Plato’s teacher, Socrates, supposedly had a shrewish wife named Xanthippe. Shakespeare, in The Taming of the Shrew, compared his protagonist Katherina with her:
Be she as foul as was Florentius’ love,
as old as Sibyl, and as curst and shrewd
as Socrates’ Xanthippe or a worse . . .
Just how bad was Xanthippe? In the third century CE, Diogenes Laertius recalls this anecdote or chreia in his Lives of Eminent Philosophers: “When Xanthippe first scolded him and then drenched him with water, Socrates’ rejoinder was, ‘Did I not say that Xanthippe’s thunder would end in rain?’” Aelian, in the third century CE, reports, “Alcibiades sent Socrates a large and beautifully made cake. Xanthippe was annoyed in her usual way . . . so she emptied it out of the basket and trod on it.” Or again, Diogenes Laertius:
When Xanthippe tore his coat off his back in the market place, his acquaintances encouraged him to hit back; “By Zeus!” he said, “So that while we fight you may cheer, ‘Good, Socrates!’ ‘Well done, Xanthippe?!’ ”
This cavalier misogyny is fairly typical of Hellenistic literature of the period. Sadly, it is mirrored in rabbinic stories. Here is one about Rabbi Yosé of Galilee and his wife, told in the fifth-century Midrash Leviticus Rabbah (34:14):
Rabbi Yosé the Galilean had a shrewish wife who used to scold him in front of his students. They said to him, “Rabbi, divorce her as she does not honor you.”
He said to them, “Her bride-price [pherne] is more than I can afford, so I cannot divorce her.”
Once he was studying with Rabbi Elazar ben Azariah. When they had finished their studies Rabbi Yosé said, “Would the Master attend to me by coming to my home?” He replied, “Yes.”
When they entered his house, she turned her face away from them and left them. Rabbi Yosé saw a pot on the stove. He asked his wife, “Is there something in the pot?”
She replied, “Stewed fruit.” Yet when he lifted the lid he found a chicken fricassee. Rabbi Elazar ben Azariah knew what he had heard. He asked him, “Did she not say ‘stewed fruit,’ yet there is chicken?”
Rabbi Yosé replied, “It’s a miracle!”
When they had finished eating he said, “Master, divorce your wife, for she does not honor you.”
He replied, “Her bride-price [pherne] is too much and I cannot afford it.”
Rabbi Elazar said, “We will raise the funds for her bride-price [pherne] so you may divorce her.”
They collected the bride-price [pherne] and he sent her away.
Four times in this short narrative about Rabbi Yosé and his wife, her bride-price is mentioned. Each time, the Greek term pherne is used in place of the common Hebrew term ketubah, which reflects the legal situation in the time of Rabbi Yosé. In Jewish law, a woman’s bride-price must be paid if her husband seeks divorce. Indeed, her dowry principal must also be restored, which gave women some bit of financial protection. The entire financial package is referred to in our Midrash by the Greek term pherne, which the later rabbis used to represent the two separate legal obligations: one of the bride-price given to her by her new husband as a marriage gift, the other of the dowry she brought into the marriage. Both sets of funds were hers, but her husband could benefit from any proceeds earned from their value during the marriage. Perhaps the requirement to restore the wife’s capital to her control offered a woman some protection from abrupt divorce.
In rabbinic law, the right to initiate divorce remained the province of men. In Roman law, by contrast, women were granted the right to initiate divorce. The rabbis themselves recognized this difference when they wrote (Gen. Rabba 18:5): “Rabbi Yohanan says, ‘Among the gentiles . . . his wife divorces him, she gives him a repudium.’” The Latin term, transliterated by the rabbis into Hebrew for the wife’s repudiation of her husband, is attested in both Greek and Latin documents from that era. In the early 1960s, Israeli archeologists uncovered a stash of letters dating from the second century CE at Nahal Hever, a few miles south of the Dead Sea. Written on papyrus, they are mostly in Greek, with a few Aramaic and Nabatean letters thrown in for good measure. The texts, from the cleverly titled “Cave of Letters,” are a treasure trove of information about the lives of Jewish women in Roman antiquity. A Jewish woman named Babatha left behind her personal archive, which dates from 120 to 132 CE. We also have papyri that document the life of her contemporary Salome Komaise. In both cases, these women rely on Greco-Roman rather than early rabbinic forms for their marriage documents. That way, they were better protected than was Rabbi Yosé’s poor wife. So it is noteworthy that the rabbis use the Greek term pherne, even as they refer to their own rabbinic marriage stipulations.
Under both Roman and Jewish law, as indicated by the documents Babatha and Salome left behind, women were granted alimony—literally, a food allowance. In cases of Jewish law, a dead husband’s estate was directed to his offspring, and so their mothers conceivably might not be provided for beyond her bride-price and dowry. In such cases courts were called upon to determine appropriate alimony. It was presumed that a woman’s pherne provided her needs, while the children would be provided for by their father’s estate. The Jerusalem Talmud (Ketubot 5:7) reports a marvelous story of a wealthy woman who came before a rabbinic court to sue for her right to continue to be provided for in “the style to which she had become accustomed.”
A case is cited regarding Martha bat Boethius. The sages ruled that she could receive two barrels of wine as daily alimony. . . .
Rabbi Hezekiah quoted Rabbi Abbahu in the name of Rabbi Yohanan, “They also ruled about a daily cooked-food allowance.”
Despite this, she cursed the court, saying, “You should only give this to your own daughters!”
Rabbi Akhah said, “We all replied to her, ‘Amen!’”
I am suspicious that this story is not an actual court case but, rather, a rabbinic fiction or even a joke, given the “amen” punch line at the end of the narrative. In the papyrus documents left at Nahal Hever, we learn that Babatha, too, sued for her food allowance. Martha bat Boethius was a possibly fictional character known in rabbinic storytelling for her fabulous wealth, while Babatha was a decidedly real woman who left actual Greek court documents behind.
Although the rabbis do not like to admit it, there were plenty of real Jews like Babatha who paid little to no attention to rabbinic family law, choosing rather to take their chances in Roman courts. Indeed, many of those Jews had non-Jewish spouses, so the Roman court was a preferable venue, as the rabbis recognized only marriage between two Jews as binding under their purview. Even so, the question remained as to how the rabbis might view the offspring of a mixed union. Earlier in this book we read about an errant student who ruled in Tyre that the offspring of a Jewish father and a non-Jewish mother could be circumcised on Shabbat. This was tantamount to declaring the baby wholly Jewish, as only for a Jew could the command for circumcision on the eighth day (Gen. 17:12) take precedence over the command to observe the Sabbath (Ex. 20:10). Unfortunately, that student got rabbinic law wrong and was whipped by his rabbi.
Yet the boy had a point. The Torah consistently follows the tribal identification of the father—what is called patrilineal descent. Josephus, writing in Greek in the late first century CE, also assumes that the offspring of a marriage between a Jewish father and a Gentile mother is Jewish. Philo, for his part (and in this he finds support from later rabbis in Babylonia), considers such a child to be illegitimate, using the Greek term nothos, often translated as “bastard.”
It is only from the time of the Mishnah (ca. 200 CE) onward that the rabbis become zealous in their insistence that Judaism follows the religion of the mother, and not the father—what is called matrilineal descent. For the rabbis—even Orthodox and Conservative rabbis today—a child’s Judaism is determined by the Judaism of its mother. We know when the shift occurred—sometime between the first and
second centuries—but we are not at all sure why it shifted.
My colleague, historian Shaye J. D. Cohen, notes that in Roman law, the citizenship of a child follows that of its father, much as was the case for Jewish identity in the biblical era. But under Roman law, when a marriage does not have formal legal status, then the child’s Roman identity follows that of the mother. Cohen suggests that this law, promulgated just before the editorial date of the Mishnah, is a possible source of origin for the matrilineal principle in Judaism. He suggests that this law of Roman citizenship, which was matrilineal, was transferred to the rabbis’ consideration of who is a Jew. Given that Cohen’s only other suggestion for the shift comes from the principles of animal husbandry, I find this a considerably more tasteful attribution.
Of course, we expect that children are cared for by both of their parents. But in the Roman and rabbinic worlds, men had stronger standing in court and so could better represent their children’s legal and financial interests. A woman and child both needed a designated guardian in the absence of the pater familias. Such a guardian was called, in both Roman and rabbinic documents, by the Greek term epitropos. The term in Roman law describes the court-appointed legal guardian who is the curator of the finances and well-being of the minor. The epitropos can also be the estate and financial agent who cares for the property of others. This was especially important when women owned property, as they were often not legally allowed to act on their own behalf. In those instances the Roman court or the rabbis would appoint an epitropos to serve as business or real-estate agents on the woman’s behalf. Yet the term can also refer to an imperial office, such as that of the Roman procurator. A Roman law from the beginning of the third century uses the term referring to Jews, as it tries to determine their status in serving in imperial offices and Roman court-ordered guardianships. It reads, “Jews as well shall serve as epitropos to non-Jews, just as they are required to perform the other services . . .” At least until the advent of Christianity, Jews held legal status on a par with other citizens of the empire.
In rabbinic literature the term epitropos is simply transliterated from Greek and is preserved in both the Talmuds. The Babylonian Talmud (Bava Metsia 39a) speaks of a “court-appointed epitropos.” The Palestinian Talmud (Terumot 1:1, 40b) distinguishes between a permanent and temporary epitropos. The Babylonian Talmud (Shabbat 121a) also makes reference to an imperial epitropos. But the elasticity of the term in rabbinic literature is piquantly captured by the lament, “There is no guardian [epitropos] against unchastity.” Apparently, even in the ancient world, when a young couple is bent on making whoopee, no chaperone can stop them.
There seems to have been a good deal of rabbinic family law, even some laws that stand in contrast to the prevailing Roman norms, such as those regarding divorce initiation. Influence is a complex phenomenon, for even as Roman legal tendencies may have penetrated rabbinic jurisprudence, the Roman rulers nevertheless may have sought to limit rabbinic jurisdiction in favor of their own imperial authority. Professor Amnon Linder suggests that “the Jewish leadership had enjoyed a considerable judicial autonomy”; but he also thinks that it all came crashing down when the Roman emperor Arcadius issued a law called an imperial constitution in 398 CE, limiting Jewish authorities to passing judgment only on “matters of religion.” Everything else came under the purview of the Roman authorities.
Professor Jill Harries, by contrast, writing about the same exact imperial constitution, emphasizes the section of the law that permits two Jews to engage in “arbitration before Jews or Patriarchs . . . with the consent of both parties . . . in civil matters.” In fact, the law concludes by stating that not only is this permissible, but that “the governors of the provinces shall even execute their sentences as if they were appointed arbiters by the [Roman] judges.” This reading buttresses the impression we get from rabbinic literature itself: The rabbis had the ability to judge cases in family law and other civil matters, so long as both parties were Jews who were willing to submit to the rabbis’ jurisdiction. According to Harries, this situation persisted even after the emperor Arcadius’s ruling of 398 CE.
There were, however, severe limitations placed upon Jewish legal decisions outside of civil cases. It is generally assumed that the rabbis and other Jewish jurists were denied the possibility of carrying out executions for either capital crimes or biblical sins. This, of course, does not rule out possible mob violence; but rabbinic insistence on the rule of law certainly precluded any Jewish court from actually turning a convict over to a mob for execution. I like to think this was also true when the Second Temple was still standing. But any evidence we might have about the limitations of a Jewish court is made vastly more complicated by Christian testimony about mob violence. St. Paul claims to have taken part in a mob stoning of St. Stephen before the former’s conversion to Christianity.
Christian literature also skews our understanding of early first-century Jewish law with its depiction of the complicity of the Jewish Sanhedrin with the Roman court in the trial of Jesus. To state the obvious: these accounts are tainted with religious prejudice. I confess to my own pro-Jewish and pro-rabbinic bias in this theological minefield, as well. Nevertheless, the early Christian accounts open the door to the possibility that the Jewish court may have convicted Jesus but then left it to the Roman authorities to execute him, as the New Testament reports. Given that Romans readily used crucifixion as a punishment and that Jewish courts do not permit that form of execution, this passes the test of plausibility.
I am not going to pursue this extremely complicated issue here, in part because this book is not about Jewish-Christian relations and in part because I am content to stipulate that Jewish courts, whether pre-rabbinic or those of the rabbis of Roman Palestine, did not perform executions. The rabbis did spend a great deal of time talking about capital cases. Why go to the trouble of laying out in detail the four methods of execution a Jewish court might employ? Why describe the appeals process and the use of the town crier (Greek: kayruks) to announce an impending execution? Why such excruciating detail if the Romans did not permit any of these hypothetical executions in the first place?
We might equally well ask why so much rabbinic literature obsesses over details of the Jerusalem Temple: its procedures, layout, and rituals. A significant proportion of the Mishnah relates to Jewish laws that apply only to the Temple—such as sacrifice, priestly purities, priestly dues such as tithing, and such—although the Jerusalem Sanctuary was destroyed in 70 CE, never to be rebuilt. One simple explanation of the rabbis’ attention to things that existed only in theory—which applies both to the Temple and to the death sentence—may simply be that they had a strong penchant for Torah study. The central book of the Torah, Leviticus, is chock-full of the procedures of the Temple and priesthood that take up so much of the rabbis’ exegetical concern. Which is to say: the rabbis regularly made pronouncements about the things they studied about in Scripture. You cannot read the Pentateuch without noticing that it pronounces execution as a penalty for certain sins, again and again. Here, too, the rabbis’ seeming obsession with death-penalty proceedings may stem more from rabbinic proclivity for Midrash and biblical interpretation than from any historic reality or theoretical desire to execute.
In fact, the rabbis were scrupulous not only about interpretation, but also about fulfilling the Torah’s commandments regarding “justice, justice shall you pursue” (Deut. 16:20). As the rabbis read the repetition of the word “justice” in the verse, they understood it to mean that they were always required to use just means in their pursuit of justice. This meant that the rabbis had great respect for what we now would call “rule of law,” and that they took care to set up courts to adjudicate disputes in the Jewish community wherever possible. At the same time, the Palestinian and Babylonian Talmud each offer abundant testimony that the rabbis depended on case law, however messy and unruly such a system might be. In this they shared a worldview with thei
r Roman pagan neighbors. Law as practiced in the courts and communities was the best precedent for adjudication. It is not coincidence that the rabbinic courts (theoretically ranging in size from local tribunals of three rabbinic judges to larger trials, which could involve twenty-three or even seventy-one elders) were all called Sanhedrin, using the common Greek term for a council or senate: synhedrion.
The historian Polybius, writing in Greek in the second century BCE, uses the term synhedrion to refer to the Roman Senate—and that’s back when the Senate was still the Senate, before the advent of an emperor. Once there was an emperor, “first among equals” in the Senate, synhedrion referred to the emperor’s executive committee, which effectively stood above the Senate. The New Testament refers repeatedly to the Jerusalem synhedrion as a Jewish institution. The rabbis, in turn, styled their courts Sanhedrins. In fact, this term became so closely associated with Jewish courts that we find that the Roman legal compendium called the Theodosian code refers to “the Primates of the Jews . . . who are nominated in the Sanhedrins of Palestine.”
This Theodosian law also refers to payment to the imperial treasury of an annual tax collected by the palatini. From the context here it is clear that a palatini was some kind of treasury or tax official. A passage in Midrash Leviticus Rabbah, composed in Roman Palestine around the same time, explains a verse from Jeremiah that is still read in synagogues as the prophetic portion on the second day of Rosh HaShannah, the Jewish New Year:
Aphrodite and the Rabbis Page 15