1. Jeremy Tabick
Ancient Jews and the Mediterranean
25 December 2015
The Influence of Roman Iniuria in Palestinian Rabbinic Law
Introduction
What is the relationship between the laws of habalah in the Rabbinic literature of Eretz Yisrael
and the Roman legal thinking of the related concepts iniuria and Lex Aquilia? Iniuria is a very
expansive concept, including injury to free persons as well as their insult or defamation, and
many other cases of getting in the way of another freeman’s life. Lex Aquilia governs laws of
property damage, especially regarding slaves. The boundaries between these two areas of law is
often blurred in the sources—they move from discussing personal damage to discussing property
damage, and vice versa.
In the Rabbinic sources, the primary category appears to be habalah. It is primarily the
physical injuring of another person, though (as we will see below) encompasses less serious
crimes as well. While in general the laws covered under Lex Aquilia are found in other chapters
(slave murder, property damage, and so on), the Rabbinic sources are often just as blurred
between habalah and other forms of damage as the Roman. Once we are dealing with similar
topics and cases, we are moved to ask what other connections there are to be found. We will thus
attempt to uncover traces of Roman influence or anti-Roman sentiment in the Rabbinic sources.
We have two key methodological cautions, which are worth naming now and trying to
mitigate them as we progress:
1. We will quote Roman texts from 3rd BCE to 6th CE—all of these are quoted in Digest.
Where possible we will find an earlier text (like the book of Paulus or Gaius), but so
many of the early jurists come to us only through Justinian that it would be impossible to
do so entirely. We can assume that at least some of the opinions quoted do indeed
represent the laws of earlier times, but who knows which ones or how many? This would
require much more experience with the language and history of Roman law than I
possess. I will thus take the safer road and treat the works before me—Rabbinic and

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Roman—as texts representing mostly their date of publication.
2. The jurists are writing in Rome about Rome. It is not at all clear how much their rulings
were practiced in the Roman East, where one imagines many Greek legal customs and
practices continued unchanged into the Roman period (especially earlier on, when the
Romans ruled through local kings). Again, counting for this factor would require a much
more learned scholar than me.
Therefore any conclusions regarding the influence of these ideas on Jewish law must be
tentative at best.
That said, the comparison is certainly valuable, since Roman jurists are unlikely to have
thought something that was totally unlike their Greek neighbours and counterparts—after all,
both Rabbinic and Roman law are products of broadly similar circumstances.
We will analyse points of contact between the Roman legal opinions and that of Palestinian
Rabbinic literature (Mishnah, Tosefta, Yerushalmi). The Tosefta is surprisingly rich with Roman
parallels, while Mishnah and Yerushalmi are comparatively sparse; thus we will spend most of
our analysis on the Tosefta. We also present this as a supplement and corrective to Pomeranz’
concise and informative article: since there was focussed on the Mishnah, here we will focus on
the other sources.
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Ancient sources for Roman and Rabbinic law
Any casuistic legal system takes precedent very seriously. Before we see the laws of the classical
period, we must consider their canonical sources.
The legislations in Baba Kama (if anywhere in Scripture) are most derived from parashat
Mishpatim.
On the Roman side, there are three main sources that the jurists comment on in this context:
1. The Twelve Tables;
2. Lex Aquilia;
3. Lex Cornelia de iniuriis.1
We will briefly discuss and compare these sources.
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The Twelve Tables
The locus for iniuria and property damage law is the eighth of the Twelve Tables:
VIII.1a. Whoever enchants by singing an evil incantation ...
1b. ... If anyone sings or composes an incantation that can cause dishonour or disgrace to another ... he shall
suffer a capital penalty.
2. If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensa-
tion with him.
3. ... If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 as; or
of 150 as, if of a slave.
4. If one commits an outrage against another the penalty shall be 25 as.
The first rule appears to be about casting a spell to harm another household. It natively has
nothing to do with iniuria, despite some older translations rendering “evil incantation” as
something like “libellous song”. However, from Cisero we know that this was interpreted early
on to mean exactly those libellous songs (carmen famosum). This becomes one of the paradig-
matic cases of iniuria in later ages (see Paulus 5.4.6. for one example).2
The second rule makes it explicit that the right punishment for injury is actual retaliation
(talion), but this may be waived if the parties wish in favour of monetary compensation. This is
often compared with the legislation of the Torah which requires actual retaliation and leaves no
room for monetary compensation. As we will see, in Exodus 21, this is a simplistic and wrong
interpretation of the verses.
The third rule seems to indicate a less severe case than the former. Breaking the bone of
someone is not serious enough to warrant talion, so instead it comes with a fixed monetary
penalty. Finally, the fourth rule appears to be a lower-level injury still, regarding other damage to
a person, not as serious as even a broken bone, with an even lower fixed penalty3
By the time of
Gaius, rules 2-4 are three of the foundational iniuria types (Gaius 3.223.).
The way these facts are interpreted in the sources (and by Pólay) is that iniuria is an insult to
the pater familias. This insult could be to his own body, or to the body of any person or property
in his household. Thus iniuria, as defined and understood in the foundational Roman legal

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document, is primarily insult, and secondarily actual injury.
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Lex Aquilia
More robust legislation for property damage was passed in 3rd BCE, of which there were three
articles according to the sources. The second will not concern us, as it is a more specific clause
which, Ulpian notes in the Digest (D 9.2.27.4.), has fallen into disuse.
1. Where anyone unlawfully kills a male or female slave belonging to another, or a quadruped included in
the class of cattle, let him be required to pay a sum equal to the greatest value that the same was worth
during the past year (D 9.2.2.pr., Gaius)…
3. If anyone damages the property of another except by killing slaves or cattle, whatever the value of the
property burned, broken to pieces, or injured, was, within the preceding thirty days; the party must be
compelled to pay the amount to the owner of the same (D 9.2.27.5., Ulpian).
Mainly this is concerned with damage to slaves of others. (Note that it is taken for granted
that you can damage your own slaves as much as you please). It also deals with other willful
property damage. Finally, it gives us a guideline on how to evaluate the damages of slaves and
other property—based on their highest value in the past year.
As Pomeranz rightly draws attention to,4
the Digest thinks that medical expenses and time off
work for injured slaves are also covered by this legislation (D 9.2.27.17., Ulpian), as well as for a
son under the father’s authority (D 9.2.7.pr.).
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Lex Cornelia de iniuriis
In the 1st BCE we have another source of the laws of iniuria, clarifying and expanding the
Twelve Tables. We do not have the exact text of this edict but must reconstruct its contents based
on later quotations.5
Broadly, it grants actions for three cases:
1. to thrash against (verberare),
2. to knock against (pulsare), and

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3. to break into someone’s house by force (domum vi introire, see I 4.4.8.)6
For purposes of the Rabbinic law, this law thus covers two cases of habala between free
people:7
verberare and pulsare. Breaking into someone’s house is not dealt with in our chapter.
What, then, is the difference between verberare and pulsare? According to the Digest,
quoting Ulpian:
D 47.10.5.1.
The following difference exists between striking (verberare) and beating (pulsare), so Ofilius says: to beat
is to cause pain, to strike is to inflict blows without pain.
Overall, this fixes the laws of the Twelve Tables VIII.2-4, with some modifications. It allows
for higher punishments than the fixed fines of the earlier law, and brings personal injury squarely
into laws of iniuria. Additionally, the Twelve Tables make no mention of intentionality—in fact,
it is likely it wanted the law to apply to both intentional and accidental cases. However, this Lex
Cornelia de iniuriis is talking about cases that are nigh impossible to do without intention—how
can you accidentally break into someone’s house?8
—how can you accidentally break into
someone’s house? This intentionality is a major fact of iniuria in later literature, which we will
return to below.
Paulus notes the change from the Twelve Tables to this new law (also see Gaius 3.224.-225.):
Paulus 5.4.6.-9.
6. The action for injury is based either upon law or custom, or upon both. Punishment is provided by the
Law of the Twelve Tables for libellous poems, broken limbs, and fractured bones.
7. So far as custom is concerned, this takes place whenever the damage caused by an act is estimated by the
judge according to its nature, and is punished by the infliction of a suitable penalty.
8. The action for injury arising from both law and custom is established under the Lex Cornelia…
9. Anyone who is civilly convicted of having caused an injury is required to pay the damage and becomes
infamous.
This is the basis for iniuria going forward.
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Parashat Mishpatim
The fullest account of laws of injury in the Torah are in Exodus 21:9
18. When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his
bed— 19. if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except
that he must pay for his idleness and his cure.
20. When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be
avenged. 21. But if he survives a day or two, he is not to be avenged, since he is the other’s property.
22. When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other
damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him,
the payment to be based on reckoning. 23. But if other damage ensues, the penalty shall be life for life, 24.
eye for eye, tooth for tooth, hand for hand, foot for foot, 25. burn for burn, wound for wound, bruise for
bruise.
26. When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free on
account of his eye. 27. If he knocks out the tooth of his slave, male or female, he shall let him go free on
account of his tooth.
There seems to be only one case of injury between two freemen described here, and that is of
vv. 18-19. The situation: they fight; if the person survives, then the assailant has to pay for his
time off work and his medical expenses. If the person does not survive, then presumably we
should look at vv. 12-14, which gives the punishment of either death (if the killing was intention-
al), or the perpetrator can run to find sanctuary (if the killing was accidental). The commonly
quoted retaliation for this case actually is not specified with the general case, but only regarding
the specific case of the pregnant woman.10
In this case, it appears that the two men were fighting and accidentally cause damage to a
woman instead. If there is a miscarriage, the compensation the husband wishes11
for the lost
foetus goes to him (demei vladot of the Tosefta). If the woman is otherwise damaged, then
retaliation is invoked. It seems most likely to me that this too was a way of asking for monetary
compensation,12
but to whom this money goes is not clear—one assumes still the husband. It
seems the case of deliberately hurting a woman is not dealt with here; the Torah may imagine
something similar to pater familias in which the head of the household gets damages for
everyone in their care.

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The Torah then moves onto a case not parallelled in Roman law: when one free person
wounds a slave, the slave should go free. Furthermore, the case of someone killing their own
slave seems to be a serious matter according to the Torah, and not even mentioned by the Twelve
Tables, and specifically allowed under later Roman law.
The Torah also specifically legislates the time off work and medical expenses for any
freeman. This is in contrast to what we saw above under Lex Aquilia, which mentions these
payments only infrequently and in passing. Presumably (though not explicit in the sources),
when making an estimate for iniuria, these items are taken into account by the judge. Certainly,
medical expenses and loss of work was money that the victim would have been interested in
recovering; it is hard to imagine that only the Torah came up this is as a general principle.
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Points of contact between Roman and Rabbinic law
Now we will list some similar concepts and cases between Roman and Rabbinic law and discuss
their similarities and differences. I will endeavour to point to situations where either Pomeranz
appears to be insufficient or is silent. I of course could not cover everything, but I have chosen
five of the most in-depth investigations, and those with the highest-stake Roman parallels.
The Rabbinic sources on habalah are exceptionally opaque. They are also exceptionally
different from one another, with a surprisingly small amount of crossover material between
them.13
So we are left with many textual difficulties and missing information, that may have to
be supplied from other sources.
How do we decide when to use the other sources and when to understand them on their own
terms? As much as possible, I will try to read the Tosefta as its own self-contained document, and
not reliant on the Mishnah. While I advocate this approach in general (unless it is simply
incoherent without the Mishnah), this seems particularly right to me in this case as it covers
much broader topics and cases than does the Mishnah. Doing so will lead us to some surprising
conclusions.
The Yerushalmi on this chapter is extremely terse; this is a known feature of Yerushalmi
Nezikin in general, which Lieberman thought was related to an earlier recension in Caesarea.14
There too are a lot of difficult passages. The Mishnah is not much more than typically terse,

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using minimum words to convey maximum information. Thus, all three of them are at times
amenable to multiple interpretations.
It is in these situations specifically that the Roman parallels become vital, and we will use
attempt to use these to ask new questions and adjudicate between possible interpretations
wherever we can. We will focus on the Tosefta and make reference to Mishnah and Yerushalmi,
and we will make some references to midreshei halakhah when we have occasion to.15
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Assessing a free person's value
As Pomeranz rightly notes,16
the Mishnah (8:1) requires one to evaluate a free person as a slave
to determine nezek (“nezek—how so?”), which Roman law never did—such damage was instead
recoverable under a flexible iniuria (see Gaius 3.225. for an outline of this process). However, he
does not note that the Mishnah is the only Eretz Yisraeli law book that refers to this rule (and I do
not believe it is in the Tannaitic midrashim either): the Yerushalmi never refers to it, nor
comments on it, though the Mishnah is quoted in full in ms. Escorial.
Therefore, I think we need to consider the following question: is it possible that the Tosefta
does not know this rule?
Let us examine the Tosefta parallel to this mishnah. The Tosefta asks the same question
—“nezek—how so?”—but its answer is difficult to understand at first.
Tosefta Baba Kama 9:2-3
2. With nezek—how so? If he struck him and cut off his arm, or cut off his leg, they don’t see him as one
who makes a sela per day or as one who makes a maneh per day, but they see him as one who is a lame
guarder of gourds. And if you say that justice has suffered, justice has not suffered for he already gave him
the value of his arm and the value of his leg.
3. But, if he struck him and his arm swelled, or he struck him and his leg swelled, they see him as one who
he makes a sela per day—they give him a sela per day; maneh per day—they give him a maneh per day.
And they give him all of his nezek…
In the frame of our Mishnah, the Tosefta doesn’t answer the question about nezek. Instead, it
gives an answer about shevet!

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There are two solutions to this problem:
1. The Tosefta knows the Mishnah and assumes you do too. Even though the way the
question is framed is not fitting to the answer, it began copying the form of the Mishnah
and added its own case, one that is not clarified by the Mishnah (since the Mishnah never
mentions the two types of shevet in the two different scenarios).17
The way you are to
read this is as follows: “How do you work out the nezek payments? You evaluate them
like a slave. Additionally, the other payments are affected by the kind of damage.”
2. The Tosefta does not know the Mishnah and knows nothing about this rule of evaluating
someone as a slave. It is talking about a generic case of habalah, and then goes through
explaining the consequences regarding all of the different payments (it continues to
discuss ripui immediately afterwards and its limits). The way you are to read this is as
follows: “How do the five categories work in a case of damage?” The question, in this
reading, has nothing to do with how nezek is calculated: just how the laws of habalah
work in general.
Option 1 requires adding a lot of words to the question. In contrast, option 2 is actually very
clear. Therefore, I think there is no necessary reason to understand the Tosefta in light of the
Mishnah’s evaluation procedure. I will try to reinforce this by showing how incoherent under-
standing this question and answer is with the Mishnah.
Firstly, if the Tosefta copied the phrase “nezek—how so?” from the Mishnah, why did it stop
there? The Tosefta does not ask this question of the other categories like the Mishnah does. So
why copy this phrase at all?
Secondly, the Mishnah clearly thinks that nezek means serious, permanent damage, like loss
of limb, since the evaluation procedure involves finding a change in the value of a person (just as
in Lex Aquilia, see D 9.2.27.17, Ulpian). But in the Tosefta, in the second case (9:3) which
appears to be a case of temporary damage, it says “and we give him all his nezek”! The whole
point of the above quoted passage is to show that there are two kinds of nezek that lead to two
kinds of shevet; this seems in contadiction with the Mishnah.
Thirdly, we will appeal to Roman law. Nowhere does the laws of iniuria or Lex Aquilia give
practical guidelines for evaluating the objective value of a free person. The damages are up to the
individual victim or judge. The Digest expresses discomfort at the idea that a free person could

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have value at all (D 9.3.1.5., Ulpian), and so does the Talmud Bavli, as Pomeranz discusses.18
There is the “demei yado” and “demei raglo” which the Tosefta refers to,19
but it does not specify
how this is to be calculated.
I want to suggest that nothing compels us to understand the extra-Mishnaic Tannaitic
literature as knowing about this rule of evaluating a free person like a slave. Once Pomeranz
draws us to the conclusion that there was another option available, which became a problem in
Bavel, it leads us to the conclusion that other sources may not have had this problematic rule.20
Once we realise this, we are left with two options: either all the other Tannaitic texts were
assuming this rule and never stating it; or they did not have this rule at all,21
and were assuming a
system similar to that of Roman law, which did not need objective specification because it was
arbitrary in each case. It is actually an excellent implementation of the standard understanding of
the miscarriage case in parashat Mishpatim, that the payment should be based on reckoning—so
this method even has support from the Torah.
Let us be clear: there is an area of Roman law where people are evaluated like slaves, and
that is Lex Aquilia, because the people involved are slaves. In Roman law, injury to a free person
is covered by the Twelve Tables and the Lex Cornelia. The Tosefta here is talking about free
people as much as slaves, since there the laws are not substantially different (as opposed to in
Roman law; see the conclusion). It is thus combining two distinct areas of Roman legislation
regarding physical damage to people, one of which has an objective method for evaluating it, and
one of which does not. The Tosefta is silent as to the method of evaluation, so it does not seem to
be difficult to argue that it was assuming a similar structure as in Roman law: evaluate slaves
because we are able to do so, and assess the damage to a free person on a case-by-case basis.
Putting them together into the same phrase brings the illusion that the evaluation method may be
the same. But this is only in comparison with our Mishnah which actually asks and answers the
question about how to evaluate nezek; the Tosefta does not.
It seems like, in response to this, the Mishnah may be trying to align nezek with Lex Aquilia,
and in doing so generating the new idea that free people can be evaluated as slaves.22
In summary, it is possible—and in my view, likely—that the Tosefta (and indeed all other
Tannaitic texts that are not the Mishnah) imagines compensation to free people to be generated
by the same principles as iniuria, and not by those of the Lex Aquilia.

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Intentionality
The Twelve Tables seems to be concerned with objective results; intention plays little or no part,
and it treats crimes both accidental and willful. Pólay notes that in the Republican sources, no
explicit stipulation of intention was included for the iniuria cases. However, he argues this was
because the crimes covered under iniuria were always obviously intentional.23
Thus at an early
stage, intentionality was an essential part of iniuria.
Thus, the Digest is bristling with examples of this principle (D 47.10.3.1., Ulpian;24
D
47.10.4., Paulus; D 47.10.15.48, Ulpian; D 25.4.1.8., Ulpian; D 47.10.3.2., Ulpian; and see also
Justinian’s Codex, C 9.35.5.). It can also be important for Lex Aquilia (D 9.2.9.4., Ulpian; D
9.2.5.4., Ulpian), but the latter is broader since it can also include negligence (D 9.2.5.1.,
Ulpian).25
In our Mishnah, the requirement for intentionality in determining boshet is expressed as
exegesis on “Shalhah yadah” from Deuteronomy 25:11 (the most explicit case of talion in the
Torah). This midrash is taken from from Sifrei Devarim 292, and Midrash Tenaim Devarim 25.
However, this exegesis is not brought in the Tosefta, and the Yerushalmi includes a series of
different derashot based on the same verse with different results, derived from Sifrei Devarim
293, and represented also in Midrash Tanaim Devarim 25.26
Further, neither Leiden nor Escorial
actually quote the end of this Mishnah, seeming to replace its derash with this alternate view! It
is very hard to know what to make of this: is the Yerushalmi trying to explicitly disagree by
replacing the Mishnah’s exegesis with the other half of its sources? Or are they trying to cover all
bases by bringing the other half, not quoted by the Mishnah? I think there’s no way to tell and it
would be easy to read too much into the Yerushalmi’s silence on this issue.
This leaves us with an open question: what does the Tosefta think about intentionality in
boshet, since it quotes neither school of midrashim on this verse? Perhaps implicit in the words
bushah and bizayon, the terms in the Tosefta for embarrassment, is intentionality. This would be
similar to the earlier Roman sources that also did not specify the requirement, but that did not
mean it was not necessary. But we cannot answer this with the information so far presented. Let
us instead turn to the place of intention in the other four categories and see if it can be used to

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answer our question.
Our Mishnah never states a requirement for intentionality in the other four categories.
However, there is one mishnah which may imply this. We will discuss it and its parallels in the
Digest and Tosefta (also, see Paulus 5.4.2.).
Mishnah Baba Kama 8:4
A deaf person, a lunatic, and a minor—their meeting is bad: one who injures them is liable; but if they
injure others, they are exempt.
D 47.10.3.pr-1., Ulpian
It is said, by way of reciprocity, that those who can suffer an injury can also commit it.
(1) There are, however, some persons who cannot do this, for example, a lunatic, and a minor who is not
capable of criminality, since they can suffer injuries but cannot commit them; for as an injury can only take
place with the intention of him who commits it, and the result will be that such persons, whether they resort
to blows, or use insulting language, are not considered to have committed injury.
The direct comparison of these two sources should be somewhat striking. Both exempt
lunatics and minors from committing injuries.27
They also both do this with a very similar
structure: by mirroring the two cases, treating together the people as perpetrators and victims.
The break of reciprocity (that people who injure are liable for injuries), normally a part of
iniuria, is expressed in the Mishnah as pegi’atan ra’ah—but it clearly expresses the same idea.
The Digest here makes their exemption specifically about the intention required to commit
the injury. What does our mishnah think about this? Why are these people exempt?
I think essentially, you could argue for two possibilities: (i) it is about intention—just as in
Roman law—for all cases of habalah;28
(ii) it is about mental capacity, not intention; after all,
someone with full mental capacities would still be liable for damages they inflicted
accidentally.29
On the other hand, it’s important to remember that the Roman sources may think
this also: just because someone who is mentally capable is exempt from iniuria without
intention, they are still liable for the damage they inflict accidentally under something like Lex
Aquilia. Once again, the Mishnah’s combination of these two distinct areas of Roman law leads
to ambiguity in how to apply our knowledge from the Roman sources to the Rabbinic ones.

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We are thus left with not knowing exactly how much intention plays a hand for the Mishnah
in habalah writ large.
Let us briefly deal with the Tosefta parallel before moving onto the question of intention in
the Tosefta.
Tosefta Baba Kama 9:13
One who injures a deaf person, a lunatic, or a minor, is liable in four items and exempt from boshet, since
they do not have boshet.
Rabbi says: I say a deaf person has boshet, a minor does not have boshet, and, [as for] one who injures a
lunatic: sometimes he has boshet, and sometimes he does not have boshet.
A blind person—Rabbi Yehudah says: He does not have boshet; but the Sages say: He has boshet.
This source is actually drastically different from the Mishnah and the Digest above:
1. It never addresses the case of people without boshet damaging others—would they be
exempt according to the Tosefta?;
2. There is no discussion of the blind person being exempt in Roman law or the Mishnah;
3. It makes the injured deaf, lunatic, and child exempt from receiving boshet, which the
Mishnah never does;
4. It also includes Rabbi’s dissent from the majority, which would bring it closer in line with
the Mishnah (not precisely, since they seem to disagree on the deaf person and child).
Point 1 would suggest that this has nothing to say about the role of intention, since we don’t
know if they’re liable as perpetrators. However, I would like to suggest that there is an ambiguity
in the phrase “he has boshet” or “he does not have boshet”. Does this mean only that others who
injure them are exempt from boshet? Could it, rather, be the same as the Digest’s claim above,
that in general the capacity of injuring and being injured are linked? In other words, does it mean
“the experience of boshet”, or the “capacity to operate in the laws of boshet”? The wording of
this section suggests the former, but it does not rule out the latter.30
Other places in this chapter also fail to decide the issue.31
In summary, both the Mishnah and the Tosefta on our chapter could be read as making
intention a requirement to be liable for all five categories. The Mishnah certainly requires

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intention for boshet; the Tosefta is not explicit about this issue and could be read either way.
The fact that both of these readings are possible, however, seems surprising in light of other
Rabbinic literature, since the question of intention for nezek is dealt with decidedly in the
Mekhilta de-Rabbi Yishmael. In at least two places, the fact that accidental injury incurs
monetary payment is made abundantly clear!32
Similarly, a derash in the Yerushalmi (6b)
explicitly entertains a distinction between intentional and unintentional injury, and rejects it—
saying that all nezek, intentional or unintentional, requires a monetary payment (paraphrasing
some of the earlier midrashic material).
Are we supposed to read the Mekhilta and/or the Yerushalmi into the Mishnah and Tosefta?
Maybe, but the fact that this is not a necessary reading of the sources should be cause for pause.
Had we not known the Roman law, we may not have read so closely and just assumed con-
formity with the other sources. Knowing the Roman law makes us ask a question me may not
have asked, and realise that the sources are not as clear as we might have thought.
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Rank of perpetrator and victim
In Roman law, the punishment for iniuria was always dependent on the rank of the people
involved (D 47.10.15.28., 47.10.17.3., Ulpian; D 47.10.45., Hermogenianus; Paulus 5.4.10.). In
many cases, the disparate ranks of the litigants would upgrade a normal iniuria to one that is
particularly serious (atrox).
Several phrases in our Tosefta and Mishnah indicate the laws are based on social rank, but all
of them have textual difficulties. To further compound the matter, both works include fixed fines
that appear to be for boshet payments.33
I will endeavour to explain each ambiguous phrase, as
well the relationship between the variable payments and the fixed fines.34
Mishnah Baba Kama 8:1 (end)
Boshet—everything is according to the one who embarrasses and the one who is embarrassed.
This phrase actually appears twice more in the Mishnah. We will see that in both of the other
sources, this phrase has consistent meaning.

15. 15
Mishnah Arakhin 3:4
With the raper and the seducer, [the penalty] can be lenient or serious. How so? One who rapes or seduces a
great priestly woman or an insignificant Israelite woman, he gives fifty selaim. For boshet and pagam,
everything is according to the one who embarrasses and the one who is embarrassed.35
Mishnah Ketubot 3:7
Which is boshet [for a raped or seduced woman]? It is all according to the one who embarrasses and the
one who is embarrassed.
Pagam? They see her as one who is a slavewoman being sold, [and compare] how much she was worth,
and how much she is worth [now].
Fine? It is equal for all people.
Anything which has a measure in the Torah is equal for all people.
Both of these sources are regarding the payments for a raped or seduced woman. So how do
the boshet payments work in this situation? The rapist and seducer has a fine that they have to
pay (to the men who control the woman) according to the Torah. On top of this, the Mishnah
imposes a variable payment taking into account the social class of the woman and the
perpetrator. Thus, the phrase confirms that our reading of our Mishnah is indeed similar in this
regard to the Roman law—compensation for injury depends on social class.
However, just as in the rape and seduction case where the variable fines are on top of fixed
fines, perhaps it is possible that here too the boshet is an additional payment on top of a fixed
fine? There are at least two possible ways of understanding this interpretation:
1. The fixed fines are those listed in Mishnah 8:6. This line would then be coming to clarify
the relationship between the fixed fines and the variable boshet payment: you pay both.
The difficulty here is that these fines, unlike those of rape, are not mandated by the Torah
(though the Tosefta version of this may mitigate this issue, see below).
2. The fixed fines are the nezek payments, which the Mishnah thinks are objective assess-
ments based on slave market prices (perhaps we could include the other three categories
also, which also have somewhat objective measurements). The strength of this option is
that these fixed fines are indeed mandated by the Torah. We are then left with having to
explain the fixed fines of 8:6.

16. 16
I suspect option 2 is the most likely interpretation of the Mishnah, but we will return to
option 1 for the Tosefta.
Next to the fixed fines is also a cryptic phrase (8:6): “Everything is according to his
honour”.36
The vast interpretative problem is that a variable fine contradicts the fixed fines above
and the story of Rabbi Akiva below, who fines someone for exactly the amount proscribed
above! What is this phrase supposed to mean?
Again, we can turn to a mishnaic parallel to understand it. After describing the various things
a man is required to provide his wife with through an agent, the anonymous mishnah clarifies:
Mishnah Ketubot 8:9
… When do these words apply? Regarding the poor of Israel. But regarding the honoured, everything is
according to his honour.
“Honoured” here must mean, essentially, wealthy. Here, this phrase comes to clarify that all
the laws in the previous mishnah were actually the minimum amounts required—one is required
to do more, whatever is appropriate to their economic status.
Transferring that meaning here, it would also imply that the listed fines are the minima. If the
people37
involved in the case required it, then the fines would be greater. With only one example
to compare to, however, it is also possible that these are maxima.
It is also interesting to note—and hard to draw any conclusions from—that neither of these
lines are quoted or discussed in the Yerushalmi manuscripts. Instead, it brings more fixed fines—
not mentioned in the Tosefta or Mishnah—for other actions (8:6 / 6c), generally of much lower
value than those of the Mishnah and Tosefta. How are these fines integrated with the boshet
payments? Are these even specifically boshet cases at all? After all, two of the cases are
“kicking” and “kneeing”—they sound like they could be merely non-serious damages.
Immediately following these fines in the Yerushalmi is a cryptic statement of Reish Lakish:
Yerushalmi Baba Kama 8:6 / 6c
Someone said in the name of Rabbi Shimon ben Lakish: One who embarrasses a zakein, he should
certainly38
pay him the value of his shame.
[This is like when]39
a person angered Rabbi Yehudah bar Haninah. The case came before Reish Lakish

17. 17
and he fined him a gold litra.
What is he coming to clarify? Would we not pay shame payments to a zaken? P’nei Moshe
understands this to clarify that a zakein needs additional boshet payment; this is likely the sense
of the statement, but far from obvious.
Even if it is, several questions remain unanswered. What do we mean by zakein, since it can
mean elder or rabbi? How are we supposed to judge this compared to the story below, where
Reish Lakish fines someone a gold litra for angering a colleague? How does it interact with the
principle “everything is according to his honour”? Is it a support for it—in which case, he would
be making sure we include the factor of seniority/learning along with rank—or a subversion—in
which case he would be clarifying the Mishnah is not really about rank, but seniority/learning?
These questions are basically unanswerable. If pressed on the latter, however, I would
suggest that the Yerushalmi is at least somewhat a corrective of the Mishnah’s rule. The Mishnah
seems to mean “honour=wealth”, based on the parallel discussed above; Reish Lakish is
clarifying that it is not only Roman values of rank and wealth that count, but certainly more
traditional “Jewish” values too, such as seniority and/or learning.
We have now discussed the conflicting evidence in the Mishnah and Yerushalmi. Finally, we
turn to the Tosefta, which includes a line not codified by the Mishnah:
Tosefta Baba Kama 9:12
Being embarrassed by a yakir is not similar to being embarrassed by a pagum.
First, let’s define the terms. Yakir is used of the rich in Mishnah Yoma 6:4; that seems to be
its meaning here too. Pagum is normally some kind of lineal taint (cf. Mishnah Kiddush 3:12),
but we saw above how the same root relates to damage of a raped woman, such that her standing
and marriage prospects are reduced. Thus it seems reasonable to understand it as some kind of
socially debilitating trait—whether related to lineage or not—and I offer the translation “pariah”.
This Tosefta, then, seems to be very similar to the Mishnah’s phrases above. It is also
especially evocative of Roman law—it’s not just someone’s honour, or according to the
perpetrator and victim, or other vague phrases, but it specifically calls out the rich and the

18. 18
pariahs. In a way, the Mishnah’s version of this has been softened and abstractified compared to
the Tosefta.
The Tosefta also has a different list of fixed fines (in its language, “insulting strikes”, 9:31),
also derived from Sifra Emor 14, all of which have a fine of 400 zuz (one of which is being
slapped with the back of the hand). Here, however, the fixed fines are followed by three
prooftexts involving someone being slapped in the face—clearly as some kind of ultimate
dishonour—and there is no addendum like in our Mishnah to suggest these might be variable.
So we come to exactly the same question we had on our Mishnah. What is the force of these
“insulting strikes”? How do these interact with the principles of variability espoused above?
There are at least three options:
1. These are fixed fines in addition to the boshet payments dependent on rank, which
matches up with option 1 on how to read Mishnah 8:1 above. This has a surprising
benefit of perhaps explaining the point of the prooftexts: since the fixed fine in our
parallels were derived from Scripture, perhaps these Scriptural proofs are designed to
legitimise these fixed fines separate from the boshet payments and to require one to pay
both?
2. These are fixed fines for actions that otherwise would not be actionable under any of the
five categories, fixed regardless of rank. One possible support for this is the Rabbi Akiva
story in Mishnah 8:6: he charges a total of 400 zuz, and there is no mention of additional
boshet payments.
3. These are guidelines for how much to fine someone boshet—they are not additional to
the boshet payments, they are the boshet payments. The Yerushalmi seems to support
this: in the explanation of a baraita on 6b, one of the Tosefta’s “shameful strikes” is used
as a clear case where one would be liable for boshet (hitting someone with a roll of
papers). This also generates a sensible read of the Rabbi Akiva story.
To put this all together now, it seems to me that there is one simple way to harmonise all of
this material: the fines are example payments, giving rabbis an idea of the scope of boshet (and
perhaps also other categories from the Yerushalmi’s list?).40
This is my sense of how to read the
sources:
• The Tosefta took the actions in the Sifra and assigned a sample value to them. The editor

19. 19
never meant for them to seem in conflict with the earlier variability. It added the proof-
texts probably because the idea of boshet was on shaky ground from the Torah alone;
they are a way of anchoring the concerns for honour in biblical language. The act of
assigning fines is also very consistent with biblical norms (and the Twelve Tables), and it
is possible this was also part of the impetus to add these here, lest one think that boshet
was arbitrary and had no basis in Scripture and its laws.
• The Mishnah also took actions from the Sifra and assigned sample values to them. It
added the line “it is all according to his honour” in order to clarify that these are not
actually fixed fines at all, but examples; this brings it line with the description at the end
of 8:1. Additionally, the Rabbi Akiva story was generated out of one of these actions—
uncovering a woman’s hair in the street—to illustrate the importance of the honour of
even low ranking Jews, as a sort of corrective for the otherwise very wealth-biased
construction of the laws.
• The Yerushalmi understood these fines as sample values and added its own list, with new
examples and new values. It also included one of those actions from the Tosefta as an
example of boshet payment, also proving that this is how it understood the received
sources.
This is not the only reading of the sources available, but I think it is the clearest, simplest,
and accounts for the most data. In the end, we are left with a law that is remarkably inline with
Roman iniuria. The main difference is that we have some examples of how much one should
pay.
12,924
Circumstances of crime
In the Roman laws of iniuria, the circumstances of the crime are vital in determining the extent
of the injury. By example, Paulus names several factors (also very similar to D 47.10.7.8.,
Ulpian/Labeo):
Paulus 5.4.10.
An atrocious (atrox) injury depends either upon the place, time, or person; upon the place, whenever it is

20. 20
committed in public; upon the time, when it is committed by day; upon the person, when it is committed
against a senator, an equestrian, a decurion, or any other person high in authority; and whether a plebeian,
or a person of inferior rank commits the injury against a senator, a Roman knight, or a decurion, or whether
a plebeian commits the injury against a magistrate, an ædile, or a judge, or against all of them.
Later literature also names some specific locations, like the theatre, that can also be enough
to upgrade a minor iniuria to atrox (D 47.10.9.1., Ulpian).
Of course, this is immediately evocative to Tosefta 9:12:
One who embarrasses his fellow naked, thus he is liable; and embarrassing him naked is not similar to
embarrassing him clothed. If he embarrassed him in the bathhouse, thus he is liable; and embarrassing him
in the bathhouse is not similar to embarrassing him in the street. Being embarrassed by a wealthy person is
not similar to being embarrassed by a pariah. An adult who [embarrasses] is not similar to a child who
[embarrasses],41
whether it is adults who are embarrassed or children who are embarrassed.
Two of Paulus’ elements are there: place and person (time is not). An additional factor also is
present: whereas Paulus only discusses permanent status of the people involved, the Tosefta
includes their temporary state. In other words, in addition to their rank, the state they are in at the
time of injury is also taken into consideration, e.g. whether they are clothed or naked.42
The
inclusion of the bathhouse is also worthy of note, since it is a very specific example not listed in
the Roman legal sources; the Tosefta similarly does not specify the concern of private vs. Public,
though it may be there implicitly (see below).
There is, of course, a textual question we need to answer. The Tosefta never actually tells us
which of the options are worse, just that they are “not similar”. So which is it? Is being embar-
rassed in a bathhouse worse than the street? I think in the abstract, we could come up with
reasons for both sides.
Let us deal first with the case that appears clear: one of the main rules of Roman honour is
that being embarrassed by a lower class person is significantly worse than being embarrassed by
a higher class person.43
In that case, it is the case mentioned second which is atrox. Perhaps we
can read this through the entire passage that the second listed case is always the more serious of
the two?

21. 21
The version and explanation of this baraita in Yerushalmi Ketubot 3:8 / 27d may help us
with the last case. It quotes this Tosefta and then continues:44
The shame of an adult is greater [i.e. he has to be paid more than a child if embarrassed] and his damages
are lesser [i.e. he has to pay less than a child who embarrasses]. The shame of a child is lesser and his
damages are greater.
This would support our reading of the baraita: the second case (children) is worse than the
first case (adults).
Reading this back in to the first cases, we would come to the conclusion that one who
embarrasses someone clothed would have to pay more than if they are naked, since they have
already embarrassed themselves by being naked. Similarly, embarrassing someone in the street
would be worse than embarrassing someone in the bathhouse, since by going to a bathhouse he is
already engaging in an embarrassing action—going somewhere in order to bathe naked in front
of other people—and, perhaps, because there are more people to see it in the street. This also
works well with the clarification that one is liable even for one who is naked or in the bathhouse:
those cases are so unimportant that you might think they don’t have boshet at all, but the Tosefta
clarifies that they do.
With the Tosefta alone, though this reading seems good, we would have to admit that the
opposite was also possible (that someone who was naked or in a bathhouse was in an already
vulnerable state, and thus embarrassing him would be worse than if he was not vulnerable—
clothed or in the street). But comparing to Paulus, we can perhaps add weight to this proposed
reading, since he also thinks that the more public the act is the more serious it is, and certainly
the street is more public than the bathhouse.
Let us turn to the Mishnah 8:1 (end) briefly for its additional cases, the blind person and
sleeping person. It seems that the point of our mishnah here is that you might think you would
not have to pay boshet to a sleeping or blind person, since those people may not notice that they
were embarrassed. Therefore, it tells you that they require payment, even if they did not actually
experience any shame.
This clarification is reminiscent of this passage in the Digest:

22. 22
D 47.10.3.2., Ulpian
Hence, anyone can suffer an injury without perceiving it, but he cannot commit one unless he is aware of it,
even if he does not know against whom it is committed.
Not only does he agree with the Mishnah that you can suffer an injury without noticing, but
the Mishnah is actually about to go directly onto discussing the requirement of intention in
boshet; this source is thus a very close parallel. So the context of the crime is one point of contact
with remarkable accord between the Roman laws and the Rabbinic sources. It seems clear that
they share a set of cultural assumptions about the nature of shame:
• Place: The more public the location, the more embarrassment;
• Status: The lower the status of the perpetrator (and conversely the higher status of the
victim), the more embarrassment;
• When the person did not feel shame at the time: One could be liable even if no shame was
felt by the person during the time of the injury;
As Pomeranz notes,45
we also have found one major difference between the Roman and
Rabbinic laws here: it seems that the Digest would likely make someone who embarrassed a
naked person exempt from iniuria—since in the Roman system someone can give up their
honour—while our Mishnah and Tosefta both agree that he would be liable for boshet.
I also wonder whether the use of a bathhouse as an example of a light case of boshet, since he
has already embarrassed himself, gestures towards another point of difference between the two
attitudes. Does this indicate a dim view of Roman bathhouses in general?
12,924
Verbal insults
A key feature of iniuria in Roman law is that it includes verbal injury as well as bodily. Jurists
continually list cases of iniuria including many non-physical ones. Gaius has a particularly clear
(and early) articulation (see also Paulus 5.4.1.; D 47.10.1.1.-2., Ulpian/Labeo):
Gaius 3.220.
Now, contempt (iniuria) is committed not only when someone is struck with a fist or with clubs, or even

23. 23
flogged, but also when a vocal attack is made on him, when his goods are advertised for sale as a debtor’s
by someone who knows he owes him nothing, when someone writes a defamatory book or poem about
someone, or when someone harasses a lady or a youth; and finally in many other ways.
Gaius includes a large variety of non-physical attacks in his definition of iniuria. Our
Mishnah, on the other hand, implies46
that boshet requires physical actions. The only action it
mentions specifically when introducing boshet is physical (falling from a roof), and then we have
our list of fixed fines. In a similar manner, the Tosefta also, when introducing boshet, names no
actions at all, but when discussing the fixed fines, only physical actions are included. Thus also
the Tosefta appears to imply that physical actions are required.
This evidence becomes conflicted in the Yerushalmi. When it (8:1 / 6b) explains our Tosefta
(9:1b) with different actions that lead to payments of different numbers of categories, it
concludes with a physical action that leads to a boshet payment (the roll of paper).
Later on (8:6 / 6c), a question is asked about one who spits at someone—what happens if the
spit does not reach the intended target? Rabbi Yose answers that he is exempt, using the broad
statement: “One who insults/embarrasses47
his fellow with words is exempt.” It seems thus that
Rabbi Yose and the author of those explanations certainly agrees with this reading of the
Mishnah and Tosefta, in a way that seems like a clear and broad rejection a major body of
Roman iniuria.
This is true up to here, except for one very unusual piece of datum, already quoted above:
Yerushalmi Baba Kama 8:6 / 6c
… A person angered Rabbi Yehudah bar Haninah. The case came before Reish Lakish and he fined him a
gold litra.
What exactly did this person do? This certainly could be a case of physical action that
angered the Rabbi. Perhaps he pulled his hair or slapped him, or any other of the list of actions
we have from our Tosefta and Mishnah. If so, then this wording would be extremely strange—
surely it just would have said outright “a person slapped Rabbi Yehudah bar Haninah”, and so
on? Rather, it seems better to understand that Reish Lakish holds one can be held liable under
boshet for mere insult!48

24. 24
This should give us pause to reevaluate the earlier sources. How could Reish Lakish have
done what he did? At very minimum, it seems that the role of insult in laws of habalah was an
amoraic debate. At maximum, it could be that the implications of the earlier literature are not to
be taken seriously: when the Mishnah/Tosefta says “mevayesh”, it means embarrassing in any
way, whether in the body or with words; when it lists some actions that are liable for boshet, it is
adapting an earlier list, derived for another purpose.
What might help here is further discussion of the semantic field of iniuria and habalah. As
discussed above, iniuria is primarily insult and secondarily bodily harm (because it causes
insult). What meaning is encompassed by habalah?
Firstly, lahbol is clearly broader than “serious injury”, since it even includes trivial injuries
(T 9:1). The fact that this term introduces our chapter also implies that it encompasses all of the
five categories—at least according to the chapters’ editors. It appears to be more general than (a)
lehazik (e.g. M 8:1, where it may be identical; T 9:11, 32) or (b) lesimei and likto’a (M 8:7; T
9:17, 32)—they refer to more serious injuries, or more specific kinds of actions. Lahbol may,
however, be equivalent to lehakot (M 8:3; T 9:11 [father-son], 20, 22, 26-7, 31, where it is almost
certainly used because of the biblical texts; e.g. T 9:11 [court emissary], where it seems to be
interchangeable with lahbol)—broadly, lehakot seems to be a biblically-influenced lahbol.
Secondly, we should note that there are two terms used in these sources that are linguistically
related to one of the five categories: lehazik and levayesh. There is one other category that we
could have a verbal form of—letza’er—but we don’t (obviously one can’t injure someone using
a verb formed from shevet or ripui). As seen above, lehazik is extremely semantically similar to
lahbol. This leaves us with levayesh as the only specific verbal form related to a category. Why
the singling out of this term? What is the difference between lahbol and levayesh?
I think there are at least two answers based on the Roman sources:
1. The distinction between lahbol and levayesh is something akin to the distinction between
verberare and pulsare that we saw Ulpian make above in the Digest—lahbol is to strike
with pain, levayesh is to strike without pain. This would leave insults out of the discus-
sion, and explain why the only boshet examples (with no other applicable damages) in
our Mishnah and Tosefta appear to be examples of pulsare.
2. The distinction between lahbol and levayesh is the difference between Gaius’ physical

25. 25
examples and his verbal ones—lahbol is to strike, causing (some kind of damage? and
also) embarrassment; levayesh is to insult (including an “insulting strike” without pain?).
The examples are derived from a slightly different discussion, and adapted for use here.
The reason these compilations included no examples of insults is not because they didn’t
think one would be liable—indeed, Reish Lakish did think one would be liable—but
because it was obvious that such actions were included in levayesh. After all, they live in
a society dominated by iniuria.
The final word is, thus, undecided. It seems to me that option 1 is slightly more likely. But
again, the fact that option 2 is even possible is extremely telling of how much Roman ideas of
iniuria have penetrated Rabbinic discussions.
12,924
Conclusion
We have seen a range of examples, some very close to their Roman parallels, some very far,
others unclear, with pro-Roman and anti-Roman readings possible. So it remains for us to ask:
how influenced are these Rabbinic texts by their Roman counterparts? Is there a distinction
between the different texts? Are some more Romanised than others? What explains the differ-
ences in approaches between them?
Obviously, there were many points of contact I was not able to cover. But I will offer some
general thoughts based on the conclusions presented here, and some first impressions in other
areas.
The Tosefta on our chapter is surprisingly rich with Roman parallels. Many of the cases and
concerns are similar. In addition to those already covered, cases discussed by both literatures
include:
• slaves, as victims and perpetrators (T 9:8, 10, 20-7; victims: e.g. Gaius 3.223-5., D 9.2.9.
all, D 9.2.27.6,17., D 9.2.27.27., D 47.10.1.3., D 47.10.15.44., D 9.2.22.1.; perpetrators:
e.g. Paulus 5.4.22., D 9.2.44.1., D 47.10.9.3., D 47.10.17.4., D 47.10.17.7.);
• wives, as victims and perpetrators (T 9:14, 22; e.g. Gaius 3.221., Paulus 5.4.21., D
47.10.15.22., D 47.10.1.2., D 47.10.9.3., D 9.2.27.30.);
• children, as victims and perpetrators (T 9:8, 10; e,g, D 47.10.7.3., D 47.10.5.6.,

26. 26
47.10.17.13.);
• hitting a pregnant woman and causing a miscarriage (T 9:20; D 9.2.27.22.);
• causing damage to someone and killing someone else at the same time (T 9:17; D
9.2.32.1.);
• hitting someone who ought to have survived, but then died (T 9:5-7; D 9.2.7.5., D
9.2.15.1., D 9.2.47.);
• injury taking place during instruction (T 9:11; D 9.2.5.3., D 47.10.15.38.);
• self-defence (T 9:16; D 9.2.45.4., D 9.2.52.1.);
• negligent doctors (T 9:11; D 9.2.5.3., D 47.10.15.38.).
Several things should be clear about these comparisons. First, many of the cases are not
identical, but reveal similar concerns and similar analyses—comparing two texts is not to say
that the outcome is the same. Indeed, one of the sharpest divergences of Rabbinic law from
Roman law is how to deal with injuries to, and murders of, slaves.
Secondly, a great many of these cases are not represented in the Mishnah (such as the
discussion of evaluations and unexpected results), and some which are dealt with at great length
in the Tosefta are only dealt with in passing in the Mishnah (such as laws of slaves, also dealt
with much more extensively in the Yerushalmi). That makes the parallels even more noteworthy,
since some but not all Rabbinic texts refer to them, or dwell on them.
Thirdly, just a cursory glance shows that the volume of some of these topics seem correlated.
A large portion of the Tosefta deals with slaves; a vast amount of Roman literature is devoted to
them. Other cases, like causing a miscarriage or negligent doctors, receive small amounts of
attention in both literatures (even though the pregnant woman is the paradigmatic case of talion
in Mishpatim, so you might expect it to get a lot of treatment just based on the Torah precedent).
Finally, this is not to elide the many subjects dealt with only in one of the literatures and not
the other. For example, libellous songs, one of the foundational cases of iniuria in Roman law, is
never mentioned in Rabbinic literature; nor are other important cases, like being shouted at by a
crowd, or a matron being deprived of her attendant. So too, the Rabbinic texts evince their own
concerns. Self-harm is not discussed in the Roman literature, nor is forgiveness, nor (for obvious
reasons) causing damage under the compulsion of non-Jews. Also, many of the details even in
cases dealt with in both literatures reveal particular concerns to each side—much of the attention

27. 27
on slaves in the Tosefta is focussed on when they go free because of their injuries, but since there
is no corresponding law in Roman literature, no attention is given it.
Add to this the detailed evidence presented heretofore—the fact that, in general, the Tosefta
can be read as upholding whole areas of Roman jurisprudence regarding iniuria, even while
those conclusions are uncertain—and I think we can begin to build a picture of broad similarities
between the Tosefta and many of the Roman sources, as preserved in Gaius, Paulus, and the
Digest. As a general rule, it seems that when the Tosefta diverges explicitly from Roman norms,
it is because of biblical precedent. This is as you would expect for two highly casuistic legal
systems. Similarly, when Roman law diverges from the Rabbinic discussions, it is often guided
by the sources of iniuria and property damage that we discussed above.
Compared to this, the Mishnah is decidedly counter-cultural. Firstly, it creates a principle of
evaluating free people as slaves—indicating a certain disregard for the free person’s honour. It
also is much more specific as to how one evaluates injury, much more than the Tosefta, much
more than Roman iniuria, creating as objective a guideline as it can for all five categories. And
even in the most variable and the most tied into concerns of honour—boshet—it first has softer
language than the Tosefta, and then introduces serious correctives through the mouth and actions
of Rabbi Akiva—all Jews should be considered honourable. At the same time, it betrays new
Roman influence, such as the requirement of intention in boshet—at most implicit in the Tosefta.
Of all the sources under discussion, it also displays the most structural similarities to the Roman
texts (even while the content may diverge).49
The Yerushalmi expresses a similarly complex picture of influence and resistance. Perhaps
against the earlier sources, Reish Lakish fines someone for an insult. While the Tosefta implied
that damages to a slave are paid to the slave,50
Rabbi Yohanan in the Yerushalmi (8:3 / 6b-c) says
that damages go to the master—in line with the Roman Lex Aquilia. The setam also, at the end of
the chapter (8:7 / 6c), imagines that we can evaluate the impact of a person’s actions regarding
their own honour in relation to the shame of his family and relatives, evocative of the way iniuria
was imagined as an insult to the pater familias. On the other hand, Rabbi Yose rejects one of the
central tenants of iniuria when he says that insults are not actionable by law.
What explains these differences between the Rabbinic sources? It is hard to know, especially
as the circumstances of their production are more or less entirely unknown. But it seems from

28. 28
this analysis that the Tosefta was deeply influenced by Roman laws, as was the Mishnah
(although its editor had more misgivings). By the time of the Yerushalmi, some Roman norms
have infiltrated further, even while others are starting to diverge. It would be extremely instruc-
tive were similar attitudes to be found elsewhere between Rabbinic and Roman law. Clearly,
broader investigation would be a great boon.
Pomeranz in the first part of his essay proposes two tantalising similar institutions between
Roman and Rabbinic law: boshet and iniuria, nezek and Lex Aquilia. I hope that I have been able
to seriously complicate this picture—especially in light of the other Eretz Yisraeli sources—
showing that these categories are not clear-cut in the transference from one legal system to
another. Rather, this investigation reveals a deep and complex interplay between Roman and
Rabbinic legal thinking.
12,924
Works Cited
W. M. Gordon, O. F. Robinson, The Institutes of Gaius. London: Gerald Duckworth & Co. Ltd.,
1988.
Amit Gvaryahu, “Dinei Habalot be-Torat Ha-Tanaim” (M.A. thesis, Hebrew University in
Jerusalem, 2013).
Allan Chester Johnson, Paul Robinson Coleman-Norton, Frank Card Bourne, Ancient Roman
Statutes: Translation, with Introduction, Commentary, Glossary, and Index, ed. Clyde
Pharr. Austin: University of Texas Press, 1961.
J. E. Lendon, Empire of Honour: The art of government in the Roman world. Oxford: University
Press, 1997.
Saul Lieberman, Tosefta Ki-Fshutah: Order Nezikin. New York: Jewish Theological Seminary of
America, 1988.

29. 29
Charles Henry Monro, The Digest of Justinian. Cambridge: The University Press, 1909.
Elemér Pólay, Iniuria Types in Roman Law, trans. József Szabó. Budapest: Adadémiai Kiadó,
1986.
Jonathan A. Pomeranz, “The Rabbinic and Roman Laws of Personal Injury,” AJS Review 39:2
(2015): 303-331.
Elijah Samson Rosenthal, Saul Lieberman, David Rosenthal, Yerushalmi Nezikin. Jerusalem:
Hebrew University, 2008.
S. P. Scott, The Twelve Tables, The institutes of Gaius, The Rules of Ulpian, The Opinions of
Paulus, The Enactments of Justinian, and The Constitutions of Leo. Cincinnati: The
Central Trust Company, 1932.
Ethan Tucker, Matrilineality and Patrilineality in Jewish Law and Community: Part 1. New
York: Mechon Hadar, 2015. Published online: http://www.mechonhadar.org/torah-
resource/matrilineality-and-patrilineality-jewish-law-and-community-part-1
1
I have tried to look at a range of translations of the Roman sources. When all else failed, I relied
on S. P. Scott (his translations are complete, but lacking). For Gaius, I used Gordon and
Robinson. For the Digest, I sometimes supplemented the translations from Monro. For the
Twelve Tables, I used the more recent translation of Johnson, Coleman-Norton, and Bourne
(Pharr, ed.).
2
Pólay, pp. 39-41.
3
For this interpretation of the Twelve Tables, see Pólay, pp. 71-77.
4
Pomeranz, p. 314.
5
See Pólay, p. 116, for background.
6
We also have the case of a crowd shouting at someone in D 47.10.15.4., Ulpian—see Pólay pp.
102-3 for discussion.
7
Not slaves, see Pólay, p. 118.
8
See discussion of Pólay, p. 123.

30. 30
9
Translation is New JPS.
10
The most general statement of the retaliation principle for cases of injury in the Torah is
Leviticus 24:17-22, where it is likely that it is meant literally. Still, meaning it literally and
actually carrying it out in practice are two very different things.
11
This is NJPS’ interpretation; the Hebrew is ambiguous.
12
See use of tahat in vv. 26, 36, both of which refer not to literal retaliation but monetary
compensation. Also see code of Tiglath-pileser I, http://legacy.fordham.edu/halsall/ancient/
1075assyriancode.asp.
13
Though we are focussing on the literature of Eretz Yisrael, this observation holds true for this
chapter in the Talmud Bavli as well.
14
See discussion in Steven T. Katz (ed.), The Cambridge History of Judaism: Volume 4, The
Late-Roman Rabbinic Period, p. 668.
15
For determining the correct text of the Tosefta, I have used Lieberman’s edition. For the
Mishnah, I have used the standard Bar Ilan versions, but referred to the Kaufmann manuscript if
there are meaningful changes. For the Yerushalmi, I compiled a compound text of ms. Leiden
(from Sussman) and ms. Escorial (one that is missing much, but is thought to be very authentic
to the Palestinian Rabbinic tradition, put together by Lieberman and Rosenthal). The midrash
texts I discuss I have referred to the Bar Ilan text. All translations of Rabbinic texts are my own.
16
Pomeranz, pp. 313-315.
17
In this vein, Lieberman, p. 92, says that the question should be, “How does a nezek payment
interact with the two kinds of shevet payments?”
18
Pomeranz, pp. 321ff.
19
Also demei eivarav referred to in the Tannaitic midrashim, see for instance Mekhilta de-Rabbi
Shimon bar Yohai 21:25.
20
There is likely another factor at work: that the rule only became problematic when actually
implemented, which it does not appear to be so until Bavel. This would be consistent in what we
already know about the power of rabbis in Bavel versus Eretsz Yisrael in this period, and the
increasingly canonical status of the Mishnah. We should also specifically note that there is not a
single anecdote of nezek in the pre-Bavli literature, only of boshet cases, and of those only two:
Rabbi Akiva and Reish Lakish (we will return to these below).

31. 31
21
Tosefta Baba Kama in two other places (4:7 and 6:21) mentions the phrase “kamah hu yafah”,
which would sound similar to our Mishnah. But in neither case is anything about slaves
mentioned, and the phrase is generic enough to not question the conclusions here.
22
See also Ketubot 3:7 which evaluates a woman as a slave for calculating pagam, which would
have been seen as much less problematic than evaluating a free man. Perhaps the rule in the
Mishnah is an extrapolation from the rape case? This would require more research into Mishnah
and Tosefta Ketubot. We will return to this parallel later.
23
See Pólay, pp. 52-69, for discussion of the Twelve Tables; p. 114 for a list of pre-Classical
iniuria cases and his discussion.
24
Likely not authentic to Ulpian. See Pólay pp. 96-101
25
See Pomeranz, p. 308, for his discussion of this issue.
26
From the strain of tradition that reads this section as about the rodef (in the schools of midrash,
this is Rabbi Akiva, as opposed to Rabbi Yishmael who is interested in deriving the five
categories from the Torah). See Gvaryahu, pp. 42-43.
27
Noticed by Pomeranz, p. 314.
28
Not just boshet, as Pomeranz says, p. 306. We would need to explain the second half of our
mishnah about slaves and wives, not parallelled in this way in the Roman sources. However, this
is not of much difficulty since the Mishnah itself breaks the connection between the two halves.
Wives and slaves are exempt for a reason that has nothing to do with intention. Rather, it is
because they are under someone else’s control and do not fully own property. That is why they
have to pay once they are no longer under the power of their husband/master. In contrast, the
lunatic and minor are always exempt and never pay.
29
Additionally, the fact that the Mishnah only derives intention for boshet may imply that it does
not think intention matters for any of the other four categories. On the other hand, it may think
intention matters in general but only needs to be proven for boshet.
30
You might say that Tosefta 9:12 (to be discussed below) also rules out the latter, since it
suggests that minors can embarrass others. But this may not decide the issue, since it also
suggests that minors can be embarrassed, which would be a direct contradiction of this halakhah
under discussion. It is therefore likely that they are just two contradictory traditions.
31
Here are some examples and brief discussion:

32. 32
9:15 deals with the case of someone who intended to kill but injured someone instead—they are
liable for payment. This could suggest that it is actions that matter over intentions, since he did
not intend to wound. However, perhaps since he already had intention to kill, the intention is
counted here to wound also.
9:20 deals with the case of dmei vladot, the amount that someone is liable to give the father for a
miscarriage, and the paradigmatic accidental case in Mishpatim. This seems to be a case when
someone is liable for payments despite it being accidental. However, dmei vladot is specified in
the Torah which does not take intention as a significant factor here; it is also not one of the five
categories. Thus it has enough differences for us not to be able to learn the general rule for
habalah.
The emphasis on wounding someone “more than appropriate for them” turning a lenient verdict
into liability (9:10-11) could suggest that it is results that matters. On the other hand, it could be
that wounding someone “more than appropriate” reveals that the true intention was, in fact, to
wound.
Finally, 9:18 specifies that someone who strikes their mother or father accidentally is still liable
for the death penalty. This suggests that it was considered at least plausible that accidental
damage was considered exempt. But again, this is a special case, to which the Torah specifically
grants a death penalty.
One additional case perhaps has something to say about our question, but the textual problems
are so immense that it is far from clear (for which, see Lieberman, p. 109). One possible
reconstruction (based on Tosefta Shevu’ot 6:2) is that Rabbi Yehudah makes the law dependent
on whether the litigants are friends or not (hovevin), which is very similar to the question of
whether they actually intended damage. Other manuscripts say that he is talking about wrestling
(hokhekhin), perhaps literally(?) or in court (Lieberman’s interpretation). Making sense of this
text will require further research.
32
Masekhta de-Nezikin 8 records Rabbi Eliezer’s opinion, who makes one liable for talion if it
was intentional, but liable for money if accidental. Ibid. 14 derives that nezek is in general
independent of intention.
33
See Pomeranz, p. 308, for his discussion of this issue. He notes the tension in the Mishnah but
does not try to resolve it.

33. 33
34
The list of actions are derived from Sifra Emor 14, which is a derivation of being liable for
painless strikes, though no fines are listed. We will refer to this below.
35
The phrase is then used in the next mishnah to refer to the wife whose husband falsely claims
she was not a virgin; the passage is stranger and not necessary to prove the point here. There too
a fixed fine is imposed by the Torah.
36
Note that “zeh ha-k’lal”, the strangest part of this phrase, is not in ms. Kaufmann. I will not
deal with it in this discussion.
37
Note that the phrase is ambiguous as to whether the victim, perpetrator, or both are meant. It
seems like a clear transposition from Ketubot, where there is only one man (the husband) and
thus the phrase is unambiguous.
38
This is trying to capture the doubling of notein and meshaleim in the Hebrew.
39
Introductory word in ms. Escorial and absent from ms. Leiden.
40
I said above that I will endeavour to read the Tosefta as an independent text. Here, this seems
better because this interpretation explains all the sources; in other cases, it can only explain some
of the sources. Additionally, there is no parallel with Roman law at stake in this question of
reading—it is just the extent to which the parallel exists, not the existence itself.
41
For this reading of the difficult text before us, see Yerushalmi Ketubot 3:8 / 27d.
42
It is certainly possible Roman estimates of iniuria included these factors, just as it is that
Rabbinic law included time of day. All I am noticing is their explicit absence from the sources.
43
Lendon, pp. 30-36 for introduction.
44
See Lieberman p.100 where he discusses the difference between the Yerushalmi’s interpreta-
tion of the latter phrase and that of the Geonim.
45
Pomeranz, p. 309.
46
Cf. Pomeranz, p.308, who asserts this, but actually it has to be inferred from our Mishnah.
When falling from a roof, it uses the verb hizik and not mevayesh—so is it a paradigmatic case of
boshet? As for the actions from Sifra, who says this is an exhaustive list of boshet cases? Their
very derivation in the Sifra was about painless strikes, not to cover all cases of boshet. (You
could also bring the Yerushalmi’s case on 6c, which is about to be discussed; see below).
There is another piece of (speculative) evidence to be brought in favour of Pomeranz’ claim: the
prooftext for deriving boshet is a case of action—“ve-hehezikah bi-mvushav”. Should this fact be

34. 34
read through into the Mishnah and Tosefta? This is far from certain, though possible; but do note
that the Mishnah uses this verse in order to prove something else.
47
Ms. Escorial has mevazeh (translated “insults”) here, while ms. Leiden has mevayesh. There is
probably no difference between these two terms, especially once I explained earlier the makkot
shel bizayon in the Tosefta as examples of boshet. However, it is possible that the difference is
not just semantic.
48
Also see Jastrow, p. 1398, who translates the word akpid as “insulted”.
49
I know of at least one other place where this is the case, and that is Mishnah Kiddushin 3:12,
compared to Ulpian. See Tucker, pp. 10-15. This would be a fascinating trend to study.
50
Not enough room for a full discussion here, but suffice to say that a comparison of the unusual
phrase motzi’in mi-yado in T 9:8 with 9:14 suggests the Tosefta imagines the money going from
the perpetrator to the master, and then the court takes it and gives it to the slave, presumably as
some kind of trust-fund (segulah).