Ilya Schwartzburg

Romans, Rabbis, and America: How We Should See the Law


ISSUE 2 | BREAKING THE LAW | MAR 2011

Say you’re walking in the market and you fall into a pit someone dug. It happens all the time. Today, you would probably go to the police and tell them about it. They would then investigate and you would go along your way. Granted, today digging a pit in a marketplace is a priori a criminalized action, but let’s set that aside right now. Your insurance would take care of any medical bills, and later you’d have to testify when the state brought a criminal case against the pit-digger, but the testimony would be just a formality, taking an hour or two out of your day. Imagine, however, that this happened in the ancient world. If you were a full and solvent citizen within the Roman Empire you would have to bring the pit-digger to court yourself and sue. You would also have to choose between various actions on which to sue: in this case, you would sue for negligence and maybe for insult as well. Then you would have to determine the amount in compensatory damages you wanted to try for, and justify that amount in court. Finally, you would ask for punitive damages—up to four times the total compensatory damages. These punitive damages existed to serve justice to the malefactor.

Alternatively, if you were a Jew of those times, you would bring the case to a Beit Din, a religious court, where the three rabbi judges would rule on the nature of the crime and the punishment; it would also be up to them either to award you damages or treat it as a corporal offense in the interest of God’s justice. Here we see a great difference in the personal involvement in justice between the two ancient systems. In the Roman system, the responsibility and the authority to enforce your own society’s ideals of justice and recompense rest upon you. In the Jewish system, your victimhood is second to the criminal’s offense against the Lord and His Word.

Oddly enough, our system, though stemming from Roman law, tends to take an authoritarian response to offenses, more similar to the Jewish system than the Roman one. Roman law provides a flexible system to deal with offenses, relying on the parties involved to bring suitable justice; Jewish law reduces all offenses to sins against a higher power. Similarly, American law these days tends to conceive all offenses as crimes against the law. For instance, take drinking and driving. If you were a Roman, you wouldn’t drink and drive because of the risk of hurting people, who would then press charges against you and most likely win substantial amounts of your money. But as an American, you don’t drink and drive because it’s illegal and the police might catch you, and if they do they’ll prosecute you simply because what you did was illegal. We no longer think about our actions in terms of social consequences, as we would in a system where justice was enforced as much by common people as by the police.

The Roman and Jewish law codes of the sixth century were similarly powerful within their societies, but their legitimacy rested on very different foundations. For Roman law the source of legitimacy was public trust; for Jewish law it was God. This essential difference helps not only to explain the role of public perception for legal codes, but also to shed light on some fundamental characteristics of our own American law and how we relate to it. Though Roman law is the historical source and provides the primary framework of American law, as it does for most Western countries, the American perception of the law’s role is in fact more akin to that of the Jews, which in my opinion is for the worse.

The Code of Justinian was a sixth century, CE project by the auspicious Byzantine emperor to anthologize all relevant legal decisions, precedents, and codes to date and serve as a complete and clear legal code that would subsume all others. For Justinian this code was to be one of his grandest achievements, together with the reconquest of Italy and the erection of the Hagia Sophia. He believed that the law was one of the greatest justifications for the very existence of the Empire. In contrast to this world-important scope of the law’s implications, the text itself is heavily based in citizen-to-citizen interaction and conflict resolution. It lists a number of civil charges—“torts”—on which to sue in order to win personal damages, accompanied by the specification of conditions under which these actions can or cannot be applied. One of the more entertaining examples goes like this:

Further, Mela writes that, when some people were playing with a ball, one of them hit it hard and it knocked the hands of a barber, with the result that the throat of the slave, whom the barber was shaving, was cut by the jerking of the razor. In which of the parties does the fault lie? — for it is he who is liable under the Lex Aquilia [an action to sue for damages]. Proculus says the blame is the barber’s, and surely, if he was doing the shaving in a place where people customarily played games or where there was much going to and fro, the blame will be imputed to him; but it is no bad point in reply that if someone entrusts himself to a barber who has his chair in a dangerous place he has only himself to blame for his own misfortune.
The contemporary respect for Roman law was a direct result of its codification. The fact that conflict, transactions, and the very mundane interactions of life were regulated neither by the right of the stronger nor by an unreliable family or tribal system was unique and respected. The extension of citizenship during the second century CE to every free male in the empire was hailed as a great achievement—and by then citizen meant nothing more, but also nothing less, than full access to the law and its remedies. Every citizen could have a reasonable expectation to justice, even against the rich and powerful. The citizen also had a wide range of options: Roman law aimed to leave as many routes as possible open for retribution so no one would leave frustrated. The system was successful because the people used it and trusted it; the powerful submitted to it because they were invested in the success of the society the law helped to preserve.

On the Jewish side, the codification of the (Babylonian) Talmud was completed around 500 CE. It was a collection of rabbinical debate and pronouncement over all aspects of Jewish life and law based on God’s Torah. The Talmud draws a distinction between the divine commandments (mitzvoth) that govern the relationship between man and God (adam le’makom) and those that govern the relationships between man and man (adam le’chaveiro). It is far more readily apparent when justice has been realized in conflicts between man and man than in conflicts between man and God; therefore, the Torah and then the rabbis set up a system of rabbinical courts to adjudicate conflicts between individuals (though these courts dealt with certain enumerated religious offenses as well). In this context, the Jewish system resembles that of the Romans in that it is grounded in a set and publicly accessible law code. On the other hand, the Roman law deals primarily with justice among men, while Jewish sources primarily discuss the law as a favor handed down from God to Moses. The law is cherished as a gift from God rather than for the effectiveness or value of the gift itself.

Roman law and Jewish law diverge in practice as well as in origin, as we can see from the way in which each legal system deals with stealing in public and in private. In Bava Kamma, a tractate of the Talmud heavy in civil legal debate, the rabbis declare that it is worse to steal in private (geneivah) than to steal in public (gezeilah) because the thief who steals in private shows that he fears human vengeance more than God’s. On the other hand, Roman commentators come to a wholly different conclusion on the subject:

It is useful to observe that even when there may not be an action of theft in respect of a thing deposited for safekeeping, action can be brought for robbery, because there is no small difference between an offender who steals secretly and one who commits robbery with violence — the former does at least conceal his offence, the latter not only publishes his but even commits it publicly.
This difference can be attributed to the fact that Rome is concerned with the reputation of the law while for the rabbis the law is unassailable. The law, both criminal and civil, is nothing more than one of many institutions given to us by God to meliorate the inherently imperfect state of this world. Therefore we do not have even a right to expect justice. We must have faith that the good will ultimately be rewarded and the evil will ultimately be punished; any justice that happens in this worldly plain should be considered as an unexpected gift.

The different approaches to evidence and punishment in each legal system illuminate the practical differences between Roman and Jewish law. In criminal and especially capital crimes, Jewish law requires an extremely high burden of evidence. In order to prosecute, one must have two fully righteous male witnesses with identical testimonies, and they must have warned the suspect before the offending action by citing the relevant commandments. The witnesses were also liable to the same potential punishment as the suspect if they were discovered to be lying. Hence conviction was almost impossible. In fact, the Talmud states that if a court executed one person over a period of seventy years, it was considered a murderous court.

Though the capital crime is an extreme example, there is a general pattern of leniency throughout Jewish law. For instance, someone could never be liable for two different punishments simultaneously. If a person were prosecuted for an offense that could bring a greater punishment, he or she would also be let off automatically of the lesser offense. If the evidence was ambiguous, the accused was genereally considered innocent by default. Bava Kamma discusses the example of multiple people assaulting someone who dies. If it could be identified who dealt the last blow then that person would be liable. However, if that person could not be identified then everyone would be considered innocent. On the other hand, in the exact same situation, the Code of Justinian rules that everyone who was involved should be held accountable. This leniency in Jewish law, I believe, shows how little people were concerned with enforcing a secular appreciation for justice. People’s frustration with lapses in justice could be denounced in appeals to piety and righteousness. Roman law, on the other hand, was held accountable for maintaining justice and hence had to visibly enforce punishment and liability in stricter terms. Freedom of choice and trust in the courts as venues empowered the populace to be responsible for justice and feel ownership over the law.

In contrast to the Roman law, when one Jew brought another to court, the only thing he could do was present the facts of the case. The rabbis then ruled not only on guilt, but also what the offense was and any punishment to be meted out. The Jewish plaintiff had to defer to the authority of God’s law, the rabbis’ wisdom to apply it, and the ambivalence resulting from the moral distance between the two. Because the rabbis could not claim a divine access to truth, they often deferred to God’s justice in the afterlife.

American law is truly a successor to Roman law insofar as it is preoccupied with establishing a secular rule of law, but its relationship with its public is similar to that of Jewish law. In one way it has an extreme version of Rome’s preoccupations: it has convinced us to automatically seek litigation to settle conflicts and to trust in the law bearing fruit. As the Rabbis believed their law was unassailable, we have convinced ourselves that we must always act and consider law as if it were unassailable. The Enlightenment and multiculturalism have inspired our appeal to law as an appeal to the apex of reason and civilization. The judicial system still rests on an almost Kantian public faith in law and order. It is much more than a simple cool-minded calculation of happiness and stability versus freedom. People think reflexively in legal conceptions of right and wrong.

However, though we now assume that everyone is capable of acting morally, we do not trust them enough to actually give them more than a minor hand in justice. We are trained when we see a crime to tell the authorities and be done with it. The police have numerous protections from the public so that they can do their work. This system, however, robs the public of any feelings of ownership of justice or fulfilled responsibility. We obey the law either through a fear of punishment or because that moral choice has been so well conditioned that it no longer resembles an ethical or moral conclusion. Instead, it rings like an automatic religious response when we defer to God’s authority out of hand without truly considering it. We have replaced the Roman system of order and utility and inserted a god which we call the public, the people, society, or law in itself. Our legal system has become just as top-down as that of Judaism, though without the leniency that comes from the worldly authority’s self-doubt. The rabbis always had the option of surrendering moral responsibility to God and assuming the best even in criminals. In Rome the legal system was bottom-up: even criminal action had to be brought by a complaining party to initiate any trial; the plaintiff had to dictate the damages and actions, as well as any punitive damages in the interest of justice; and authority rested on the trust and active participation of the people.

I do not intend to dismiss American law, nor the faith that we have in it, but we should remember that as we have adopted such a strong faith in top-down justice, it becomes more imperative than ever that that justice be applied clearly and responsibly. Today, the execution of that justice has been deferred entirely to the state. However, I must remind people that the state is imperfect and in the judiciary it is not even wholly representative. I fear that soon enough, the extreme faith we have in state-administered justice will fade. As the state becomes more distant and alien—a bureaucratic entity with its own large and unique interests—justice could become nothing more than reaffirming the government’s control and jurisdiction in all affairs rather than the true interest of society. Citizens should rediscover their ability and responsibility to enforce justice through civil action and discourse. After all, the Roman law that was so dependent on its use by an active citizenry lasted so long and inspired so much respect that it still lies at the core of our own system.