A Common Justice. Uriel I. Simonsohn
Читать онлайн книгу.
freely negotiated.”37 Under these circumstances, it is misleading to attribute to confessional communities a monopoly over people’s commitments and loyalties.38
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 Penkāyē commented in his apocalyptic treatise that “there was no distinction between pagan and Christian, [and] the believer was not known from a Jew.”39 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.40
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.41 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.42 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.43
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.44 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.45 It was meant to provide a solution to the challenge of maintaining social-confessional cohesiveness in the context of Islamic permissiveness.46 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.47 In overemphasizing a “homogenous ‘we’ ranged against a homogenous ‘them’ we are risking importing a foreign social setting into our study.”48 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.”49 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.”50 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.”51
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.”52 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.53
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.”54 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.55
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.56 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.57 “Legal centralism” was countered with the idea that the state is not the sole patron of legal systems; it “does not have a monopoly on law.”58 Instead, rather than one law, legal pluralists have advocated for the prevalence of a multiplicity of laws.59
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.60 Here it is important to note that the loci of such legal orders should not be sought out only within the courts.61 In addition