Horace Abram Rigg, Jr. Source: Journal of Biblical ... - YoYo.pl

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RIGG: BARABBAS 427 Now custom in Roman law is an extraordinarily elusive concept. Notions about it are vague. It does not seem to have been "a very fruitful source of law" (Jolowicz, op. cit. 365). There is no evidence to indicate that Judaea is an exception. Custom, generally speaking, is the active acceptance of long- standing localized practise or else is superimposed by executive decree. There is no evidence to substantiate either for our particular custom in question. While it is true, in general, that "the chief magistrate in a province... ruled partly by Roman law, partly by local custom" (Lake, Introduction to the N. T., 211), this is best taken not too literally. The question would rather seem to be that of the limitations set upon provincial judges in general- between their having full discretionary powers and being strictly restrained. "More often the solution lies somewhere between."35 A full discussion of custom in Roman provincial rule would not be relevant here but it would be very unlikely that a procurator had the power of release in cases involving the conditions we have in our case. It would take more than the imperfect tense to make that plausible.36 Whatever it was that was customary, viz., that may have bound the 3s E. Levy "Statute and Judge in Roman Criminal Law" (Bullettino dell'- Istituto di Diritto Romano XLV, N. S. IV [1938] 396); cf. A. H. M. Jones, The Greek City (Oxford, 1940) 121-3. 36 For this whole subject see A. Schiller "De Consuetudine in Iure Romano" (Bullettino dell' Ist. di Dir. Romano XLV, N. S. IV, 347-56) and Steinwenter, Pauly-Wissowa, s. v. Mores (with full literature). For the papyri, see Prei- sigke, Worterbuch s. v. eOto-l6s and for a short summary B. Ktibler, Geschichte d. rom. Rechts (Leipzig-Erlangen, 1925) 127 ff. In the final codifications (what value are they for Judaea?) the evidence is confusing. Thus Cod. Just. VIII 52, 2 seems to conflict with Julian (Dig. I 3, 32, 1) though the latter, properly speaking, deals with desuetudo, which is scarcely applicable here. For the provincial governors and provincial practise, see Ulpian (Dig. I 3, 33-4) and for custom in the interpretation of statute, Paul (Dig. I 3, 36) and Callistratus (Dig. I 3, 38). The evidence for the first century is meagre (largely from Egypt) and needs expert sifting - particularly for coercitio; see Mommsen, Romisch. Strafrecht (Leipzig, 1899) 35-54 and Neuman, Pauly-Wissowa, s. v. coercitio; and particularly R. Taubenschlag, "Geschichte d. Rezeption d. romisch. Privatrechts in Agypten" (Studi .... P. Bonfante I. Milano, 1930) 367-440. The best overall survey is still L. Mitteis, Reichsrecht u. Volksrecht i. d. istlichen Provinzen d. romisch. Kaiserreichs (Leipzig, 1891).
428 JOURNAL OF BIBLICAL LITERATURE procurator (specifically, here, Pilate) in some way, it could only have applied to his jurisdictional competence, not to his authority to sentence or pardon at the behest of a crowd. II There are, however, interesting paleographical and gram- matical peculiarities in the traditional text of the story. A careful study of them will, in my opinion, reveal that the original texts were different at this point and that the story itself was probably different from the one on which the texts finally settled.37 The Greek text of Matthew 37 16--17 is a case in point. It reads: etXov be rbre6 6OffliOV 7rLO7flov, XEY6blePOV Bapa33aSv. avv7yAbwov ovv avr ov l7rev avTrols 6 IIeLXaTro rtva OeXET a7roXbvrw v,ttv, rbv Bapa3o3av fi 'Irl7aov r6v XEyb6tevov XptT6rv;38 But all the ancient Mss. do not have exactly this reading. Before the first Bapao Sav is sometimes found 'IrTaovv and it sometimes appears before the second, with and without rbv (which is bracketed by Westcott-Hort). These readings are found or implied, for example, in Syr. S, 1* (O fam) 1582, 241*, 299*, Arm., Syr. Pal. lect. and certain marginalia (cf. Tischendorf, N. T., ed.VIII). Moreover, D has rov ?'YOLPEvov 37 In the sense that the original story and texts, so far as details are con- cerned, were probably in suspension, in which the conversion of Constantine and the resultant preferment of the church served as catalytic agent: thus F. Kenyon, Our Bible and the Ancient Manuscripts (London, 1939) 101; cf. Guignebert, Jesus 32: "We need only observe that our Synoptics have been in the canon longer than their text, which has suffered such deep-seated corruptions that in many places the original meaning has been lost with scant hope of its restoration." For evidence of textual variation, thus, for example, Origen, speaking of Lebes (Ae3r)s) states that he was not among the apostles "except according to a statement in one of the copies of Mark's Gospel" (Adv. Cels. I. Ixii: ed. Koetschau, 113). A long period intervened before there was any concerted attempt to quote accurately, as, for example, Hip- polytus chided No/itus for not doing (PG 10, 808b). 38 So it reads in Legg, op. cit. The distinction between ancient Ms. confla- tion - which we deplore - and modern critical editing is not always clear. Sometimes the only real difference is the use of moveable type.
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Horace Abram Rigg, Jr. Source: Journal of Biblical ... - YoYo.pl

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