has mevazeh (translated “insults”) here, while ms. Leiden has mevayesh. There is

probably no difference between these two terms, especially once I explained earlier the makkot

shel bizayon in the Tosefta as examples of boshet. However, it is possible that the difference is

not just semantic.48 Also see Jastrow, p. 1398, who translates the word akpid as “insulted”.49 I know of at least one other place where this is the case, and that is Mishnah Kiddushin 3:12,

compared to Ulpian. See Tucker, pp. 10-15. This would be a fascinating trend to study.50 Not enough room for a full discussion here, but suffice to say that a comparison of the unusual

phrase motzi’in mi-yado in T 9:8 with 9:14 suggests the Tosefta imagines the money going from

the perpetrator to the master, and then the court takes it and gives it to the slave, presumably as

some kind of trust-fund (segulah).