“From Mesopotamia to the Mishnah” by Jonathan S. Milgram

Jonathan S. Milgram. From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in its Legal and Social Contexts. Texts and Studies in Ancient Judaism 164. Tübingen, Germany: Mohr Siebeck, 2016, 201 pp..

Jonathan Milgram’s erudite study on tannaitic inheritance law contextualizes rulings on inheritance within the framework of the ancient Near East, Greek, and, most importantly, Roman law, which is contemporaneous with tannaitic law. Through a comparative legal approach, he explores how the legal collections “overlap conceptually, procedurally, and on occasion, even terminologically” (7). Naturally we are inclined to point towards biblical antecedents for the development of certain aspects within tannaitic law. Fundamental to Milgram’s thesis, though, is the lack of scriptural exegesis in tannaitic law discussing issues of inheritance. In other words, “new laws not only drop archaic biblical institutions but also embrace new methods that the rabbis observe” (27). Below I provide a summary of his arguments accompanied by my commentary.

Milgram first introduces standard methodological concerns: brief discussion of theories of legal development, ultimately focusing on the comparative legal approach; a framework for the relation between ancient law and the socio-economic environment of the tannaim; and a summary of his sources and proceeding arguments. In short, he sets out “to demonstrate the degree to which tannaitic inheritance laws are likely the product of their ancient legal, social, and economic contexts” (38)(Introduction). While it is good that Milgram utilizes such a broad set of ancient legal codes and demonstrates exceptional understanding of them through a comparative legal approach, his overall conclusions may have been sturdier with inclusion of the social and economic histories of the various ancient laws. For, inclusion of social and economic histories of ancient laws would have uncovered the relationship between law (ancient laws) and reality (social and economic histories). Such patterns within history would perhaps offer more cemented conclusions and legitimization for Milgram’s argument.

Establishing the origins of partibility, methods for disposing of assets, and capacity for transferring property in tannaitic law, Milgram claims the components do not originate in biblical law; rather, they emerge from the adaptation of Roman legal vocabulary and conceptualization within a nuclear family in an urbanized setting with private landholding patterns (Chapter One). For, biblical law fails to distinguish between inheritance and gift and no rabbinic scriptural exegesis exists for the inheritance laws, both primary aspects driving his arguments. Ancient Near Eastern and Roman laws of inheritance function, though, in a similar way as tannaitic Law. Roman law, though, is most similar because of the legal conceptualizations of mattanah (Latin: donatio) and yerushah (Latin: hereditas). While already established as parallel terms, Milgram’s analysis furthers the importance of their relationship by using them to highlight the tannaitic social and economic context. Additionally, through philological-historical analysis meant to highlight the distinction between gifting and inheriting in tannaitic law, he suggests mBB 8:5 contains evidence for a tannaitic approach which permits testate succession, as opposed the more commonly accepted intestate succession. Through highlighting these various similarities to Roman law and uncovering a suppressed tannaitic approach, Milgram demonstrates well the possibility that his observations affirm the impact of the social and economic reality of the rabbis upon tannaitic law.

Moving on to the question of possible origins for tannaitic flexibility in firstborn inheritance law, Milgram demonstrates how the legal flexibility developed due to the cultural heritage and contemporary horizons, even to the point of declaring no firstborn. In terms of cultural heritage, the flexibility of firstborn inheritance seems to develop from ancient Near Eastern and Biblical sources, sources which evidence flexibility in the status and inheritance of the firstborn. Only with more contemporary horizons of Greek and Roman legal writings, though, does tannaitic law fully develop due to an (1)urbanized tannaitic Palestine and (2) absence of firstborn allotment among Greeks and Romans. Within this chapter, clarification as to what constitutes biblical law in Milgram’s approach would have helped to clarify some of his arguments. For, in some interpretations, law is just as much the patriarchal narratives as it is the book of Deuteronomy.

In an exploration of testate succession in Tannnaitic law, Milgram thoroughly explores for the nearest legal parallel of testate succession in tannaitic law (Chapter Three). Accordingly, he argues that R. Yohanan ben Beroka introduces testate succession for agnates. After examining ancient Near Eastern and Greek parallels, these traditions are excluded as possibly connected because they tend to include adoption, something absent in tannaitic inheritance law. Only in Roman legal discourse, sui heredes, do we see a reasonable parallel. While Milgram emphasizes the context of contemporary Roman law, thereby further establishing the influence of Roman law upon tannaitic law, highlighting appropriation of the biblical model, as a partial antecedent to tannaitic law, into the tannna’s own Roman-Palestine, socio-political context is necessary. Consider his comment about R. Yohanan ben Beroka: “In that sense, the tanna remains fiathful to a fundamental tenet of the biblical model: the land remains in family hands” (95). Based on this, perhaps tannaitic testate succession may be, in part, an appropriation of biblical tradition, albeit a conjectural suggestion.

Shifting to inheritance by daughters, Milgram argues three major principles of tannaitic inheritance law (collection of an inheritance share, receipt of a dowry, and maintenance) possibly developed in a context of Roman law (Chapter Four). While the “cultural valuation of daughters” is evident in both Roman and tannaitic culture, actions of Romans, as opposed to law, demonstrate the valuation and tannaim legislation demonstrates valuation. Additionally, his analysis of mBB 8:4, one tannaitic tradition approaches sons and daughters as equal in inheritance.

Following this discussion, Milgram considers inheritance by wives. With the lack of biblical precedent and scriptural interpretations for tannaitic innovations of collection of maintenance and residence or payment of the ketubbah debt as two approaches to widow’s benefits, he argues the tannaitic law developed via local practices which rabbis may have observed and via ancient legal traditions from throughout the region (Chapter Five). A statement within the chapter raises, though, a question of his framework and, consequently, methodology. In short, he claims the Bible was authored in an ancient Near Eastern context (139). Although this is absolutely true, it fails to consider the whole picture. Scholars recognize the influence of Greek ideas and culture upon the development of biblical traditions. Thus, more serious consideration of the (possible) relationship between Greek and biblical traditions might enable a better understanding and timeline of the development of legal tradition in the Mediterranean.

Additionally, Milgram’s treatment of Ruth is poor. While it would be reasonable to conclude upon the fact that Naomi is a sort of trustee for future sons, he notes “the possibility of polemics in Ruth… impairs our ability to penetrate in what way… the book is representative of historical law or local custom” (140). This view, unfortunately, is very limited. In his recent commentary about the book of Ruth, Jeremy Schipper illustrates why Ruth should not necessarily be read as a polemic text. Milgram should have further engaged with Ruth. For such a rich repository of questions and issues of inheritance as found in the book of Ruth, the lack of discussion of Ruth is disappointing.

Having illustrated how tannaitic inheritance law was possibly influenced by contact with Roman law and cultural heritage of ancient Near Eastern and Greek law, he entertains the issue of how Jewish is Jewish inheritance law. As he puts it, “we are witness to competing and conflicting traditions that are, at times, interwoven with one another, waiting to be discovered and mined for the richness they add to the complex web of tannaitic inheritance traditions” (146).

As a result of Milgram’s study, we more clearly observe the relationship between Roman, Greek, and ancient Near Eastern laws and tannnaitic traditions. He does this by revealing various tannaitic traditions throughout his work, traditions previously unobserved. In short, he allows us to better understand tannaitic law within its ancient, legal context. Hopefully future scholars will further elucidate the complex web of laws from Jewish traditions and other ancient legal tradition and how they possibly influence each other. For the scholar who does this, Milgram’s monograph is an important reference.