2. First Corinthians 6.1-6: The Text

Carefully reading through the passage, I start with marking the legal terminology in use and discerning what is clear and what requires further investigation:

This much is clear from these verses: Paul criticises a certain legal action carried out by the Corinthian community (vv. 1, 6) on eschatological grounds (vv. 2–3). The contrast between οἱ ἄδικοι and οἱ ἅγιοι is important. Paul's objection is to the identity of the judges, not to the practice itself.Footnote ¹² In verses 2–3, Paul shows, on eschatological grounds, that οἱ ἅγιοι are worthy of judging cases between members of the community.Footnote ¹³

Verse 4, a crucial verse for our subject of investigation, has been read either as an interrogative or an imperative. According to these readings, respectively, Paul is either sarcastically questioning (i.e., criticising) the Corinthians' current appointment of judges or instructing them to appoint their judges from within a particular groupFootnote ¹⁴ of people.Footnote ¹⁵

Without assuming to settle the matter myself, I would like to argue that either way, whether read as an interrogative (‘those counted as nothing in the assembly, these you appoint as judges?!’), or an imperative (‘those counted as nothing in the assembly, these you are to appoint as judges’), Paul assumes the appointment of judges/arbiters. His contention is only with the identity of these – they should, in his view, be chosen only from within the community.

When read as an interrogative, this assumption is clear – Paul responds to an existing practice of appointing judges. Read as an imperative, we must pay closer attention to Paul's language. Brent Kinman, who developed a full argument in favour of an imperative reading, notes that the location of the verb καθίζɛτɛ at the end of the sentence is odd: ‘imperatives typically occur early in a Greek clause’.Footnote ¹⁶ The reason is one of emphasis: Paul emphasises the identity of the appointed ones but assumes the action of appointment itself.Footnote ¹⁷

The important thing to notice in verse 4 is that Paul unambiguously refers to the appointment of judges by the Corinthians. The following will demonstrate that historically, the most likely legal context for this practice is private arbitration.

In verses 5–6, Paul resumes his criticism of the present practice, in a variation of his argument in verses 1–3: The members of the Corinthian ekklēsia should not be taking their cases before people outside the community,Footnote ¹⁸ the community members are more than worthy and capable.

The words in italics – πρᾶγμα, κρίνω, σοφός, διακρίνω, ἀνὰ μέσον – are legal terms which, while perfectly intelligible in the context of court trial, also appear in documents dealing with private arbitration. Considering this fact, the assumption that Paul is referring to official courts becomes a question: What legal practice is Paul criticising in this passage? In order to answer this question, we need to inquire after the precise legal procedures that would have been available in mid-first century Roman Corinth.

3. Legal Mechanisms in Roman Corinth

The Greek city of Corinth was sacked by Mummius in 146 bce. The city was rebuilt as a Roman colony by Julius Caesar in 44 bce.Footnote ¹⁹ Politically, the colony was organised on the basis of an assembly of citizen voters and annually elected magistrates – two duoviri and two aediles. One of the main duties of these magistrates was to act as chief justices.Footnote ²⁰ The inhabitants of the city would most likely be either Roman citizens or Latini coloniarii – a status inferior to that of citizens but higher than the peregrini (foreigners).Footnote ²¹

Upon founding a colony, its settlers would receive a lex coloniae which established the laws of that colony. Since we do not have the Corinthian lex coloniae, the most relevant source is Caesar's ‘Urso Charter’ (lex coloniae Iuliae Genetivae), the only extant colonial lex.Footnote ²² Unfortunately, a large section on jurisdiction is apparently missing, and the extant chapters do not deal directly with the appointment of judges.Footnote ²³ However, most scholars agree that the lex is close enough to the Flavian Municipal Laws, allowing us to draw on them, with due caution, for our understanding of the legal situation in Caesar's colonies.Footnote ²⁴ Since the Flavian lex Irnitana contains a most detailed account of the appointment of judges, I use it here as a reference in describing what is most likely to have been the situation in Corinth.Footnote ²⁵

The formulary system would have been the procedure in use in civil cases. In this procedure, the plaintiff and the defendant would appear before the magistrate for a preliminary hearing, in which they agreed on a formula – a standardised written pleading. After the preliminary hearing, the case was decided in a trial before a judge (apud iudicem).Footnote ²⁶ Of importance for our discussion is the appointment of the judge.

Chapter 84 of the Lex Irnitana makes it clear that only the duumvir or aedile in charge of a jurisdiction has the right of appointing a judge or an arbiter.Footnote ²⁷ The process of appointment is then elaborated: The plaintiff and the defendant are the ones choosing their judge (chapter 87, lines 30–48), but they are limited in their choice to a pre-existing panel of judges, selected by the magistrate (chapter 86, lines 43–17). Moreover, the appointment itself is done by the magistrate (chapter 87, lines 48–49).Footnote ²⁸ In short, while according to the formulary system the plaintiff and the defendant do choose the judge for their case, they have limited leeway in doing so, and they are not the ones formally appointing their judge.

Apart from this formal legal procedure available, inhabitants of the Roman empire, Corinth included, had other quasi-legal means for settling disputes, such as private arbitration and mediation. Leanne Bablitz describes private arbitration as a method of conflict resolution in which ‘the two parties ask a third party to hear their sides and make a decision which they will obey’.Footnote ²⁹ Józef Modrzejewski names two fundamental characteristics of private arbitration: First, an agreement between the parties on an arbiter, an agreement which included their obligation to abide by this arbiter's decision. Second, the consent of the nominated arbiter. These agreements were often recorded in writing, even in two copies.Footnote ³⁰

Mediation, another mechanism available in antiquity for those wishing to avoid a court trial, was even less formal and binding than arbitration. The mediator, like the arbiter, is invited to the task by the disputing parties, but unlike the arbiter, his decision is not binding, it is merely advisory.Footnote ³¹

We can now formulate our question thus: Is Paul criticising the members of the Corinthian community for taking each other to the official Roman courts (i.e., for litigating according to the formulary system) or for bringing their disputes before arbiters from outside the community? As mentioned above, the majority view supports the former.

4. Review of Scholarship in Support of Litigation in Courts

Most commentaries on First Corinthians take it as a given that Paul condemns the practice of going to a Roman court. Archibald Robertson and Alfred Plummer, in their 1911 commentary, give the passage the title ‘Litigation Before Heathen Courts’.Footnote ³² After translating the passage,Footnote ³³ Robertson and Plummer open their commentary with the words: ‘The subject of going to law before heathen tribunals is linked…’Footnote ³⁴ That this is in fact the subject of the passage is assumed, not argued. Charles Kingsley Barrett, Carl Holladay, Hans Conzelmann, and Joseph A. Fitzmyer follow suit.Footnote ³⁵

Gordon D. Fee goes so far as to identify the official institution Paul is referring to: ‘Man B took Man A before the civil magistrates at the bēma (“judgment seat”), which was publicly located in the heart of the marketplace.’Footnote ³⁶ Raymond F. Collins describes with greater accuracy the legal situation in Roman Corinth.Footnote ³⁷ He, too, understands Paul as condemning the practice of going to civil courts in Corinth: ‘“Before [=in the presence of] unjust persons” (epi tōn adikōn) suggests an appeal to the courts’.Footnote ³⁸

Anthony C. Thiselton quotes Fuller,Footnote ³⁹ but says nothing of the latter's suggestion that ‘the (Gentile) Christians were resorting to their pagan neighbours (not officially appointed judges) and inviting them to act as arbitrators’.Footnote ⁴⁰ He rather keeps with the traditional understanding of the passage, as his translation of 1 Cor 6.1 clearly demonstrates: ‘If one of you has a case against another, dare that one seek judgment at a court where there is questionable justice, rather than arbitration before God's people?’Footnote ⁴¹

Craig S. Keener mentions the option of arbitration, but seems to be mixing various Roman legal procedures, especially arbitration and adjudication. ‘The Corinthian Christians,’ he writes, ‘bring their own spiritual “siblings” … to secular courts for arbitration’. He does not elaborate on what arbitration in court looks like.Footnote ⁴²

To the best of my knowledge, Andreas Lindemann is the only commentator who entertains private arbitration as a real possibility.Footnote ⁴³ Lindemann's comment is significant, but is mentioned only briefly in an excursus following his main commentary on 1 Cor 6.1–11. The general impression one gets from these commentaries is that not much attention is paid to the matter, and the traditional reading remains unchallenged.

Unlike the commentaries, several studies devoted to 1 Cor 6.1–11 do pay close attention to the Corinthian practice Paul is condemning. Since the second half of the twentieth century, it has even been suggested that Paul proposes private arbitration as an alternative, but it remains the general view that the practice he condemns is adjudication in court.Footnote ⁴⁴ Lloyd A. Lewis even suggests that Paul's alternative is to establish Christian courts, parallel institutions to those of the state.Footnote ⁴⁵

Kinman entertains the option that Paul is condemning the appointment of arbiters, but rejects it as ‘unlikely for the simple fact that Paul seems to envisage a situation where believers are going to open court with one another (κρίνɛσθαι έπί των αδίκων, v.1)’.Footnote ⁴⁶ Kinman interprets κρίνɛσθαι in 1 Cor 6.1 as ‘going to open court’ (that is, secular courts)Footnote ⁴⁷ and therefore, rules out the option of arbitration. However, his assumption that κρίνω must refer to official courts only is unwarranted, nor does Kinman support it with any evidence. As we shall see, the verb κρίνω appears also in the context of arbitration.Footnote ⁴⁸

5. The Difficulties with the Traditional Reading

The view that Paul censures his addressees for taking each other to the official Roman courts remains the prevailing one. It nevertheless has some major difficulties in light of our current understanding of the function of Roman law in the eastern Greek provinces and colonies. These understandings, I argue, make it impossible to read Paul's words in the way they are so often read, as referring to colonial or provincial courts.

I have described above what was likely the procedure in use in a Roman court at Corinth. We have seen that while the parties did choose their judge, they had limited freedom within the strict procedure, administrated throughout by the magistrate. We have also seen that Paul is implying great freedom on the parties’ part. Assuming their freedom to appoint as their judge whoever they will, Paul rebukes them for choosing people from outside the ekklēsia rather than insiders. How likely is it that he so vividly sketched the dual choice between οἱ ἄδικοι and οἱ ἅγιοι, having the formulary procedure in mind? Moreover, is the verb ‘appoint’ (καθίζɛτɛ, 1 Cor 6.4) the most fitting for the formulary procedure?Footnote ⁴⁹ Would not private arbitration, with the great freedom it allowed the parties involved, make a better background for Paul's rhetoric?

While a formulary system procedure before the magistrate is the most likely official channel available at Corinth, it was not necessarily the only one. An objection to my preference of private arbitration can be made along these lines: It is true that the formulary system option is problematised by a close reading of Paul's language, but could he be referring to a different procedure? Indeed, the section on jurisdiction in the lex Irnitana opens with a definition of the types of cases that are under the magistrate's jurisdiction (chapter 84). Other cases would be brought before the provincial governorFootnote ⁵⁰ or even before the emperor in Rome.Footnote ⁵¹

However, these options are even less likely in light of Paul's language, since the procedure in these avenues would most likely have been the cognitio procedure. Alongside the formulary procedure, an alternative procedure, the cognitio, developed during Augustus’ reign, which gradually became the common practice, especially in the provinces.Footnote ⁵² In this procedure, the magistrate was in charge of the entire trial. After receiving a written statement of claim from the plaintiff, he summoned the parties, conducted the investigation, and made the decision, all by himself.Footnote ⁵³ In other words, Paul's reference to the appointment of judges is even less likely to refer to the cognitio procedure than it is to the formulary system.Footnote ⁵⁴

One other element of the historical situation in the provinces needs to be addressed, namely, what scholars call ‘legal pluralism’.Footnote ⁵⁵ Its importance in the provinces is increasingly recognised by scholars.Footnote ⁵⁶ Rather than a single, top-down, purely Roman legal system, the Romans allowed, for various reasons, the co-existence of multiple legal systems and courts, from which litigants could choose the avenue that would best fit their interests.Footnote ⁵⁷

Despite its status as a Roman colony, we cannot rule out with certainty the possibility that the courts in Corinth operated according to a local legal system.Footnote ⁵⁸ This allegedly poses a challenge to my previous claim that the procedure in Corinth would be exclusively the Roman formulary system or cognitio. Could it not have been only one among many available options? One of these options may have included the appointing of a judge by the disputing parties, in which case the conventional reading of the Pauline passage would be reinforced. In order to answer this query, we need to pay close attention to the specific character of legal pluralism in the eastern provinces.

Caroline Humfress, one of the prominent advocators of the ‘ground-up legal pluralism’ approach, nevertheless views it as operating under the imperial superstructure, with Roman law serving and being recognised as ‘the official, formal system of the central imperial power’.Footnote ⁵⁹ In an article devoted to legal pluralism in the eastern provinces, she sets out to show from papyrological evidence how ‘“local laws” were transformed into “provincial Roman customs” in the field of private law’.Footnote ⁶⁰ In other words, legal pluralism in the eastern provinces meant mainly that local legal content was acknowledged and put to use in Roman legal mechanisms. These mechanisms were, as shown above, mainly within the scope of the cognitio procedure, implemented by the governor and his subordinate magistrates.Footnote ⁶¹

The famous second century ce petition of Dionysia is a case in point. Dionysia appeals to the Roman magistrate after her father attempted to force her to divorce, on grounds of Egyptian law. The papyrus drew scholars’ attention because it is clear from it that the Roman authorities acknowledged Egyptian law as legally valid.Footnote ⁶² As Clifford Ando rightly emphasises: ‘It is crucial to observe that the Roman magistrate who ordered the delay did not dispute Chaeremon's claim that Egyptian law should apply’.Footnote ⁶³ Without diminishing the importance of this observation, I would add that it is equally crucial to observe that it is the Roman magistrate who has the final say. All petitions are addressed to him. He is the one acknowledging Egyptian law. Legal pluralism in the eastern provinces was allowed by the Roman authorities, and its application was through the official Roman legal channels.

Another aspect to be considered under the umbrella of ‘legal pluralism’ is the possibility that Paul refers to Jewish courts, as several commentators on 1 Cor 6.1–11 suggested.Footnote ⁶⁴ However, from the scarce pieces of evidence we have on Jewish judicial autonomy in the Roman period,Footnote ⁶⁵ it seems unlikely that a Jewish court operated in mid-first century Roman Corinth. We have evidence of Jewish judicial autonomy in Judea, Alexandria and Sardis only.Footnote ⁶⁶ As both Alan C. Mitchell and Yair Furstenberg emphasise, we can hardly learn from one place about the legal situation elsewhere.Footnote ⁶⁷ Moreover, Furstenberg writes concerning Sardis that ‘the Jews’ appeal for self-jurisdiction was based on the familiar Roman practice of restitution of autonomy (laws and liberty) to Greek cities …’.Footnote ⁶⁸ Such autonomy was not given in Roman colonies, where Roman ius civile was applied.Footnote ⁶⁹ It is therefore unlikely that autonomous Jewish courts existed in Corinth.

Even in the unlikely case that the Jews did have their own courts in Corinth, there is no indication that the Jewish judges were chosen by the plaintiff and the defendant as is implied in 1 Cor 6.1–6. The evidence we have on appointment of judges in Jewish communities of the time, in fact, suggests otherwise. Josephus mentions seven judges in each Judean city, which seems to be a fixed position rather that ad hoc appointment.Footnote ⁷⁰ According to Strabo's fragment quoted by Josephus, in Alexandria the ἐθνάρχης was appointed (καθίσταται) in order to adjudicate suits (διαιτᾷ κρίσɛις),Footnote ⁷¹ which also does not point to ad hoc selection of judges.

In Qumran, we read of ten judges, ‘chosen from the congregation according to the time’ (ברורים מן העדה לפי העת, CDC 14:10–14). Lawrence H. Schiffman interprets ‘according to the time’ to mean that the judges were chosen ad hoc. But, as he points out, the text in other places indicates that ‘the judges were regular appointees who were available whenever cases demanded their attention’.Footnote ⁷² In any case, the text makes it clear that the judges are chosen from within the community, which is different from the situation that Paul describes of the appointment of judges from outside the community. The Hebrew root ב.ר.ר, to select, appears also in m.Sanh 3, to describe a process of selection of judges by the disputed parties. This, however, is the only place in rabbinic literature describing such a process.Footnote ⁷³ However it may be understood, it is nigh impossible that this rabbinic principle was in use in first-century Roman Corinth.Footnote ⁷⁴

To sum up, the duoviri and aediles in Corinth applied Roman law in their judgments, and the procedure by which trials were most likely conducted was the Roman formulary system. Even in the less likely scenario – that the duoviri and aediles in Corinth applied local law(s) in their judgments, they had the ultimate authority, and the procedure by which trials were conducted was either the formulary system or cognitio, regardless of the specific laws and customs applied to individual cases. Thus, despite the legal pluralism which characterises jurisdiction in the provinces, and occasional Jewish judicial autonomy, when Paul writes about appointing a judge, it is unlikely that he has the local official courts in mind.

6. Private Arbitration: An Alternative Reading

Paul in 1 Cor 6.1–6 is objecting to the identity of the judge chosen by disputing members of the community. The nature of this objection assumes a practice of dispute settlement in which the parties have the freedom to choose and appoint the person who will make the ruling. After showing that official Roman courts in Corinth hardly fit this category, I suggest private arbitration as an alternative.

As mentioned above, Fuller made this suggestion in his exegesis of 1 Cor 6.4. Reading καθίζɛτɛ, literally meaning ‘make to sit’, as referring to appointment, Fuller realises that ‘“appoint as judge” … would be too formal. Christians are hardly nominating pagans for a judicial office which they did not have before’. He instead suggests that ‘the (Gentile) Christians were resorting to their pagan neighbours (not officially appointed judges) and inviting them to act as arbitrators’.Footnote ⁷⁵ Fuller in his paper neither elaborates on private arbitration nor supports his suggestion by referring to Roman law. In what follows, I wish to present supporting evidence for the private arbitration hypothesis, which, as noted, has generally been ignored in scholarship following Fuller.

As stated in the analysis of 1 Cor 6.1–6 above, it follows from my reading that Paul's objection is not to the practice of settling disputes but concerns only the identity of the arbiter. This reading assumes that the members of the Pauline ekklēsia in Corinth preferred people from outside the community to act as arbiters. This assumption is plausible, as it conforms to a prevailing view that valued the neutrality and objectivity of a judge.

One practice bearing witness to this view is the institution of foreign judges (τὰ ξɛνικὰ δικαστήρια). As Lina Girdvainyte defines it: ‘Commissions of one or more judges from one polis would be invited by another to decide in local cases according to the laws of the inviting city’.Footnote ⁷⁶ In this practice, a desire to have an objective judge led to a preference of a judge that is unacquainted not only with the disputing parties, but with the community at large.Footnote ⁷⁷

Philo of Alexandria, Paul's older contemporary, gives expression to this view in his discussion of the good judge in the fourth book of his De specialibus legibus. The good judge must make every effort to ignore and forget the parties he is judging, even if they are his acquaintances.Footnote ⁷⁸

These two examples sketch a general ideal of just judgment prevailing in Paul's time: it is necessary for the judge to be impartial, preferably unknown to the disputing parties. This notion indirectly supports the assumption that the Corinthian would prefer someone from outside the community to act as arbiter. What else in 1 Cor 6.1–6 may point to private arbitration?

Literary sources and Egyptian papyri describing the practice of private arbitration and mediation show that Paul's language in the passage fits the jargon of private arbitration very well. They contain many of the legal terms that appear in 1 Cor 6.1–6, thus supporting the argument that Paul has arbitration/mediation in mind.Footnote ⁷⁹

In 1 Cor 6.5, Paul asks the Corinthians whether there is no wise (σοφός) man among them able to act as arbiter between them. In Plutarch's Quaestionum convivialum, Timon, Plutarch's brother, likening the arrangement of the seats of guests at dinner to private arbitration, says that he is not ‘wiser (σοφώτɛρος) than Bias that he should become a judge (γίνɛσθαι κριτής) over so many comrades and so many relatives too when Bias had refused to arbitrate (ἀπɛιπαμένου δίαιταν) between two of his friends’.Footnote ⁸⁰ As Mitchell notes: ‘Wisdom is likely to have been a quality one looked for in someone who was to mediate a dispute.’Footnote ⁸¹

Another term is πρᾶγμα (1 Cor 6.1). In a legal context, it carries the meaning of a legal case or a lawsuit.Footnote ⁸² It does not necessarily refer to a trial in court, though, and can also be used for cases resolved through arbitration, as is evident from a second century ce private letter from Philadelphia, Egypt. The writer informs his brother that their case was referred to arbitration (ɛἰς μɛσιτɛίαν)Footnote ⁸³ by the centurion (ἑκατόνταρχος), and that he must appear on a certain appointed time. The affair is termed τὸ πρᾶγμα ὅλον.Footnote ⁸⁴ Thus, by speaking of the Corinthians ‘having lawsuits’ (πρᾶγμα ἔχων), Paul does not necessarily mean going to the official courts.

In this same papyrus, the writer informs the addressee that their case ‘was referred to arbitration (μɛσιτɛίαν) by the centurion to be decided (κριθῆναι)’. Paul uses the verb κρίνω five times in 1 Cor 6.1–6, in the active and middle/passive voices.Footnote ⁸⁵ While in a legal context κρίνω means generally ‘to judge’, our papyrus indicates that the verb can also mean an arbiter's decision.

The verb διακρίνω, appearing in the infinitive form in 1 Cor 6.5, is, according to Modrzejewski, another verb denoting the passing of sentence by the arbiter.Footnote ⁸⁶ It appears in an early papyrus dated to the third century bce, from Elephantine in Ptolemaic Egypt.Footnote ⁸⁷ The fragment is an obligation made by one of the parties to abide by the decision of the arbiters, one of the two characterisations of private arbitration mentioned above: ‘I shall abide (ἐμμɛνῶ) in [the decision] of Onnofris and Imotes, when (ἐὰν) they shall judge (διακρίνωσιν) …’.

Finally, the phrase ἀνὰ μέσον τοῦ ἀδɛλφοῦ αὐτοῦ (1 Cor 6.5) is worth dwelling on. It appears in the Septuagint 12 times with κρίνωFootnote ⁸⁸ and twice with διακρίνω,Footnote ⁸⁹ translating the Hebrew לשפוט בין לבין. Often, it is uttered by one of the disputing parties, inviting or invoking a third party to act as judge.Footnote ⁹⁰ Assuming that Paul was not ignorant of these uses,Footnote ⁹¹ and in view of the practices of Roman law in first-century Corinth, described above, this phrase supports the reading that Paul is referring to private arbitration.

Interestingly, the phrase is very close to what appears to become a formula for mediators.Footnote ⁹² Four different papyri dealing with mediation, dating from the third to the fifth centuries ce, use variants of μέσος/μɛταξὺ (+ gen.) γɛνόμɛνος to describe the mediator(s).Footnote ⁹³ Table 1 shows these variants.

Table 1. Variants of μέσος/μɛταξὺ

While not identical to this late formula, Paul's phrasing is nevertheless strikingly similar. Together with the other evidence pointing to the context of arbitration/mediation, I believe it brings Paul's legal language ever closer to that of arbitration/mediation.

To conclude this section, we have encountered much of Paul's legal language in the context of private arbitration and mediation: σοφός, πρᾶγμα, κρίνω, διακρίνω, and the resemblance of the phrase ἀνὰ μέσον τοῦ ἀδɛλφοῦ αὐτοῦ to the later mediation formula. This terminological evidence suffices to support the argument that Paul's legal terminology in 1 Cor 6.1–6 makes sense in the context of private arbitration. While most of it can also make sense in the context of adjudication in court, the notion of the ability to freely appoint judges serves as the tipping point, and makes private arbitration the more probable conclusion.