Zakkai’s Formularies are what I call three legal documents in the Talmud that I am convinced were used by Yohanan b. Zakkai to prosecute gay and lesbian couples in first-century Galilee. According to this conjecture, two trials were adjudicated (judged) by Philip the Tetrarch.
Zakkai’s Formularies consist of three passages: 1) Massekhet Semahot 8.7, 2) ySanhedrin 7.5, and 3) Mishna Sanhedrin 1.2.
Formulary documents were often used when Romans and non-Romans faced off in Roman courts. Because the Roman Empire recognized the courts and legal systems of conquered peoples, formulary documents had evolved to regularize and simplify court proceedings. Although formularies were initially developed for use in civil cases, the principles of clarity and ease of use affected criminal procedure as well.
Governing an empire made the incorporation of foreigners a necessity. Non-Romans were called peregrines. The Roman senate created a special office to deal with legal cases involving peregrines, the office of the Peregrine Praetor. Thus began a tradition of how peregrines functioned judicially in a Roman jurisdiction. Throughout the empire, depending on the court chosen by the peregrines, non-Romans interacted legally according to the laws and customs of their country of origin. Thus, in Rome itself, an Egyptian court could be convened wherein Egyptians could, if they chose, engage legally according to Egyptian laws and customs. The choice of courts, even judges, was up to the participants during the era of the Republic.
During the Formulary period, the qualities of multi-lingual and multi-cultural clarity and ease-of-use spread in two ways. First, these pragmatic values spread geographically, out from Rome into the provinces. Second, these qualities spread from civil law into criminal law.
Zakkai’s Formularies translated the anti-gay legal policies of Judea into understandable, Roman language. R. Yohanan had to use Roman-style formularies for two basic reasons.
First, the Jerusalem Temple state was undoubtedly accustomed to enforcing Jewish law on non-Jews in their own jurisdiction. It was their territory, they followed their own rules, and everybody knew it. There are two scripture passages that justified the application of the law to both nationals and foreigners, Exodus 12:49 and Leviticus 24:22 .
One passage, Exodus 12:49, reads, “The same law shall apply to both the native-born and the stranger who dwells among you.” The Leviticus passage reads, “Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the Lord your God.”
But the Romans had no laws absolutely forbidding all same-sex intimacy. All male citizens, even highly placed Roman males, were allowed to have what we would call gay sex, but only in the so-called active position, and never with another Roman.
Because of this difference between Roman legal mores and Jewish, R. Yohanan b. Zakkai had to formulate a legal argument in order to convince the Rome-approved Jewish judge, Philip the Tetrarch, that it was legally valid for Jewish courts–in an official Roman jurisdiction– to order the execution of gentile gays and lesbians caught having sex with Jews. For reasons not discussed in this post, that jurisdiction was the recently elevated Roman polis Bethsaida-Julias, and the nearby town of Chorazin.
The judge rendered what today we might call a narrow decision. It is conceivable that Philip the Tetrarch could have ruled in favor of Torah, that Jewish courts were allowed to prosecute and sentence gay and lesbian gentiles in an officially Roman city. This verdict would have had disastrous repercussions in his Jewish-minority jurisdiction.
Or Philip could have decided enough was enough and ruled that the Jewish courts could not prosecute or sentence any same-sex transgressors at all, whether Jew or gentile. This verdict would have forcibly subordinated Jewish law to Roman law, which would have been anathema to…Rome. The age-old practice of the successful Roman empire was to allow local peoples and tribes to govern and adjudicate themselves according to their own laws and traditions. Subject peoples were not required (generally) to submit to Roman law.
Instead of rendering a blanket decision, instead of caving or subjugating, Philip’s decretum (decision) ruled that R. Yohanan was allowed to continue enforcing Torah against transgressing gay and lesbian Jews. He was not, however, allowed to prosecute or execute non-Jewish gays and lesbians in an official Roman territory.
The judge’s decision didn’t change anything; he only upheld what was the status quo in Roman territory. Jews governed Jews, and every other people group likewise governed itself according to its laws and traditions.
The three portions of Talmud we’re calling Zakkai’s Formularies, which argued for the execution of gay and lesbian gentiles in Roman territory, were recently gathered by Rabbi Professor Jacob Neusner. He put them in a single footnote near the center (page 93) of his 1962 book, A Life of Rabban Yohanan Ben Zakkai, Ca. 1-80 C.E., published by E.J. Brill. Neusner’s book is often available from online booksellers.
Near the center of the footnote he says the meaning of the three passages is “obvious”, but carefully refrains from using words like “homosexual”, “lesbian”, “gay”, etc.
Zakkai’s Formularies state that the destruction of animate and inanimate objects, not normally subject to Torah, are commanded to be destroyed when they are connected with sexual transgression (sexual worship at the high places, and beastiality). Using standard Talmudic reasoning (qal va homer, or lesser-to-greater) these commands are extrapolated to include gay and lesbian gentiles. Their coordinated use by Pharisee prosecutors like R. Yohanan b. Zakkai to justify the execution of gentile sexual transgressors, people who would not normally be subject to the Jewish legal system.