A Common Justice
The Legal Allegiances of Christians and Jews Under Early Islam
Uriel I. Simonsohn
2011 | 320 pages | Cloth $79.95
Religion | History | Law
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Table of Contents
Note on Transliteration
PART I. LEGAL PLURALISM IN LATE ANTIQUITY AND CLASSICAL ISLAM: SURVEY AND ANALYSIS
Chapter 1. A Late Antique Legacy of Legal Pluralism
Chapter 2. Islam's Judicial Bazaar
PART II. THE JUDICIAL CHOICES OF CHRISTIANS AND JEWS IN THE EARLY ISLAMIC PERIOD: A COMPARATIVE ANALYSIS
Chapter 3. Eastern Christian Judicial Authorities in the Early Islamic Period
Chapter 4. Rabbanite Judicial Authorities in the Late Geonic Period
Chapter 5. Christian Recourse to Nonecclesiastical Judicial Institutions
Chapter 6. Jewish Recourse to Islamic Courts
List of Abbreviations
Excerpt [uncorrected, not for citation]
The fragmentary remains of Christian and Jewish legal documents composed in the Eastern Mediterranean in the first five hundred years of Islamic rule reveal that Christian and Jewish religious elites were preoccupied with the fact that their coreligionists were taking legal cases outside the community for litigation in what appear to have been primarily Islamic courts. This book examines the legislative response of Christian and Jewish religious elites to the problem posed by the appeal of their coreligionists to extraconfessional judicial institutions. Focusing on the late seventh through the early eleventh century in the region between Mesopotamia in the east and North Africa in the west, the study explores the multiplicity of judicial institutions that coexisted under early Islamic rule as part of the complex array of social obligations that bound individuals across confessional boundaries. Contrary to the notion of a non-Muslim autonomous existence in a rigid social setting, strictly demarcated along confessional lines, a comparative study of Christian and Jewish legal behavior under Islamic rule exposes a considerable degree of fluidity across communal boundaries. Such transcendence of religious affiliation threatened to undermine the position of traditional religious elites. In response, these elites acted vigorously to reinforce communal boundaries, censuring recourse to external judicial authorities and threatening transgressors with excommunication.
Maintaining judicial power as a means of sustaining social power and religious boundaries was of great importance for Christian and Jewish elites even prior to Islamic rule. The sages of the Mishnah (the tannaim) as well as the early church fathers had been preoccupied with similar, if not exactly the same, concerns. In early rabbinic Judaism, the discussion dealing with appeal to Gentile courts ('arkha'ot shel goyim) reflects an ambiguous approach. Despite their general opposition, the early rabbis permitted recourse to non-Jewish courts for purposes of issuing evidentiary documents, such as deeds of sale and loan, and for coercing recalcitrant litigants to obey the decisions of Jewish courts. Yet while the early Christian position appears to have been much firmer in its objection to the use of non ecclesiastical courts, its exact meaning as to the identity of these courts remains unclear. Early Christian sources use a variety of expressions when referring to non ecclesiastical courts and judges, such as "secular," "outsiders," and "nonbelievers." In general, the early church fathers argued, litigation should be avoided; yet if inevitable, it should be pursued only before the holy ones, the appointed bishops.
It is therefore evident that the rise of Islam and its subsequent rule did not trigger Christian and Jewish judicial preoccupations. The reliance of non-Muslim confessional leaders on legal principles formulated in the pre-Islamic period and their resort to some of the rhetorical motifs that had already been employed by their predecessors attest to the endurance of these concerns. Nonetheless, the frequency of references made by non-Muslim leaders to the problem of recourse to extra-confessional judicial institutions as well as the high tones in which they often expressed their objections in the period following the Islamic conquest suggests not merely a continuity but also an intensification in their concerns.
The East Syrian and West Syrian Churches under Early Islamic Rule
Two Eastern Christian churches are at the center of this study: the East Syrian (so-called Nestorian) and West Syrian (Jacobite or Syrian Orthodox) Churches. The history of these churches and their parallel formation should be traced back to the Christological disagreements of the fifth century. The theological controversies on the subject of the human and divine natures of Christ dominated the ecumenical councils of Ephesus (A.D. 431) and Chalcedon (A.D. 451). It was in these controversies that the formation of the East Syrian and West Syrian Churches was conceived. The council of Ephesus saw the climax of the controversy between the Dyophysites, who adhered to the doctrine of two natures in Christ; and the Miaphysites, those in the Roman Empire who opposed this interpretation and argued for a single nature.
Twenty years later, at Chalcedon, a failed attempt to reconcile Miaphysite factions resulted in a second blow to Roman aspirations for ecclesiastical unity. By now, the adherents of a Miaphysite Christology had begun to adopt sectarian features. These developments eventually gave rise to the formation of local Miaphysite churches, a process that reached its climax in the sixth century, following the policies of hostile emperors—most notably, those of Justinian (r. 527-65). It is within this history of doctrinal divisions that we should locate the origins of the two churches that constitute the Christian component of the present study: the East Syrian Church of Seleucia-Ctesiphon and the West Syrian Church of Antioch.
For Near Eastern Christians, perhaps the most remarkable effect of the Arab conquest was the withdrawal of their past sovereigns. By the end of the first half of the seventh century, the subjects of the Sasanian and Eastern Roman Empires were under Arab rule. Yet despite their unique character and particular development, these churches had certain features in common. The image is one of a general continuity in communal structures, cultural affiliations, doctrinal divisions, and administrative patterns. Left to their own devices (or given the freedom to regain their authority), ecclesiastical leaders under Islam continued to assert their control over their clergy, churches, monasteries, and schools. These institutions appear to have remained, for the most part, intact and unaffected by the turbulence of warfare in the first centuries of Islamic rule. Thus patriarchs were able to retain their positions; but instead of paying tribute to the Roman or Persian governments, they paid it to an Islamic caliphate. At the top of the local ecclesiastical organization, the bishop retained his dual role as spiritual guide and administrator.
Initially forming a significant part, if not the majority, of the population, the Syriac-speaking Christians of Mesopotamia and the Fertile Crescent were descendants of native as well as Greek cultural traditions. Since they sat at a cultural crossroads and experienced frequent changes of political authority, the cultural diversity of these people seems hardly surprising. Cultural vehicles such as poetry, chronicles, hagiography, and architecture were put to work as a means of transmitting a "Christian message." This message was often conveyed through the intellectual endeavors of monks in the outskirts of lay settlements. Thus the merging of pious and cultural enterprises served to enhance loyalty to the church and to local identities.
Near Eastern Rabbanite Jews
The second confessional group with which this study is concerned is the Near Eastern Rabbanite Jews of the later geonic period (tenth and eleventh centuries). In principle and quite often in practice, Rabbanite Jews were affiliated with the geonic centers of Babylonia and Palestine and their extensions over the vast territory between Iraq and Ifrīqiya (modern-day Tunisia). It is in this context that we find the activity of the geonic academies, as these institutions of learning were the product of an ongoing institutionalization of the rabbinic networks that had created the Mishnah and the Talmud. Thanks to their scholarly reputation and hereditary office, the heads of the geonic academies of Babylonia and Palestine were perceived by a significant part of the Jewish world as spiritual leaders, entrusted with the duty (and prerogative) of guiding groups and individuals in questions of law and communal life.
The history of the geonic period is also a history of Jewish factionalism in which competing allegiances promoted the fragmentation of local communities into separate, often rival, congregations. At the same time, however, it should be observed that contention and factionalism were not necessarily signs of a declining Jewish world but rather suggest a thriving one, reflected by the fierceness of the struggle for authority. Indeed, hundreds of thousands of documents from the Cairo Geniza attest to the richness and vitality of Near Eastern Jewish life. It was a period in Jewish history that gave rise to a Judaeo-Arabic culture, a melding of ancient Jewish traditions with the nascent Islamic civilization. It is here that we find Jewish intellectuals assuming an active role in a general atmosphere of intellectual and cultural prosperity. It is here, too, that we notice a remarkable resistance on the part of many who fought not only for the preservation but also for the ongoing development of Jewish jurisprudence.
There is much to be said for considering the history of Christian and Jewish groups under Islamic rule collectively. Drawing on common theological and civil legacies, the Christian and Jewish communities under Islamic rule resembled each other in many ways. They shared an eventful pre-Islamic past, in which the parting of the ways most likely came at a much later stage than contemporary narratives would have us believe. While Christian and Jewish elites were in the process of defining their respective orthodoxies, the two religious groups were about to be joined by a third monotheistic religion. As possessors of the revealed Scripture (al-kitāb) and adherents to a monotheistic religion, Christians and Jews were granted the protection (dhimma) of Islam within Islamic territory (dār al-Islām).
Many studies dealing with the social history of Christians and Jews under Islam presuppose that the dhimmī system entailed the creation of a social setting in which Christians and Jews were members of autonomous communities. This assumption lay at the basis of the modern scholarly view that correlated the pre-Islamic evolution of social communities centered on a confessional identity and an Islamic social outlook of segregation of Muslims from their non-Muslim environment. Here communal agents on both sides of confessional boundaries were entrusted with the preservation of communal life through an ongoing maintenance of its autonomous institutions. As such, communal autonomy has been seen as a central mechanism for the creation of a rigid demarcation between dhimmīs and Islamic society at large.
For Muslims, the point of dhimmī autonomy was "to demonstrate who belonged … to the dominant group and who did not"; for Christians and Jews, it served the ultimate purpose of confessional survival. Thus the so-called Pact of ?Umar, a regulator of dhimmī status, was often invoked by Muslims and their dhimmī subjects, attesting to their mutual interest in sustaining past agreements. In practical terms, dhimmī communal autonomy meant for Christians and Jews the right to manage their internal communal affairs independently of the Islamic state, as if they were running "a state not only within a state, but beyond the state." This autonomous administration has been seen as running from the communal head down to a network of communal officers who collectively administered the community's judiciary, welfare system, and education free from any intrusion on the part of the Muslim authorities.
Communal institutions and their autonomous functioning formed the basis of dhimmī autonomy, while its centerpiece was the community's legal autonomy. So crucial was the maintenance of communal judicial institutions that modern scholars have argued that the realization of legal autonomy was a prerequisite for communal autonomy; indeed, this single claim has been adopted by otherwise divergent modern scholars who have argued, separately, for the existence, non existence, or partial existence of communal autonomy. The overriding principles that guided the majority of Muslim jurists dictated that dhimmīs were to conserve the usage of their laws, appoint their own judges, and have the freedom of recourse to their own tribunals.
At the same time, however, Muslim jurists were well aware of the Qur?anic position that allows and even suggests that dhimmīs be judged in Islamic courts: "[They are fond of] listening to falsehood, of devouring anything forbidden. If they do come to thee, either judge between them, or decline to interfere. . . . If thou judgest, judge in equity between them (Q. 5:42)"; "And this [he commands]: 'Judge between them by what Allah hath revealed.' And follow not their vain desires, but beware of them lest they beguile thee from any of that [teaching] which Allah hath sent down to thee" (Q. 5:49).
Whereas according to some Muslim authorities, these verses designate the Islamic court as a locus of optional arbitration between dhimmīs (suggested in Q. 5:42), others argue for the primacy of Islamic jurisdiction over dhimmī legal affairs (suggested in Q. 5:49). Such questions can be seen as the basis of further disagreements among Muslim jurists on the issue of dhimmī legal autonomy. Yet in general, the majority of Muslim jurists gave permission to Christians and Jews to administer their laws independently and to pass judgment accordingly in their own courts, conditioned on the consent of both non-Muslim litigators. If one of the parties preferred to litigate in an Islamic court, the other party had no choice but to comply.
Revisiting the Paradigm of Autonomy
In his analysis of the conceptual framework of Jewish existence under medieval Islam, Haim H. Ben-Sasson stated: "Throughout the Middle Ages the Jews demanded—both from the dominant culture as well as from themselves—national and religious autonomy and cultural and social responsibility. In doing so they presented a challenge both to themselves and to the dominant society. The internal challenge gave rise to a creative spiritual force capable of offering vigilant resistance and of forging new life patterns for the community and the individual alike."
Ben-Sasson's remark reflects a common perception in modern studies dealing not only, as he does, with Near Eastern Jewry but also with Christian communities. These studies tend to view dhimmīs as well entrenched within the boundaries of national, ethnic, and religious units, segregated from their external environment. Thus, the theory goes, the survival of these communities into modern times depended on their ability to maintain firm communal discipline rooted in a confessional consciousness. Accordingly, Near Eastern Christian and Jewish communities are seen as social units that submitted to a monolithic and central authority—the patriarchs or the geonim, respectively. Moreover, on the basis of their religious convictions, members of these units are depicted as having owed allegiance predominantly to their confessional institutions, thereby ascribing only secondary importance to other forms of social organization outside their community. In sum, the Christians and Jews of medieval Islam are seen as members of corporate social entities whose boundaries are determined solely by the parameter of religion.
Plausible as the paradigm of communal autonomy may seem, it is also misleading, since the assumptions underlying the notion of autonomy fail to account for some principal characteristics of pre modern Near Eastern societies. The use of such expressions as "nation" and "national unity" to describe Christian and Jewish communities ascribes to dhiminī groups features similar to those found in medieval Christendom or in modern societies. Yet in practice, the principle of autonomous units based on confessional affiliation was best realized in the minds of those who sought to implement them—namely, the religious elites—and not necessarily in the lives of their communities. A crucial mechanism for creating confessional boundaries was the promulgation of legal stipulations. These provided practical guidance to believers in their daily encounters with adherents of other religions and also employed the sort of rhetoric designed to instill in the minds of believers a notion of uncompromising membership in autonomous confessional units. Quite often, this formality has been taken for reality. In practice, however, the extant evidence suggests a social setting characterized by multiple sources of authority, generated by multiple social affiliations—a setting, obviously, that did not well serve the ideology of those who were preoccupied with confessional uniformity and unity.
The notion of autonomy, let alone a rigid one, is undermined by the arguments of the very scholars who have championed it, since they themselves draw our attention to the fact that dhimmī regulations were frequently affirmed in theory but only sporadically enforced. Furthermore, as historians and social scientists have come to agree that religious convictions are not sufficient to explain social commitment, it seems that the commitment of non-Muslims to an autonomous community should be viewed with some skepticism. Rather than attempt to locate the hinge of social relationships in the bonds between individuals and their confessional authorities, an understanding of the social setting under discussion should begin with an acknowledgment of a multiplicity of constantly changing sources of social power. Of confessional leaders, it seems best to speak as people who shared their authority, at times unwillingly, with other figures (coreligionists and other), such as prominent merchants, landowners, scholars, holy men, courtiers.
Moreover, while dhimmī confessional leaders sought to fortify communal segregation through rhetorical and legislative means, they also frequently called upon the intervention of the Muslim authorities at moments of convenience. This plurality of authorities was dictated by a rich matrix of social ties that transcended confessional lines, thereby undermining the very notion of autonomy. It comprised a set of social allegiances, often based on a patron-client relationship, through which both parties were able to offer each other some form of social benefit.
We are dealing here with a society in which such individuals as 'Abdallāh ibn al-Muqaffa' (d. ca. 756) and Ya'aqūb ibn Killis (d. 991) were able to exploit their mixed affiliation fully, as they were born in one cultural environment, settled in another, converted to Islam, and placed their professional skills at the disposal of their Muslim sovereigns. Contrary to the notion of discrete units, the image that emerges from the social landscape of the medieval Near East is one of constantly evolving partnerships, friendships, collegial ties, and even familial bonds among members of different religions. In this respect, the evidence found in the Cairo Geniza is of utmost importance, as it clearly attests not only to the nature and character of social contracts but also to the atmosphere of freedom that had made them possible. The use of the term "contracts" is not accidental in this context: it derives from the individualist and reciprocal character of the social bonds forged among members of these societies, from an "image of bargaining," as Lawrence Rosen described it, in which "each attachment, each personal quality, each basis for affiliation became a resource to be utilized in fabricating a set of allies and dependents."
Thus, terms such as ?aqq (right, duty, claim) in present-day Moroccan society and ni'ma (benefit) in that of tenth-century Būyid Iraq were used to denote the reciprocal character of the personal contract drawn up by two individuals. Rather than seeking the corporate, we should be in search of the individual and personal. It was through the latter that individuals became committed to a variety of other individuals in a "series of interpersonal ties, freely negotiated." Under these circumstances, it is misleading to attribute to confessional communities a monopoly over people's commitments and loyalties.
However salient its role may have been in the process of constructing social obligations, personalism cannot alone explain the murkiness of confessional boundaries. Late in the seventh century, the East Syrian monk John bar Penkāyeĝ commented in his apocalyptic treatise that "there was no distinction between pagan and Christian, [and] the believer was not known from a Jew." Though it is offered in the context of an apocalyptic composition decrying the lack of confessional discipline, John's comment may also suggest the continuity of a shared Near Eastern culture, in which it was often impossible for members of one religious affiliation to be distinguished, in their mundane practices, from another.
Whether Christian, Jewish, or Muslim, members of discrete confessional affiliations appear to have shared a cultural orientation that may only have intensified as Arabic became the region's lingua franca. It is in this context of social embeddedness that those who sought to enforce confessional divisions—namely, the religious elites—had to come up with a discourse of resistance. As such, this discourse was intended to evoke in its audience emotions of fear and rage toward the other, the outsider—and also to advance, through a "symbolic separatism," the notion of a religious community and its place in the world.
Thus, from the outset of the Arab conquest, we find this discourse of resistance in a rich variety of literary genres, including hymns, liturgy, sermons, chronicles, hagiographies, martyrologies, and apocalyptic narratives. These works reflect the efforts of Christian and Jewish religious leaders alike to convey a message of opposition toward inter confessional contacts by depicting the Arabs as a divine punishment: immoral, transient, extractors of burdensome tribute, and ruthless persecutors. Unsurprisingly, this message corresponded to the very ideal of religious autonomy that was to provide religious elites with the legal and practical means to enforce their separatist aspirations. It was meant to provide a solution to the challenge of maintaining social-confessional cohesiveness in the context of Islamic permissiveness. It is against this background that we ought to view and interpret, on the one hand, the insistence of dhimmī leaders on judicial exclusiveness and, on the other, the incompleteness of its implementation.
The principle of legal autonomy, propounded by Muslims jurists and cherished by non-Muslim leaders, has often been presented in modern scholarship as a sign of dhimmī autonomy. Accordingly, the recurring violation of this principle, as reflected in the frequent non-Muslim recourse to Islamic courts, has been interpreted as a breakdown of the system—hence the harsh response of non-Muslim leaders. This interpretation, however, does not account for a broader social context in which, despite the formal segregation, members of one confession were able to interact with those of another without renouncing their religious convictions.
It is therefore of little surprise that recent calls for revisions in modern interpretations insist upon a greater emphasis on local context instead of the stringing together of isolated episodes into general phenomena. In overemphasizing a "homogenous 'we' ranged against a homogenous 'them' we are risking importing a foreign social setting into our study." Rather than assuming a social setting that fully embraced formal prescriptions, we should consider a setting that witnessed constant tension between the formal and informal. Instead of dividing the social landscape into wedges of sovereigns and minorities, jurisdiction and autonomy, we should consider one that was made of overlapping realms of authority. This is not to say that confessional communities had no applicable jurisdiction or that confessional institutions did not assume a practical role; far from it. But their existence and function should be viewed alongside those of other circles of social affiliation. It is in this context that we should consider the ongoing preoccupation of confessional elites with the question of their judicial jurisdictions. Here, in line with their arguments in favor of confessional autonomy, religious elites sought to draw their coreligionists into the fold of their judiciary, all the while highly alert to the fact that members of their communities had recourse to a variety of judicial authorities outside the boundaries of the autonomy that they aspired to realize.
The Social Role of Law and Judicial Institutions
In The Concept of Law, H. L. A. Hart argues a position that may seem somewhat inconceivable: "It is possible to imagine a society without a legislator, courts or officials of any kind . . . where the only means of social control is that general attitude of the group toward its own standard modes of behavior in terms of what can be characterized as rules of obligation." Yet Hart also acknowledges that "only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime." The Christian and Jewish communities at the focus of this study did not possess such features, though at times we do find groups within these communities that were bound by highly intimate relations, not to mention religious convictions. Still, irrespective of the size and nature of local relationships, Christian and Jewish communities were often, if not always, spiritually led by men who believed that their membership in a religion and their ethnicity transcended local affiliations. In contrast to those small communities that Hart sees as capable of maintaining a social order without a legal apparatus, those under discussion were highly dependent on one: "In any other conditions in which this simple form of social control is absent inevitable symptoms of social uncertainty and incapability of adaptation to changing circumstances will appear."
Legal scholars and social historians acknowledge the role of law in general and its judicial application in particular as a means of social control and the use of that control for the purpose of social boundary maintenance, particularly by means of "monopoliz[ing] norms." Here, the language of the law has importance in and of itself, as it helps empower the prescriptive aspect of the law. For example, we often find jurists not only laying down explicit rules against intermarriage, but also embellishing these rules with a vocabulary meant to underscore the negative aspects of such an act and the negative attributes of those outside the group's boundaries.
We should also note the ceremonial setting in which the law is implemented. Referring to the performative quality of civic trials in the Roman Empire, Brent Shaw spoke about judicial processes as venues that constituted "a social field of rule-driven behavior." Whether taking place before an imperial magistrate, in the context of a majestic tribunal, or under a tree outside a remote village, a judicial procedure implies certain ceremonial conventions. The mere appearance before the judicial figure is in itself an expression of submission on the part of the litigants. In addition, a predetermined space, in which regular conventions of speech and principles of etiquette are expected to prevail, attests to the ceremonial quality of the judicial process.
Legal Pluralism: A Conceptual Paradigm
It is in light of the role of law in society and in the context of the multiple laws that governed the lives of Near Eastern societies that this study adopts legal pluralism as a conceptual framework. Social scientists, in their discussions of legal pluralism, have argued that a multiplicity of legal orders exists within every social setting. When it was revived, over two decades ago, the concept of "legal pluralism" was meant to undermine that of "legal centralism"—the notion that law is exclusively prescribed by the state, administered through its formal apparatus, and is equally shared by everyone. This was countered with the idea that the state is not the sole patron of legal systems; it "does not have a monopoly on law." Instead, rather than one law, legal pluralists have advocated for the prevalence of a multiplicity of laws.
This multiplicity is seen in the amalgamation of coinciding legal orders such as the laws of the village, municipality, state, district, and region, as well as national and transnational orders. In addition, many societies follow other forms of legal systems, such as customary, indigenous, and religious law, or laws related to ethnic and cultural affiliations. Here it is important to note that the loci of such legal orders should not be sought out only within the courts. In addition to a variety of formal types of tribunals, whether state-sanctioned or not, the redress of disputes and the validation of legal actions often take place in informal venues, through the intervention of informal institutions and figures.
Legal pluralism, then, is "the condition in which a population observes more than one body of law." At the basis of this notion lies the recognition that "within any given field, law of various provenances may be operative." The multiplicity of laws allows a multiplicity of legal orders, which, in turn, facilitate a multiplicity of "semiautonomous social fields." In other words, the concept of legal pluralism highlights the plurality of legal orders, as well as the plurality of social orders that the legal orders aim to sustain. Quite often, this multiplicity entails the overlapping jurisdiction of legal orders and, hence, of their legal institutions, particularly when social orders are not entirely self-regulated. The same legal order may serve more than one social order. Under such circumstances, we find that the legal institutions of discrete legal orders "support, complement, ignore or frustrate one another, so that the 'law'. . . is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like."
But legal pluralism can exist within a single legal order. Thus a distinction needs to be drawn between the existence of multiple legal institutions within a single legal order, and multiple legal institutions sanctioned by multiple legal orders—or, in other words, between "system-internal pluralism and pluralism of systems." This distinction was introduced by John Griffiths in terms of "weak" and "strong" forms of legal pluralism, with the former pertaining to different rules and institutions prescribed by a single order and the latter to those prescribed by separate orders. Yet both forms present instances in which "a single population . . . acts within the framework of more than one body of law."
The Implications of Legal Pluralism
"Legal pluralism," writes Griffiths, is "a concomitant of social pluralism," and it is in this context that a dynamic of social control and social opportunism may occur. Since legal orders are exploited by various power groups as a means of social control, these groups "make competing claims of authority" and "may impose conflicting demands or norms." However, the very competition among power groups allows clients to make use of legal pluralism to advance social ends and gain practical advantages. Both competition and opportunism are at the heart of the social significance of legal pluralism. It is here that patrons of legal institutions (power groups) and clients (litigants) employ a variety of methods for the fulfillment of their respective agendas. While patrons tend to seek exclusive authority, clients may choose to exploit this goal to try to get a "better deal" or extract various benefits. This dynamic can accelerate when claims are put forward on religious grounds, as religious power groups tend to perceive law as crucial for the maintenance of confessional identity. Whatever their grounds, the claims of power groups are all over similar social capitals: "authority, legitimacy, supremacy, and the prerogative of control over matters within their scope." What is more, these claims are not voiced in a void but are often made in relation to claims by competing powers. Consequently, we may find that institutions and forms of legal reasoning and rhetoric undergo modifications within a given legal order in response to those of competing legal orders. In addition, patrons of legal orders may resort to a variety of practical measures for sustaining authority.
Legal Pluralism as a Methodological Paradigm
Legal pluralism can be found in almost any society. As a paradigm, the concept of legal pluralism can be used as a means to shed light on the social context in which it exists. In addition to identifying the patrons, clients, and institutions within a multiplicity of legal orders, legal pluralism can be used to understand the interplay between social phenomena and law. As a paradigm, it helps us to assess the manner in which legal discourse, legislation, legal interpretation, and stipulation reflect the agenda of patrons of legal orders, and the place and conduct of clients within their respective legal orders and, ultimately, social orders. Here it may be useful to view laws as maps, whose "main structural feature . . . is that in order to fulfill their function they inevitably distort reality." Law, likewise, "becomes the . . . way of imagining, representing, and distorting . . . social spaces and the capitals, the actions and symbolic universes that animate or activate them."
Our task, then, is to understand how and for what purposes patrons of legal orders attempt to achieve legal supremacy, and how they take into account the presence of adjacent legal orders. It is equally significant to analyze how clients of legal orders respond to claims of legal authority, exploring in particular the manner in which, for the furthering of their own ends, they exploit, on the one hand, these claims of authority and, on the other, the multiplicity of available authorities.
Legal Pluralism in the Late Antique and Early Medieval Near East
The image that emerges from ecclesiastical and rabbinic legal sources of the period under consideration conforms to the theoretical principles of legal pluralism. The ensuing discussion will show that the patriarchs and the geonim issued their opinions and decrees in the context of competing and overlapping judicial institutions of diverse social and religious backgrounds. Rather than focus on its manifestations, the concept of legal pluralism will serve here to consider the context in which confessional leaders made demands for judicial exclusivity and the means by which these leaders sought to achieve their goals. Because the patriarchs and the geonim opposed the freedom of their coreligionists to choose among a host of judicial possibilities, they had to come up with solutions that would enable them to win the loyalty of their coreligionists, while recognizing the realities "on the ground."
The ability of litigants to bring their suits before more than one judicial institution raises a variety of social questions. Such choice reflects the subordination of litigants to a multiplicity of judicial authorities as well as their affiliation with a multiplicity of social circles. The social questions that come to the fore, therefore, concern not only the agendas of patrons and clients but also the definition of their membership in a given social circle, their claims in favor of one social domain over another, the context of their choices, the forms of social ties they establish, and more.
Non-Muslim Confessional Elites
Ecclesiastical and Rabbanite leaders possessed the power both to conserve and to change the character of social institutions and mores. When we examine the actions of these men, it becomes evident that they were constantly concerned with preserving their authority. But status and power depend on resources; hence, the patriarchs and the geonim employed a variety of methods to secure the latter so as to preserve the former. The particular ways in which they chose to do so depended in part on the character of the ecclesiastical and rabbinic institutions themselves. In considering the agenda of confessional elites in such terms, it is also worth considering how Christian and Jewish communal institutions were put to use for its advancement.
The patriarchs' prerogative to convene synodical assemblies and that of the geonim to issue responsa was of crucial organizational significance, conferring upon these leaders supervisory and coordinating positions. Legal authority entailed more than issuing decrees and expounding the law: the patriarchs and the geonim sought also to ensure the implementation of their understanding of the law and its principles. A close reading of some of the issued canons and responsa along with complementary narratives of diverse genres reveals the kind of messages that brewed in the episcopal centers and the academies and that were later disseminated among the believers. These fulfilled the role of shaping public opinion and served to legitimate the position of confessional elites.
Thus, a complex network of communication was put to use, channeled through subordinated centers of local control, such as peripheral schools of law, monasteries, churches, synagogues, and judicial courts. The effectiveness of ecclesiastical and geonic authority was, to a large extent, dependent on the functioning of this network, as it provided a means for communicating messages as well as for gathering information about prevailing public moods. It is here that a middle rank of agents who stood between the elites and the laity, shuttling information in both directions, played an important role in bringing the latter effectively under the control of the former. The careers of clergy, scholars, local notables, and judges should all be viewed in light of this mediating function. The insistence on outer displays of hierarchy, including the zealous safeguarding of exclusive prerogatives, indicates the strong need on the part of confessional elites to set themselves apart from the masses and to manifest their superiority. The separation served as a reminder of the traditional social balance that had to be maintained and placed confessional elites in a position of exclusivity within well-defined boundaries.
Comparing Non-Muslim Communities: Eastern Christians and Rabbanite Jews
In addition to addressing the reasons for and responses to litigation in extra-confessional institutions, the goal of this study is to present a comparative analysis. The advantage of a comparative study is that it places the data pertaining to each group in a broader perspective, enabling an enhanced appreciation of the commonalities of the two communities and, no less so, of their unique characteristics. Thus, in examining the response of Christian and Jewish leaders to the phenomenon of legal pluralism, we are able to go beyond the immediate concerns of each confessional group separately and raise questions that follow from their juxtaposition. With respect to the differences between these groups, we must note—alongside disparities in communal structures, social institutions, and the nature of authority held by Christian and Jewish confessional leaders—an issue of chronological asymmetry.
Although Christian and Jewish communities formed a dominant part of the religious and social landscape of the Near East at the time of the Islamic conquest, extant source material does not permit us to treat the two religious groups in parallel terms. Whereas the Christian legal sources discussed here were put down between the second half of the seventh century and the end of the tenth century, geonic responsa have largely survived only from the tenth and eleventh centuries, with several exceptions from the ninth century. Scholars of the early Islamic period will rightly observe that this gap in time should not be taken lightly, since the immediate postconquest period is not necessarily comparable with the later period. For one, the formative centuries of Islamic rule, particularly the first and second, witnessed a gradual and partial consolidation of Islamic jurisprudence and judicial apparatus. Whereas church leaders of this period were beginning to sense the competition posed by the emerging administration of their Muslim overlords, those of the later period, along with the Jewish geonim, were already faced with and integrated into a far more developed Islamic state.
While the present discussion focuses on Near Eastern communities, it does not mean to ignore the fact that legal pluralism was not limited to the late antique and medieval Near East. Recent scholarship has drawn our attention to the struggle of religious elites in the western part of the Mediterranean to maintain judicial boundaries in the context of inter-confessional ties. The case of the Jews in medieval Christendom would be of particular use in our case, as it concerns members of religious communities that were founded on similar, if not identical, legal principles.
Thus, for example, a question referred to the Mahram of Rutenberg (Rabbi Meir Ben Baruch, d. 1293) or to the Ragmah (Rabbenu Gershom Me?or ha-Gola, d. 1028 or 1040) pertained to the problem of whether a Jew may argue that his property was unlawfully taken by another Jew in a non-Jewish court. In reply, the petitioned authority answered: "The talmudic ruling to the effect that in Babylonia, one could not press the claim of 'unlawful seizure of real property' applied only to the well-regulated Persian state, the courts of which conducted their affairs in strict justice and truth. In other countries, however, where the judges accept bribery and prevent justice, that talmudic ruling does not apply." The answer reflects close legal and linguistic affinities with geonic responsa, underscoring the shared world of scholarship in which both Ashkenazi and Near Eastern Jewish jurists participated. Furthermore, the answer attests to the existence of similar preoccupations among Rabbanite authorities in medieval Christendom and the geonim. For Christians as well, such questions cut across denominational boundaries.
This study is based primarily on two main bodies of literature: (1) East Syrian and West Syrian legal texts, including the acts of synodical assemblies that issued canons for ad hoc purposes (synodica) from the late seventh century through the tenth century; and (2) geonic responsa: a vast legal corpus consisting of the numerous questions and answers that were exchanged between regional Jewish leaders and the geonim. Church regulations and rabbinic deliberations represent a form of documentary evidence that is less prone to manipulations than narrative sources—chronicles, hagiographies, biographies, and so forth.
Eastern Christian materials—canonical works, or law books, as well as collections of canons—are the product of an ongoing process of legislation by ecclesiastical assemblies, synods, and jurists. These genres of legal literature go back to as early as the first ecumenical councils of the fourth century A.D. and often include principles that were established as early as the second century A.D. Thus, in order to understand the context in which particular regulations appeared, it is essential to trace their origins in early Christian sources.
In addition, it should be noted that despite the affinity between the two sources and their occasional interchangeability, synodica and canonical treatises are to be treated as distinct genres of legal literature. While it can be argued that canonical treatises are a later development from synodical acts, we should not discard occasions in which individual canon laws were themselves proclaimed on the basis of earlier canonical works. Nevertheless, canon laws issued following synodical assemblies and regulations that appear in the works of jurists differ on a number of crucial points. Whereas synodical canons bear the quality of immediacy, canonical regulations evoke the quality of timelessness. In other words, synodical canons can be seen as ad hoc regulations meant to address the exigencies of the moment, while regulations codified into legal treatises were meant to serve successive generations. One manifestation of this difference is in the form and tone of the stipulations. Whereas canonical regulations tend to possess an impersonal character, referring to generic conditions and often formulated concisely, synodical canons tend to be elaborate, refer to specific figures, and consist of words of admonishment and exhortation.
The lists of high-ranking clergy signatory to synodical acts, as well as the scattered references to lower ranks of the clergy, strongly suggest that the contents of these materials were familiar to ecclesiastical officials. Yet in contrast to the case of the Roman Catholic Church, where there is some indication of the involvement of laymen in legislative endeavors and their reception of legislative materials, the situation in the East remains obscure. With regard to the first ecumenical councils, there are signs of the participation of laymen in ecclesiastical affairs in general and in legislation in particular. It has been suggested in the case of the West and East Syrian Churches that the role assigned to the clergy as repositories of legal knowledge may have been greater than in the West or in the Byzantine Orthodox Church.
Having said that, it would be wrong to think of Eastern Christian laymen as being legally ignorant or deprived of access to the contents of legislative materials. The conclusion of the acts of a West Syrian synod, apparently held in 1153, gives clear instructions as to who should be informed of these canons: "We determine and decree, we, all the bishops, and the synod that has been gathered … that for the renewing of the church every year in the Teshris [October or November], these canons shall be read before the people. [This takes place] while all are gathered in the church and they shall hear the canons, and they shall renew these canons by the renewing of the church. There is no authority from God that bishops or priests or deacons may neglect them and leave them without reading." This single testimony suggests that the clergy who were present in synods played a crucial role in transmitting ecclesiastical law and that the task of conveying the law to the laity was to be taken seriously.
Geonic responsa, on the other hand, were issued in reply to legal questions sent from various parts of the medieval Jewish world. In addition to their notable role to interpret the law and expound it, the responsa should be read in the broader context of letter writing, "a constitutive feature of Jewish social networks in the Mediterranean basin and the main medium in which Jews conducted politics from afar." At the same time, however, it should be noted that the vast majority of responsa that have survived are those that were sent to Jewish communities in North Africa and the Iberian Peninsula. This is primarily due to the preservation of documents in the Geniza and the efforts of Jewish scholars from Ashkenaz (Western Europe), who often relied on geonic responsa for their own purposes. According to Simha Assaf, geonic letters in general and responsa in particular would be read on Saturdays in synagogues by a prominent member of the local congregation and later copied and sent out to other communities. Many responsa that were later found in the Geniza are known to have been circulated by Jewish Maghrebi merchants who were constantly on the trade route between North Africa and Iraq. It is in this context that we find Egypt as a point of passage for couriers between east and west. Quite often, letters that were initially written in one location were first copied in Egypt before continuing to their destination.
The responsa cover a wide range of legal topics, including questions of ritual, civil law, and communal administration. As such, they serve as a useful mirror for Jewish life. Yet beyond the challenge of understanding the relationship between the responsa and early rabbinic literature—most notably, the Babylonian Talmud—our ability to draw historical conclusions from this source material depends on a careful examination of their authenticity and compatibility with the historical context in which they claim to be set. Unlike Christian jurists, the geonim rarely resorted to legislation. In fact, aside from two notable cases, the geonim's legal endeavors are primarily seen as interpretations of earlier rabbinic stipulations and principles for purposes of adaptation and accommodation to the needs of their time. The earliest sources we possess from the geonic period date back to the eighth century. Although formally, the geonic period is thought to have begun in the seventh or even the sixth century, the body of responsa now available becomes substantial only with materials dating from the tenth and eleventh centuries.
Part I of this book, which comprises Chapters 1 and 2, is introductory in nature, aiming to provide the reader with a sense of the high measures of legal pluralism that prevailed under the pre-Islamic Roman and Sasanian Empires and throughout the Islamic classical period, namely, until the thirteenth century. These chapters survey the various judicial institutions available to the people of the Near East during these periods and illustrate the fact that in both pre-Islamic and Islamic contexts, the plurality of judicial bodies, generated by a plurality of legal orders, was a matter of special concern for confessional elites and political leaders. These introductory chapters will allow us to approach the question of Christian and Jewish recourse to extra-confessional judicial institutions with the understanding that legal pluralism was neither unfamiliar to the predecessors of the patriarchs and the geonim of the Islamic period nor a challenge unique to non-Muslim confessional elites.
Part II, which comprises Chapters 3 through 6, considers the Christian and Jewish recourse to extra-confessional institutions within the broad context of Christian and Jewish public life. Chapters 3 and 4 concentrate on the organization of Christian and Jewish life in general and of West Syrian, East Syrian, and rabbinic judicial institutions in particular. Chapter 3 provides an outline of Christian communal organization and its judiciary (ecclesiastical and non ecclesiastical) in the period after the Islamic conquest. The chapter highlights the complex structure of Christian elites, consisting of both clerical and lay figures whose authority was based on a variety of social capitals. Chapter 4 maps out the various circles of Rabbanite authority in the late geonic period and identifies their judicial prerogatives. The chapter closes with a comparative analysis of Jewish and Christian social institutions in the early Islamic period. This comparison will allow some preliminary suggestions with regard to the structural differences between Christian and Jewish forms of authority and inter communal relations and discuss the character of Christian and Jewish judicial institutions. Specifically, it will be suggested that whereas the churches appear to have been in competition with Christian figures outside the ecclesiastical hierarchy, rabbinic law enabled the geonim to work in cooperation with Jewish men who had no formal capacity but nonetheless assumed crucial political and social roles in their communities.
Chapters 5 and 6 examine the specific question of Christian and Jewish recourse to extra-confessional judicial institutions. Both chapters begin with an analysis of the factors that prompted Christians and Jews to seek judgment before non ecclesiastical and non-rabbinic institutions, respectively, and the legislative response of their confessional leaders to this social phenomenon. Chapter 6 ends with a comparison of the incentives that drove Christians and Jews to seek judicial services before institutions that were not endorsed by their confessional leaders and the response of confessional leaders to this choice.
The concluding chapter brings to the fore some of the more elusive and controversial questions pertaining to the social history of Near Eastern societies in general, and of non-Muslims in particular in the first five centuries of Islamic rule. It offers a nuanced observation of Near Eastern social arrangements, arguing for the multiplicity of social affiliations, of which membership in a religious community was central but not exclusive.