Maimonides and the Merchants. Mark R. Cohen
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query about the historical context of Maimonides’ Code and bearing in mind Watson’s question about codification and legal change, I examine aspects of commercial law in the Mishneh Torah to determine whether—and, if so, how—Maimonides responded through codification to economic realities of his time and place. These realities are revealed especially in the documentary treasures of the Cairo Geniza but also in the responsa of the Islamic period.
Others have noticed echoes of life “on the ground” in the Code but not with reference to the evidence of the Geniza documents.6 Though not without precedent in the history of Jewish codification—as already noted, the Babylonian Geonim compiled dozens of legal monographs on specific subjects, including a number of limited general codes7—Maimonides went a giant step further. He constructed a code that meets the criteria for the kind of compilation envisioned by Alan Watson.8 By breaking the halakha into discrete units, each classified in a rational way that liberated the law from the complexity of Talmudic discourse, it minimized the “legal scaffolding” that Watson describes in connection with Roman and English law. Like the “original” codes envisaged by Watson, Maimonides’ opus can be said to have represented a new “canon” of the halakha.9 It is my considered opinion, and I hope to make the case effectively in this book, that much, if not most, of the enhancements to the commercial law that I have detected in the Code represent Maimonides’ conscious and—from our perspective, at least—original effort to close the gap between the law of the Talmud and the practice of contemporary Jewish merchants, giving Jewish courts a competitive edge in deterring Jewish merchants from recourse to Islamic courts.
If Maimonides’ innovative response through codification to current mercantile practice has not been appreciated, it is partly because Maimonides went to great lengths to assert the conservative nature of his work and partly because scholars have not thought to apply the Geniza evidence to the subject at hand. In his Introduction to the Code, Maimonides proclaimed that it contained nothing new. It was simply a “repetition of the Law,” a phrase generally assumed to echo the term mishneh torah in Deut. 17:18 but perhaps referring to its postbiblical content.10 It consists of a compendium of postbiblical, binding rulings, the latest link in a continuous chain of halakhic writings. It subsumes the Mishna (and its parallel, the Tosefta), Sifra and Sifre (the most legalistic of the halakhic midrashim), the Mishna and Gemara of the two Talmuds, and the legal writings of the post-Talmudic Geonim, as well as his Andalusian teachers. In his Introduction and in other writings, he modestly called the Mishneh Torah his ḥibbur, which he defined as a collection of halakhot without accompanying dialectical examination, similar to the Mishna.11 With this in hand, users would have no need to consult any of those works. While Maimonides’ professed deference to tradition was in keeping with a fundamental principle of codification in the Jewish conception,12 his unprecedented method of omitting sources, coupled with his unambiguous statement that the Code made consultation of prior halakhic literature unnecessary, opened the door to suspicion that he had departed from traditional legal norms.
Maimonides must have anticipated that his method of codification would leave many readers puzzled, if not perplexed. Indeed, this kind of criticism began during his own lifetime in Egypt. When challenged in a letter from Pinḥas ben Meshullam, the judge of Alexandria, to explain halakhot in the Code for which the judge could find no source in the rabbinic corpus, Maimonides insisted sharply that he had not deviated from the tradition and chastised his correspondent for failing to locate the relevant sources on his own. If here and there, he had “originated” a ruling, he said, he had marked it clearly as his own.13 He wrote, further, that he had intended to publish a work explaining his treatment of difficult halakhot—for instance, halakhot based on the Palestinian Talmud, which was not well known to most students and scholars in his time, but he had not found the time to complete that project.14
The omission of sources in the Mishneh Torah unleashed a torrent of commentaries seeking to anchor its rulings in Talmudic literature. Most of the time, the commentators found something. Occasionally, they did not, or they differed with one another, raising suspicions that something was not quite right.
Modern scholars have generally taken Maimonides at his word and accepted the Code as simply a summa of received Jewish law, though the innovative aspects of the Code uncovered in recent years by such scholars as Gideon Libson and Sarah Stroumsa should prepare us to find other features of originality in Maimonides’ great halakhic opus.15 Maimonides’ denial of his originality notwithstanding, it is reasonable to ask, with Blidstein, whether the work responds in some way to everyday life and, with Watson’s question in mind, whether he used codification to reconcile Talmudic law with the custom of merchants in the Islamic world.16 Thanks to the Geniza, we are in a position to answer both questions in the affirmative.
1.1.2 Maimonides in His Society
Maimonides did not live cloistered in a rabbinic academy. He was intimately involved with society, as head of the Jewish community for many years and as jurisconsult, answering questions of Jewish law arising from daily affairs—a “man of action,” to borrow the title of one of Goitein’s essays.17 In economic matters, especially, Maimonides was fully aware of the gulf that separated the world of the Talmud from the world of the Geniza merchants. Though known to us primarily as a philosopher, legist, and physician, his younger Muslim contemporary Ibn al-Qifṭī (1172–1248), who lived in Cairo until 1187, reports credibly in his biographical dictionary of philosophers, scientists, and other learned men, Ta’rīkh al-ḥukamā’, that Maimonides, upon his arrival in Egypt, “made a living by trading in jewels and suchlike.”18 We know from the Geniza that his brother, David, engaged in trade between Egypt and India. Maimonides, furthermore, had passed the early years of his life in the commercial milieu of Muslim Spain, then in the North African trading hub of Fez, before settling in Egypt, the pivotal point in the East-West Mediterranean and Indian Ocean trade. Reading the Code in the light of Geniza documents from everyday economic life as well as in the light of Maimonides’ own responsa, we shall see that, despite his disclaimers in the Introduction and in his letter to the Alexandrian judge, in commercial law, Maimonides used codification, in Watson’s words, to “remove the significant divergence between law and society,” namely, traditional Jewish law and his own Islamicate society.
1.2 The Method
New emphases in the Code, new taxonomies of halakhic content, subtle changes of wording, reorganization of Talmudic material, or additional material not found in the Talmudic corpus, all responding to changes in the economic order of the Islamic world, illustrate Maimonides’ method. Taken as a whole, the evidence, often difficult to discern, sheds light from an unexpected angle of vision on the question posed by Watson and by Blidstein about the relationship between law and society and reveals a creative feature of the Code that has not previously been recognized.
To be sure, in bridging the gap between law and society, Maimonides did not operate in an intellectual vacuum. In his attitude toward custom, for instance, he, like the Geonim before him, accepted the rabbinic approval of custom as a valid source of law. Twersky took note of this, but all the examples of local custom that he cites—usually specifically flagged by Maimonides himself as “custom”—belong to the realm of personal, family, and ritual law. Moreover, Twersky asserts that Maimonides was selective and discerning when it came to customs having universal (as opposed to local) validity.19
In his comprehensive review of Twersky’s Introduction to the Code, Blidstein contends that the claim, implicit in Twersky’s work, that the Mishneh Torah shows no signs of the impact of immanent historical, social, and economic forces in the non-Jewish (Islamic) environment, needs further scholarly consideration.20 To this, we may add the following. Twersky discusses “the problem of contradictions” in the Code, “troublesome features” such as statements apparently disagreeing with the Talmud, or with one another, or even statements lacking Talmudic antecedents entirely. He explains them as part of a well-thought-out method with its own logic, rules, and purpose.21 But this fails to take into consideration that, in affairs of the marketplace, Maimonides often diverged from the ancient halakha because that halakha was geared to an economy quite different from the commercial economy of