A Common Justice. Uriel I. Simonsohn
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At the same time, however, it should be noted that the vast majority of responsa that have survived are those that were sent to Jewish communities in North Africa and the Iberian Peninsula.97 This is primarily due to the preservation of documents in the Geniza and the efforts of Jewish scholars from Ashkenaz (Western Europe), who often relied on geonic responsa for their own purposes. According to Simha Assaf, geonic letters in general and responsa in particular would be read on Saturdays in synagogues by a prominent member of the local congregation and later copied and sent out to other communities.98 Many responsa that were later found in the Geniza are known to have been circulated by Jewish Maghrebi merchants who were constantly on the trade route between North Africa and Iraq.99 It is in this context that we find Egypt as a point of passage for couriers between east and west. Quite often, letters that were initially written in one location were first copied in Egypt before continuing to their destination.100
The responsa cover a wide range of legal topics, including questions of ritual, civil law, and communal administration. As such, they serve as a useful mirror for Jewish life. Yet beyond the challenge of understanding the relationship between the responsa and early rabbinic literature—most notably, the Babylonian Talmud—our ability to draw historical conclusions from this source material depends on a careful examination of their authenticity and compatibility with the historical context in which they claim to be set.101 Unlike Christian jurists, the geonim rarely resorted to legislation. In fact, aside from two notable cases, the geonim’s legal endeavors are primarily seen as interpretations of earlier rabbinic stipulations and principles for purposes of adaptation and accommodation to the needs of their time.102 The earliest sources we possess from the geonic period date back to the eighth century. Although formally, the geonic period is thought to have begun in the seventh or even the sixth century, the body of responsa now available becomes substantial only with materials dating from the tenth and eleventh centuries.
Structure
Part I of this book, which comprises Chapters 1 and 2, is introductory in nature, aiming to provide the reader with a sense of the high measures of legal pluralism that prevailed under the pre-Islamic Roman and Sasanian Empires and throughout the Islamic classical period, namely, until the thirteenth century. The chapters survey the various judicial institutions available to the people of the Near East during these periods and illustrate the fact that in both pre-Islamic and Islamic contexts, the plurality of judicial bodies, generated by a plurality of legal orders, was a matter of special concern for confessional elites and political leaders. These introductory discussions will allow us to approach the question of Christian and Jewish recourse to extra-confessional judicial institutions with the understanding that legal pluralism was neither unfamiliar to the predecessors of the patriarchs and the geonim of the Islamic period nor a challenge unique to non-Muslim confessional elites.
Part II, which comprises Chapters 3 through 6, considers the Christian and Jewish recourse to extra-confessional institutions within the broad context of Christian and Jewish public life. Chapters 3 and 4 concentrate on the organization of Christian and Jewish life in general and of West Syrian, East Syrian, and rabbinic judicial institutions in particular. Chapter 3 provides an outline of Christian communal organization and its judiciary (ecclesiastical and non ecclesiastical) in the period after the Islamic conquest. The chapter highlights the complex structure of Christian elites, consisting of both clerical and lay figures whose authority was based on a variety of social capitals. Chapter 4 maps out the various circles of Rabbanite authority in the late geonic period and identifies their judicial prerogatives. The chapter closes with a comparative analysis of Jewish and Christian social institutions in the early Islamic period. This comparison will allow some preliminary suggestions with regard to the structural differences between Christian and Jewish forms of authority and intercommunal relations and discuss the character of Christian and Jewish judicial institutions. Specifically, it will be suggested that whereas the churches appear to have been in competition with Christian figures outside the ecclesiastical hierarchy, rabbinic law enabled the geonim to work in cooperation with Jewish men who had no formal capacity but nonetheless assumed crucial political and social roles in their communities.
Chapters 5 and 6 examine the specific question of Christian and Jewish recourse to extra-confessional judicial institutions. Both chapters begin with an analysis of the factors that prompted Christians and Jews to seek judgment before nonecclesiastical and non-rabbinic institutions, respectively, and the legislative response of their confessional leaders to this social phenomenon. Chapter 6 ends with a comparison of the incentives that drove Christians and Jews to seek judicial services before institutions that were not endorsed by their confessional leaders and the response of confessional leaders to these acts.
The concluding chapter brings to the fore some of the more elusive and controversial questions pertaining to the social history of Near Eastern societies in general, and of non-Muslims in particular in the first five centuries of Islamic rule. It offers a nuanced observation of Near Eastern social arrangements, arguing for the multiplicity of social affiliations, of which membership in a religious community was central but not exclusive.
PART I
Legal Pluralism in Late Antiquity and Classical Islam: Survey and Analysis
CHAPTER 1
A Late Antique Legacy of Legal Pluralism
The present chapter is primarily a survey of the various judicial institutions that were available under late Roman and Sasanian rule, from the late fourth century A.D. to the Arab conquest. The function of this survey is to set the stage for subsequent chapters, which deal with the early Islamic period; it will also serve to establish that a trend of multiple, overlapping legal orders was not unique to the period following the Islamic conquest but characterized Near Eastern late antique societies from early on. A consideration of the various judicial possibilities that were available to the subjects of the two empires highlights the fact that the Roman and Sasanian states were not the sole patrons of legal orders. This picture, described below in detail, conforms to the concept of legal pluralism. While in the later Roman Empire, for example, Roman law was valid in imperial courts and those of rural settlements, the law’s application in the latter was often compromised by customary and indigenous practices.
The people of late antiquity had a range of judicial institutions from which to choose. These varied in their methods, sources of legitimacy, and locations. In addition to imperial and ecclesiastical courts, a host of informal judicial institutions handled disputes and legal transactions. This reality allows us to view the society under discussion in more complex terms, as governed by a constant negotiation of authority among various social powers. At times, negotiation gave way to contention, particularly in the context of authority claims made by religious leaders. Accordingly, with respect to certain well-defined issues, the church fathers and the Rabbanite sages fiercely guarded the boundaries of their respective jurisdictions.
Legal pluralism exists across a number of legal orders as well as within a single legal order. Whereas the bishop court was part of the Roman legal apparatus