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Milgram, Jonathan S.


From Mesopotamia to the Mishnah. Tannaitic Inheritance Law in Its Legal and Social Contexts.


Tübingen: Mohr Siebeck 2016. XXI, 201 S. = Texts and Studies in Ancient Judaism, 164. Lw. EUR 114,00. ISBN 9783-16-154021-9.


Catherine Hezser

The title on the front of the book by Jonathan S. Milgram does not tell us anything about its subject matter, which is revealed by the subtitle only. The subtitle itself seems too general for the actual contents of the study. Rather than providing a discussion of tannaitic inheritance law in its various redactional contexts in tan-naitic documents, the book mainly provides a very detailed philological and comparative analysis of Mishnah Bava Batra 8:5. Its main thesis is that rabbinic inheritance law was truly innovative. While it developed in the spirit of the Hebrew Bible, it was not de-rived from biblical inheritance law and its interpretation. Rabbis rather developed inheritance rules that fit the changed circumstances they lived in. Their innovations were »often the product of the adoption and adaption of inheritance customs known from other ancient legal collections in the region« (IX) and from Roman law. This ultimately leads M. to the open question how Jewish rabbinic inheritance law, and rabbinic law in general, really is.
A recurring theme that is repeated many times throughout the book but not discussed any further is the statement that tannaitic rabbis lived in and devised rules for an urbanized Jewish society in which the nuclear family and private landholdings were central: »tannaitic law reflects the nuclear family on private landholdings in urban centers«; »the tannaim and their nuclear families live and function in cities« (31). This assumption is allegedly based on Lee I. Levine’s work, The Rabbinic Class of Roman Palestine in Late Antiq-uity (Jerusalem and New York 1989), but seems to be a misunderstanding, for Levine writes: »Only in the third century did the major urban centers of Tiberias, Sepphoris, Caesarea, and Lydda (…) become centers of rabbinic activity« (ibid., 25). Surely, not all tannaitic rabbis lived in cities. A certain proportion of them, perhaps even the majority, would have lived in the countryside in the late first and second centuries C. E. The urbanization of Palestine was a gradual process that began with the Herodians, Vespasian, and Hadrian and reached its summit under the Severans in the third century C. E. only. In fact, in both the Mishnah and Tosefta villages are associated with rabbis more often than cities. The evidence cre-ates the image of a rabbinic movement that was both rural and urban at that time. Similarly, from a historical point of view, the landholding patterns of the Jewish population would have been complex and diverse, ranging from wealthy urban landlords who had their rural estates managed by (slave) stewards to rural small holders and tenant farmers. M. does not argue, however, that a small number of wealthy urban rabbis devised rules for their own elite minority. He rather makes the general claim that all tannaitic inheritance law caters to urban landholders, reflecting the rabbis’ own situation, an assumption that is not very persuasive and perhaps also not necessary, given the complexity and diversity of the regulations in question.
More convincing is the presumption that rabbis had the nu-clear family in mind when formulating their inheritance rules. Biblical inheritance law was based on the living conditions of the extended family or clan: »The extended clan resides on the jointly owned ancestral estate with a family leader at its head and in an agrarian (and male dominated) society« (19). In such a situation, male householders were interested in maintaining the unity of the property. They granted an extra portion of the inheritance to firstborns and excluded daughters from the line of succession. By con trast, rabbinic inheritance laws enable the partition of the pro-perty and include various ways of transferring and distributing assets, »even to non-family members« (39).
Fundamental to rabbinic discussions is the distinction between gifting in contemplation of death and inheriting after the householder’s death. In rabbinic as in other legal traditions, gifting was voluntary and unregulated, whereas inheriting followed particular rules. Gifting allowed the donor to make his own decisions concern-ing the allocation of his property to individuals not automatically included in inheritance laws. M.’s distinction between three forms of gifting in contemplation of death is based on amoraic terminology not yet found in tannaitic texts. It is unclear why he presents his chapter on gifting in an Appendix rather than in the main body of the text.
The four main chapters discuss important aspects of tannaitic inheritance law, mostly based on Mishnah Bava Batra 8:5. M. claims that, in contrast to the Bible, tannaim do not necessarily privilege the firstborn and are more flexible with regard to allocating property. The partibility of the property was essential, similar to Greek and Roman law that seems to reflect a similar focus on the nuclear family situation. Whereas the anonymous view in M. B.B. 8:5 rejects testate succession, the following view attributed to R. Yohanan b. Beroka seems to permit it in the case of »one who was qualified to inherit from him«, a formulation which M. associates with the non-legal Roman definition of family as descent through agnatic kinship (patrilineal descent). If this interpretation is correct, property could be inherited by descendants outside of the nuclear family, however. M. writes: »Rabbi Yohanan ben Beroka draws, therefore, from the biblical model of the clan (= mishpah.ah)« (101).
The most interesting but also most controversial chapter of the book concerns inheritance by daughters, which, according to M., is not only possible through testate succession but also through other means, »both direct and indirect« (105). Indirect forms are receiving a dowry or maintenance after the father’s death until her marriage. Direct inheritance of daughters even in the presence of sons is alleg-edly »embedded and camouflaged within mBB 8:4«, i. e. it depends on one’s interpretation of the text. The text says ex­plicitly only that »daughters receive maintenance from the father’s property«, whereas the firstborn son receives a double portion. Against M., I read the initial statement (»The son and the daughter are the same regarding inheritance«) as referring to both of them inheriting from the father’s property only and not from the mother’s, rather than to daughters being able to inherit directly, which is not stated in the text. According to the mishnah, they differ from each other in that »the [firstborn] son takes a double portion«, whereas »daughters receive maintenance« only (ibid.). Therefore M.’s em­phasis on »rabbis’ concern for the financial well-being and independence of their daughters« (133) sounds overtly optimistic.
The study’s comparative approach with its emphasis on the embeddedness of tannaitic inheritance law in its ancient Near Eastern and Graeco-Roman context should interest not only Talmudists and historians of Ancient Judaism but also scholars of ancient law and of Near Eastern and Roman history.