A Common Justice. Uriel I. Simonsohn
Читать онлайн книгу.
interest in sustaining past agreements.15 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.”16 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;17 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.18 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.19
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).20 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.”21
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.22 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.23 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.24 The use of such expressions as “nation” and “national unity” to describe Christian and Jewish communities ascribes to dhimmī groups features similar to those found in medieval Christendom or in modern societies.25 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.26 Quite often, this formality has been taken for reality.27 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.28 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.29 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.30 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.31
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.32 This plurality of authorities was dictated by a rich matrix of social ties that transcended confessional lines, thereby undermining the very notion of autonomy.33 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.34 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.”35
Thus, terms such as ḥaqq (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.36 Rather than seeking the corporate, we should be in search of the individual and personal. It was through the latter that individuals became