Maimonides and the Merchants. Mark R. Cohen
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work on the Code is Isadore Twersky’s Introduction to the Code of Maimonides, which appeared in 1980.19 In seemingly exhaustive manner, Twersky described the form, scope, classification, language, and style of the work, as well as the revolutionary inclusion of a philosophical credo in a book of halakha. One aspect missing from his study, however, is a social-historical analysis of the Code in the context of everyday Jewish life in the Islamic world. Such an analysis is undertaken in the present book, made possible thanks to the documents of the Cairo Geniza.
0.3 The Cairo Geniza
The extraordinary evidentiary value of the Cairo Geniza for the present study results from the circumstances of its creation and from its contents. Following an ancient Jewish custom practiced by traditional Jews to this day—and by Muslims as well—pages of religious writings no longer in use are “buried,” usually in a cemetery (Islamic practice varies in this regard), and left to decompose on their own, rather than violating their sanctity by physically destroying them.20 Originally, a geniza was designated to accommodate only holy writings, such as torn sections of a Torah scroll or pages from books of the Bible that had become separated from their original codices—this is true of “Islamic geniza” as well, for pages of the Qur’ān.21 Later, the practice was extended to anything written in the Hebrew alphabet.
The Cairo Geniza, discovered in the latter half of the nineteenth century, was “buried” not in a cemetery but in a storage room of a medieval synagogue in Old Cairo (Fustat), the house of worship known today as the Ben Ezra Synagogue.22 Different reasons have been suggested for this seemingly atypical form of geniza,23 but, whatever the reason, the anomaly worked to our good fortune because the contents of the Geniza were all the easier to retrieve, once it was discovered. Moreover, because Egypt has an arid climate, the paper and inks have survived largely intact, even though the fragments are often torn. With careful reconstruction and conservation of damaged portions, the writing is almost as readable today as it was at the time it was written, as long as 1,000 years ago, when the bulk of the earliest dated or datable manuscripts was composed.24
The Cairo Geniza trove numbers (at latest count) some 330,000 folio pages.25 Of these, the vast majority are literary texts. Genres represented include Bible, late antique and medieval Hebrew poetry, midrashic and halakhic works, philosophical treatises, magical and mystical texts, prayer books, and even fragments of Arabic belles lettres and Islamic literature, including pages of the Qur’ān transcribed into Hebrew letters. The rest, probably 20,000 or more self-contained items, are materials from everyday life, which we would call “secular.”26 They date mostly from the eleventh to mid-thirteenth centuries, the so-called classical Geniza period, which includes the years that the Maimonides family lived in Egypt, after arriving there from the Islamic West in 1166. Small amounts of “secular” material date from later times—as late as the end of the nineteenth century.
This “documentary Geniza,” as it is called, following Goitein, includes letters, court records, marriage contracts, deeds of divorce, wills, documents concerning pious trusts, business contracts, merchant accounts, book lists, lists of recipients of charity, and registers of gifts for charitable purposes, and more. Though many of them are in Hebrew or Aramaic, most of them are written in Judaeo-Arabic, that is, Arabic in Hebrew characters, a form of Middle Arabic containing many vernacular features as well as lexical meanings not found in dictionaries of classical or modern standard Arabic. Filled with realia about real people and daily life, these sources reveal aspects of economic, social, and family life, as well as of material culture and individual mentalities that were previously completely unknown.27 With the benefit of the documentary Geniza, we have direct and relatively unmediated access to these realia and a basis on which to evaluate Maimonides’ codification.
0.4 Responsa and Legal Monographs
Legal sources apart from the Code play an essential role in this study as well. They exist primarily in the vast reservoir of Jewish responsa from the Islamic world. A responsum (Heb., teshuva), like an Islamic fatwā, is a legal opinion written by a jurisconsult—in Arabic, a muftī—in answer to a question often arising out of litigation in a court.28 The responsa of the Babylonian Geonim, preserved in editions of medieval manuscripts or retrieved in the form of loose leaves from the Geniza, emanate from Iraq of the eighth to eleventh centuries, before the time of Maimonides. Many, if not most, of them, however, respond to queries from outlying Jewish communities in the Mediterranean, as far away as Spain. Thus, they shed light on commercial life in the geographical area of primary interest here and, importantly, during the centuries for which the Geniza provides no documentary remains.
Other relevant responsa include those of Maimonides’ predecessors in al-Andalus—notably, the illustrious R. Isaac Alfasi (d. 1103), who came to Spain from North Africa and taught in the yeshiva of Lucena, and his equally brilliant disciple and successor, R. Joseph ibn Migash (d. 1141). The latter was the teacher of Maimonides’ father, and through his father, the son absorbed the teachings of that great sage and of Alfasi himself. Maimonides was thus familiar with both the Gaonic and the Andalusian traditions, which need to be taken into account in any study of his Code.
Complementing the responsa of the Babylonian Geonim, another important source emanating from their academies are their legal monographs, most of them written in Judaeo-Arabic. These cover a variety of subjects, many in the realm of civil law. They include treatises on divorce, inheritance, gifts, buying and selling, partnership, preemption, bailment, suretyship, debts, oaths, judicial procedure, and methods of acquisition, as well as formularies for composing different types of legal documents.29 Gaonic legal monographs consolidate rules governing everyday life and represent a sphere of intellectual creativity that took place against the background of the formation and systematization of Islamic law in Iraq and elsewhere. With the exception of the few monographs that were translated into Hebrew in the Middle Ages, most of them are preserved, if at all, in a fragmentary state, including hundreds of small or larger scraps from the Geniza. Robert Brody notes that these Gaonic monographs “practically disappeared from view as the center of gravity of the Jewish world shifted to Christian Europe, beginning in the twelfth century.”30 Like the responsa, however, they are relevant to a socio-legal study such as the present one. A particularly important Gaonic monograph for the subject at hand, partially reconstructed and recently published by Brody from Geniza fragments, is Saadya Gaon’s “Book of Bailment.” This mini-code illustrates how Saadya attempted to accommodate within the halakha the form of commercial agency alluded to above. Saadya’s halakhic step places in bold relief Maimonides’ own and different attempt to assimilate this same merchant custom into Jewish law.31
Of particular importance for this study are the hundreds of extant responsa written by Maimonides himself, most of them “published” in medieval manuscript collections and edited, most recently, by Joshua Blau.32 Many individual responsa, some with Maimonides’ own handwritten answer, were discovered among the manuscripts of the Geniza or elsewhere. Since Maimonides’ responsa date from the twelfth century, their historical value is nearly equivalent to that of the Geniza documents.33 A considerable number of them deal with economic affairs, and, as we shall see, it is sometimes possible to detect nuances in the Code that are illuminated by responsa that he issued.34 Their significance is enhanced by the fact that most of them preserve the original Arabic in which they were composed.
0.5 Historical Versus Comparative Legal Study
The large question that guides this study—the relationship between Jewish law and society in the medieval Islamic world—has, in recent years, been addressed from another angle by Gideon Libson in illuminating research on comparative Jewish and Islamic law.35 His findings, which I will have frequent occasion to cite, have brought to light striking evidence of the relationship between Jewish law and Islamic law in the Gaonic and post-Gaonic periods. Libson shows that halakhists like Samuel b. Ḥofni Gaon (d. 1013) and Maimonides were aware of Islamic law and adopted some of its approaches and rulings in their own legal works.36 He also shows that the Geonim adopted judicial procedures that were prevalent in Islamic sharī‘a courts but inconsistent with Talmudic halakha; and that Maimonides, in his Code, showed awareness of these departures from