speaks of thieves who broke into a man’s house. The man asked: “Should I chase after them, or should I pretend that nothing has happened?” To this, the monks replied: “Why is it that we want to take revenge instead of leaving everything to God? … [L]est we want to fall into vainglory, let us do nothing … to the thieves.” Further persistence on the part of the alleged petitioner meets the following position: “Those who are on the lower level … seek to recuperate what they have lost…. This brings some people to turn to the courts.”95 Admittedly, the monks were not exercising judicial authority in its conventional form. Nonetheless, to an extent, their answers did assume a judicial capacity, as they were asked to decide on issues that required judicial resolution.
While the exact nature of the judicial role played by the sixth-century monks of Tawatha is debatable, the evidence regarding clergy exercising legal authority in the Egyptian village of Karanis is rather straightforward. One document, dated to 439 and issued by twelve presbyters and five deacons from Karanis, is a “statement forbidding the interception of water from a particular source.”96 Indications of judicial services being rendered by monks can be found in the case of the monastery of SS. Sergius and Bacchus in the vicinity of Nessana. Among the documents excavated at Nessana are a few examples of judicial proceedings handled by members of the local monastic community and clergy. An example of one such document is a divorce agreement drawn up by a priest in 689.97 Though the Nessana papyri are dated to the second half of the seventh century (after the Arab takeover of Palestine), the practices to which they attest trace their origins to an earlier historical period.
It is now acknowledged that the category of holy men consisted of a diverse group of individuals that included bishops, clergy, monks, and solitary stylites.98 Thus the example of men such as Synesius, who started out as a local notable and by 411 was appointed bishop, suggests that the holy man and the local landowner could have merged into a single authority. Sometimes, this authority drew its legitimacy from material and at other times from spiritual capital.99 Moreover, the rise of the holy man needs to be seen within the general context of Christianization. While the appointment of episcopal courts was a formal expression of that trend, the judicial functions fulfilled by rural priests, abbots, monks, and stylites constituted its informal obverse.100 Although holy men lacked official appointment, it is possible that it was this very feature in their position that gave them so much power. The popularity of holy men as arbiters had much to do with their reputation of being “close to God.” Such a perception of the holy man not only gave special meaning to his judgment but also gave people a sense of security in his presence.101
Choice and Collaboration
Despite our systematic presentation of the various judicial institutions within the late Roman Empire, such a systemization was not conceived in practice, as people were not necessarily confined or obliged toward a single judicial institution. In fact, as we shall see, many of them chose to “forum shop” and appear before institutions of different social orientations, working each one to the best of their advantage.102 Indeed, there is evidence that individuals were in a position to make judicial choices. Augustine mentions a certain Jew, Licinius, who chose to appeal to the bishop’s court in order to save a piece of property he had lost to a member of the church, rather than turning to a secular authority.103 Other cases show civil affairs falling under the jurisdiction of military magistrates and vice versa.104 In her analysis of Coptic-language legal documents from the sixth century, Leslie MacCoull suggests that such documents, written in vernacular language (Coptic), were made for their future use in other tribunals.105
There is also evidence for institutional collaborations, an example of which is found in the records of the monastery of Epiphanius near the Egyptian city Thebes, dating to the sixth and early seventh centuries. Written on a fragment of pottery (an ostracon), it is a correspondence between Strategius, lashane of Ne, to Cyriacus, presumably the abbot of the monastery of Jeme. The lashane informs the abbot that he was not able to settle a certain matter because of the absence of the latter, and he assures him that he will detain certain individuals until the abbot arrives.106 It may be that the matter to which Strategius referred was a case in which he had no standing and thus required the abbot’s presence. Be that as it may, it suggests some level of coordination between judicial authorities—namely, those of the lashane and the abbot. Another document, recorded on a sixth-century papyrus, presents a letter signed by Shenoute, lashane of Jeme, and a list of other names, probably local elders, to Apa Epiphanius.107 Here the secular authority asks the spiritual one to intervene on behalf of members of the local community who are in confinement by appealing to the lashane of the town where they are held.
Finally, presumably there was also some form of collaboration between a monastic authority and a lay one in a sixth-century case mentioned in the collection of questions and answers from Tawatha. In one of its letters, a judicial authority asked the Tawatha monks: “If the fathers ask me to offer judgment on a particular matter, but I do not feel very confident in myself, then what should I do? Should I avoid or accept?” The monks replied: “For the sake of the command of the fathers, accept and tell those receiving judgment: I shall judge only according to what I think is right.”108 The passage suggests a lay leader of some judicial capacity who was asked by an ecclesiastical or a monastic figure to serve as judge in a certain affair.
Jewish Judicial Institutions
A sixth- or seventh-century document from Egypt mentions a “Jew who asked a respectable figure to intervene in a dispute which had arisen between him and his younger brother about the division of their father’s property.”109 Like others, Jews had a judicial choice. By the fourth century, however, Jews formed a minority in what was formally a Christian empire. This was bound to have an impact on the choice of judicial institutions on the part of some Jews, as well as on the type of judicial institutions available to them. Jews, as members of a separate religion, traced their history in a past that long preceded that of the Christians. Yet by the time of the late Roman Empire, they lacked any form of political sovereignty. While the rabbis had addressed the problem of judicial boundaries long before Constantine, their insistence on judicial exclusivity was now charged with new energies. By now, the ancient Gentile (goy) judge may have been a member of a new monotheistic religion.
Modern scholarship is divided as to the extent to which Jewish social life was secluded from that of its neighbors under Roman rule.110 A relatively old school of modern scholarship tends to view Jewish life as having been autonomous vis-à-vis its surroundings and internally consolidated in terms of its communal institutions. Tessa Rajak has judiciously argued that such a perception of pre-Islamic Jewish life was defined through a Jewish modern experience: “Modern experience readily leads us to believe that the life-arrangements required by completely orthodox Judaism, as we today know it, presuppose an intensely communal existence and scarcely leave room for more than superficial mixing.”111
More recently, however, late antique Jewish history has been presented along a line of ongoing transition, in which the rabbis were only at the margins of Jewish society. This process is thought to trace its origins to the period after the destruction of the Second Temple, in 70 A.D. and accelerating in the period from the formal Christianization of the Roman Empire in the fourth century into the period following the Islamic conquest. According to this revisionist approach, the Jews of late antiquity were guided and led by a variety of men and were loosely bound ideologically.112 Nevertheless, the character and appeal of the judicial institutions that were available to Jews under late Roman rule were determined by a variety of factors, among which are the minority status of Jews, the agendas of Jewish elites, and the daily contact that Jews had with non-Jews.
By the late 390s, Roman law had outlined the boundaries of Jewish judicial jurisdiction in a way that strikingly resembled that of the church. In general, Roman law stated that a Jew, like any other Roman citizen, should bring his lawsuits before magistrates of the empire. Still, Jews were
