with the exclusion of bills of divorce and manumission of slaves. A second opinion, that of Rabbi Shim‘on, validates even the latter kinds of deeds when issued in non-Jewish courts.
A later rabbinic position reflects a much stricter attitude. The collection of exegesis of the Pentateuch, Midrash Tanhuma, ascribed to Tanhuma, a fourth-century Palestinian scholar, states: “There he cried onto the Lord…. There he made for them a statute and an ordinance and there he put them to the test (Exod. 15:25) for them and not for the worldly nations. For he who renounces the judgments of Israel and goes before the worldly nations has transgressed against God first, and then against the Torah.”196
The Babylonian Talmud discusses the Mishnah dealing with the validity of deeds that were drawn up in a non-Jewish court. The tannaitic rule, according to which all deeds that are drawn up in non-Jewish courts are valid except for bills of divorce and manumission of slaves, stimulated the discussion of the Babylonian sages:
[Mishnah]: All documents that are accepted in heathen courts, even if they who signed them were Gentiles, are valid [for Jewish courts] except for writs of divorce and of emancipation. Rabbi Shim‘on says: These also are valid; they were only pronounced [to be invalid] when drawn up by unauthorized persons.
[Gemara]: [Our Mishnah] lays down a comprehensive rule in which no distinction is made between a sale and a gift. We can understand that the rule should apply to a sale, because the purchaser acquires the object of sale from the moment he hands over the money in their presence, and the document is a mere corroboration; for if he did not hand over the money in their presence, they would not take the risk of drawing up a document of sale for him. But with a gift [it is different]. Through what [does the recipient] obtain possession? Through this document, [is it not]? And this document is a mere piece of clay?—Said Shmuel: The law of the government is law. Or if you prefer, I can reply: Instead of “except writs of divorce” in the Mishnah, read, “except [documents] like writs of divorce.”197
The talmudic discussion concerns two kinds of documents: “evidentiary” and “constitutive.” The former documents concern activities that are effectuated by payment, namely, monies that are given in exchange for goods. Here the document, a receipt, serves as evidence of such payment (rather than effectuates the transaction). In the latter, however, no payment takes place; thus the passing of property from one person to another is effectuated by the document itself. According to the Mishnah, all documents issued in Gentile courts are valid, except those that have a religious character, such as bills of divorce and manumission of slaves (their religious character precludes any non-Jewish involvement). In the Mishnah, however, there is no distinction between evidentiary and constitutive documents. The discussion in the Talmud concludes that evidentiary documents create no new legal state, but simply attest to one; thus they depend on credibility alone and hence are valid when issued by Gentile courts.
But in the case of constitutive documents, the Talmud asks how these can be valid if issued by a Gentile court. Such documents create legal states and therefore cannot be issued by a Gentile court, as it is outside the realm of Jewish law. The Talmud gives two different replies. The first is that, indeed, constitutive documents of Gentiles are valid in lands under Gentile rule (as was Palestine at the time of the Mishnah). Jews under Gentile rule must conform to Gentile law (“the law of the land”), and since the constitutive document (of gift) issued by a Gentile court is valid in Gentile law, it automatically becomes valid in Jewish law.
The second reply states that constitutive documents of Gentile courts are invalid. The remark of the Mishnah “except bills of divorce and manumission” should be read “such as bills of divorce and manumission.” Bills of divorce and manumission are disqualified here not because of their religious character (which indeed they have) but, more sweepingly, because of their constitutive character.
Settling disputes in non-Jewish courts also comes up in the Talmud:
[Gemara]: Rav Nahman said in the name of Shmuel: A get given under compulsion [exercised] by an Israelite court with good legal ground is valid, but if without sufficient legal ground, it is invalid, but it still disqualifies [the woman for a kohen].198 If enforced by a heathen court on good legal grounds, it is invalid but disqualifies [the woman for a kohen]; if without sufficient legal ground, there is no tincture of a get about it. How can you have it [both ways]? If the [heathens are] competent to apply compulsion, it should actually be valid. If they are not competent to apply compulsion, it should not disqualify! Rav Mesharsheya explained: According to the strict rule of the Torah, a get enforced by a heathen court is valid, and the reason that [the rabbis] declared it invalid was to prevent any [Jewish woman] from attaching herself to a heathen and so releasing herself from her husband. If that is so, [why did Shmuel say that] if it is enforced [by a heathen court] without sufficient legal ground, it has not even the tincture of a get? Let it at least be on a par with the similar get exacted by an Israelite court, and disqualify the woman for a kohen?—The truth is that Rav Mesharsheya’s [explanation] is erroneous. And what is the reason?—[A get enforced by a heathen court] on legal grounds is likely to be confused with [a get enforced by] an Israelite court on legal grounds, but [a get enforced by a heathen court] without proper grounds will not be confused with [a get enforced by] a Jewish court with legal grounds…. Rabbi Tarfon used to say: In any place where you find heathen law courts, even though their law is the same as the Israelite law, you must not resort to them, since it says, These are the judgments that thou shall set before them (Exod. 21:1), that is, “before them” and not before heathens.199
A court cannot issue a divorce in Jewish law. A bill of divorce can be written only upon the express instruction of the husband. If a husband refuses to give such instruction, he may, in certain instances, be coerced by the courts to do so. It is this judicial coercion that is the subject of the talmudic discussion. Some Jews turned to Gentile courts for legal implementation; otherwise, it is unlikely that a discussion about the validity of such a divorce would be found. Despite its general disqualification of a divorce coerced by a non-Jewish court, the Talmud grants such a divorce (get) some validity (“a tincture of a get”): “If enforced by a heathen court on good legal grounds, [the divorce] is invalid but disqualifies [a divorced woman from marrying a member of priestly descent, a kohen].”
It is noteworthy that the Talmud does not challenge the tannaitic position that “a heathen court … may flog a man and say to him, do what the Israelite [authorities] command you.” In addition, following the question of the validity of a divorce issued in a non-Jewish court, the talmudic discussion cites the saying of the tanna Rabbi Tarfon against appeal to non-Jewish courts. While the talmudic discussion before its reference to Rabbi Tarfon focuses on the question of divorce, it now raises a much broader concern: appeal to non-Jewish courts. The sequence of the discussion creates an interplay between the question of divorce and that of appeal to non-Jewish courts in general, thus disqualifying any resort to non-Jewish courts. Nonetheless, there is no objection to the use of non-Jewish courts as a means of enforcing Jewish court decisions.
Conclusion
The judicial landscape of the Eastern Roman and the Sasanian Empires was anything but monolithic. Under both empires, there was a great diversity of judicial institutions that drew their authority from a variety of sources, including imperial sanction, religious affiliation, social rank, and interpersonal relationships. Imperial magistrates, ecclesiastical officials, and urban aristocrats on both sides of political boundaries were the formal upholders of imperial laws, thereby acting as propagators of imperial unity. Through the application of imperial law, members of the Roman and Sasanian judicial apparatus served as constant reminders of sovereignty. These officials, however, were not the exclusive possessors of judicial authority. Our evidence attests to a variety of institutions and individuals, both in urban and rural centers, who held judicial authority as well. These include village headmen, local notables, and pious individuals. A third category of judicial authority was that of
