Maimonides and the Merchants. Mark R. Cohen
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of how charity operated “on the ground.”3 I hypothesized that other subjects in the Code relating to daily life could be similarly illuminated using the same methodology. Commercial law seemed an obvious candidate for further inquiry.
0.1 Jews and Jewish Law in the Commercial Economy of Medieval Islam
The Mishna and its commentaries, the Palestinian and Babylonian Talmuds, put heavy emphasis on agrarian life, and it is certain that most Jews in pre-Islamic Palestine and Babylonia engaged in farming. This does not mean that Jews were not to be found in urban areas. The situation was quite the contrary, especially in Palestine. The many craftsmen mentioned in rabbinic texts probably dwelled in towns, as did many farmers. The merchants we encounter in the Mishna, the Tosefta, and the Gemara of the two Talmuds seem to have operated mainly in local or regional markets connected with farming and handicrafts: the merchants of Jerusalem (tagarei yerushalayim); the merchants of Lydda (tagarei lod); the Gentile merchants (tagarei ummot ha-‘olam, tagarei goyim); and the merchants who (unlawfully) sold produce grown in the sabbatical year (soḥarei shevi‘it). Long-distance commerce was exceedingly rare.
To be sure, one can point to those Jewish members of the triad of adventurous itinerant “Syrian, Jewish, and Greek” merchants, who traversed the western reaches of the Roman Empire and its Germanic successor states in late antiquity and the early Middle Ages. Or one can cite those Middle Eastern Jews who plied the ancient spice-trade route to southern Arabia; or those rabbis and other Jews who traveled from Babylonia to Palestine and sold silk imported from the Far East.4 But these were exceptions proving the rule: Talmudic society rested firmly on an agricultural base. Reflecting the predominantly agricultural character of Jewish society in eastern Roman and Sasanian late antiquity, neither the Palestinian nor the Babylonian Talmud has a well-developed commercial law or maritime law. The Mishna, the foundational text of both Talmuds, assumes a predominantly agrarian economy even in its discussions of commercial exchange.5 It is only in the Gaonic period that we begin to find responsa and other legal texts that deal in detail with commercial matters. This was, in large part, a result of the Islamic conquests.
0.1.1 The Islamicate Commercial Revolution
The advent of Islam in the seventh century brought profound economic changes to the Middle East and to the Jews living there. Beginning with the Qur’ān and the precedent of the Prophet’s own mercantile activities, and building on the extensive trade of pre-Islamic Arabia, Islam showed itself to be more favorably disposed toward commerce and the accumulation of wealth than either pagan Roman or early Christian society.6 The unification through Islamic conquest of the formerly warring great empires of Byzantium and Persia opened up vast territories for long-distance trade and exchange of goods within a single realm. Accelerated urbanization accompanied a monetized “commercial revolution,” to borrow a term used to describe similar economic developments in medieval Europe that began only centuries later. With minimal restrictions, passage through the huge “Domain of Islam,” stretching from Spain to Transoxiana, was open to resident merchants of all faiths, though non-Muslims paid heavier commercial taxes than Muslims, in addition to the discriminatory poll tax, the jizya. Non-Muslim foreign merchants might remain for a year without being required to accept the status of dhimmī (“protected people”) imposed upon native Jews and Christians and a few other groups.7
The territories of the empire possessed extensive resources that fueled this commercial revolution. Access to gold, particularly in conquered lands of West Africa and Nubia, provided abundant currency for the monetized economy. Waterways—the Persian Gulf, the Mediterranean Sea, the Red Sea, the Indian Ocean, as well as many long, navigable rivers—facilitated mid-range and long-distance trade, independent of the slower and more cumbersome overland caravan routes.8 Merchant practices long entrenched in the ancient Near East took off in new directions in the train of Muslim traders. The predominantly agrarian Jewish economy was utterly transformed by these developments.9 Emblematic of this radical change are the Rādhānite Jewish merchants of Babylonia described in Arabic sources from the ninth century, who traded as far as western Europe, at one end, and South Asia and the Far East, at the other.10
The expansion of commerce was accompanied by and benefited from demographic changes affecting the Jews. Some Jews doubtless joined the waves of migrations from the Islamic East to the western provinces at the time of the conquests. They moved west in large numbers later on, during the breakup of the Abbasid Empire into successor states in the late ninth and tenth centuries, establishing new Jewish settlements in the Mediterranean lands and thickening others that were already there. Many of these migrants sought their livelihood in long-distance trade.11
Already in the very early period of Islamic rule, mercantile customs that were hardly known in the Talmud came to the fore. Partnerships for international trade became more complex. A form of commercial agency, likely stemming from the pre-Islamic trade of Arabia but unimagined in the Talmud, became widespread. Shared by all traders regardless of confessional adherence, these forms of business collaboration gave the Islamicate marketplace a truly interdenominational character.12 Islamic law, particularly the Ḥanafī school, originating in Islamic Iraq in the eighth century (the Iraq of the Babylonian Geonim), Baber Johansen writes, considered “commercial exchange … open and accessible to everyone whose rational capacities qualif[ied] him for the calculation of profit and loss, [and] everybody ha[d] access to the bazaar.”13
The Babylonian Geonim, the post-Talmudic halakhic and communal authorities and heads of the yeshivot, or academies of learning, in Islamic Iraq, who dominated rabbinic leadership from the seventh to the eleventh centuries, responded to the new prominence of merchants in Jewish economic life through their responsa, through taqqanot (new legal rulings), or by considering custom as a source of law. Through the lens of the Geniza documents pertaining to commercial life and with an eye on his own responsa, the present book will show that Maimonides (1138–1204) went beyond the Geonim, adapting the halakha to accommodate the new economy through codification in his Mishneh Torah. The present study, therefore, uncovers an aspect of originality and creativity in Maimonidean legal thought that has not hitherto been recognized.
0.2 The Mishneh Torah
Completed around 1178, the Mishneh Torah was unique in the history of Jewish codification.14 In fourteen volumes, it encompassed all of Jewish law, from the Bible through the Mishna, the two Talmuds, and the opinions of the post-Talmudic teachers in the Islamic period, the Geonim and the Talmudists of al-Andalus. In its scope, form, and structure, Maimonides’ Code departed from all earlier efforts to codify Jewish law. Maimonides assembled halakhot that were diffused throughout the classical legal corpus, including laws that would come into force only in the messianic era, and arranged them topically. To make the work even more “user-friendly,” he devised new, rational categories to make it possible to access rulings on specific subjects easily—rulings that, in the Talmuds, are found associatively in a variety of not so obvious places. To make it accessible to all, including those who could not understand the abbreviated Aramaic style of the Talmud, he composed the Code in the lucid Hebrew of the Mishna.15 Further breaking with precedent, he included a basic summary of Jewish beliefs, founded on philosophical principles. In an even more radical departure from the method of classical halakha and that of the Geonim, Maimonides did not identify his sources in rabbinic law.16 Finally, and particularly important for the present study, whereas the Talmud is notably deficient in the field of commercial law, Maimonides established a firm place in the halakha for such subjects as partnership, agency, sale, leasing, and credit, consolidating disparate Talmudic statements on these subjects and, as we shall see, adjusting business law to adapt to the ways of the Islamicate marketplace.
The study of the Code goes back to the author’s own lifetime.17 Its early dissemination evoked questions about its contents from students and other readers.18 The work was the object of particular scrutiny by later medieval and early modern commentators. A selection of important commentaries surrounds the text in the standard printed editions, but the total quantity of premodern and modern commentaries numbers in the hundreds. Many of the commentators’ efforts were devoted to uncovering and citing the sources underlying individual rulings.