A Common Justice. Uriel I. Simonsohn
important role in bringing the latter effectively under the control of the former.83 The careers of clergy, scholars, local notables, and judges should all be viewed in light of this mediating function. The insistence on outer displays of hierarchy, including the zealous safeguarding of exclusive prerogatives, indicates the strong need on the part of confessional elites to set themselves apart from the masses and to manifest their superiority. The separation served as a reminder of the traditional social balance that had to be maintained and placed confessional elites in a position of exclusivity within well-defined boundaries.84
Comparing Non-Muslim Communities: Eastern Christians and Rabbanite Jews
In addition to addressing the reasons for and responses to litigation in extra-confessional institutions, the goal of this study is to present a comparative analysis. The advantage of a comparative study is that it places the data pertaining to each group in a broader perspective, enabling an enhanced appreciation of the commonalities of the two communities and, no less so, of their unique characteristics. Thus, in examining the response of Christian and Jewish leaders to the phenomenon of legal pluralism, we are able to go beyond the immediate concerns of each confessional group separately and raise questions that follow from their juxtaposition. With respect to the differences between these groups, we must note—alongside disparities in communal structures, social institutions, and the nature of authority held by Christian and Jewish confessional leaders—an issue of chronological asymmetry.
Although Christian and Jewish communities formed a dominant part of the religious and social landscape of the Near East at the time of the Islamic conquest, the extant source material does not permit us to treat the two religious groups in parallel terms. Whereas the Christian legal sources discussed here were put down between the second half of the seventh century and the end of the tenth century, geonic responsa have largely survived only from the tenth and eleventh centuries, with several exceptions from the ninth century. Scholars of the early Islamic period will rightly observe that this gap in time should not be taken lightly, since the immediate post-conquest period is not necessarily comparable with the later period. For one, the formative centuries of Islamic rule, particularly the first and second, witnessed a gradual and partial consolidation of Islamic jurisprudence and judicial apparatus. Whereas church leaders of this period were beginning to sense the competition posed by the emerging administration of their Muslim overlords, those of the later period, along with the Jewish geonim, were already faced with and integrated into a far more developed Islamic state.
While the present discussion focuses on Near Eastern communities, it does not mean to ignore the fact that legal pluralism was not limited to the late antique and medieval Near East. Recent scholarship has drawn our attention to the struggle of religious elites in the western part of the Mediterranean to maintain judicial boundaries in the context of inter-confessional ties.85 The case of the Jews in medieval Christendom would be of particular use in our case, as it concerns members of religious communities that were founded on similar, if not identical, legal principles.
Thus, for example, a question referred to the Mahram of Rutenberg (Rabbi Meir Ben Baruch, d. 1293) or to the Ragmah (Rabbenu Gershom Me‘or ha-Gola, d. 1028 or 1040) pertained to the problem of whether a Jew may argue that his property was unlawfully taken by another Jew in a non-Jewish court. In reply, the petitioned authority answered: “The talmudic ruling to the effect that in Babylonia, one could not press the claim of ‘unlawful seizure of real property’86 applied only to the well-regulated Persian state, the courts of which conducted their affairs in strict justice and truth. In other countries, however, where the judges accept bribery and prevent justice, that talmudic ruling does not apply.”87 The answer reflects close legal and linguistic affinities with geonic responsa, underscoring the shared world of scholarship in which both Ashkenazi and Near Eastern Jewish jurists participated.88 Furthermore, the answer attests to the existence of similar preoccupations among Rabbanite authorities in medieval Christendom and the geonim. For Christians as well, such questions cut across denominational boundaries.89
Sources
This study is based primarily on two main bodies of literature: (1) East Syrian and West Syrian legal texts, including the acts of synodical assemblies that issued canons for ad hoc purposes (synodica) from the late seventh century through the tenth century; and (2) geonic responsa: a vast legal corpus consisting of the numerous questions and answers that were exchanged between regional Jewish leaders and the geonim. Church regulations and rabbinic deliberations represent a form of documentary evidence that is less prone to manipulations than narrative sources—chronicles, hagiographies, biographies, and so forth.
Eastern Christian materials—canonical works, or law books, as well as collections of canons—are the product of an ongoing process of legislation by ecclesiastical assemblies, synods, and jurists. These genres of legal literature go back to as early as the first ecumenical councils of the fourth century A.D. and often include principles that were established as early as the second century A.D. Thus, in order to understand the context in which particular regulations appeared, it is essential to trace their origins in early Christian sources.90
In addition, it should be noted that despite the affinity between the two sources and their occasional interchangeability, synodica and canonical treatises are to be treated as distinct genres of legal literature. While it can be argued that canonical treatises are a later development from synodical acts, we should not discard occasions in which individual canon laws were themselves proclaimed on the basis of earlier canonical works. Nevertheless, canon laws issued following synodical assemblies and regulations that appear in the works of jurists differ on a number of crucial points. Whereas synodical canons bear the quality of immediacy, canonical regulations evoke the quality of timelessness. In other words, synodical canons can be seen as ad hoc regulations meant to address the exigencies of the moment, while regulations codified into legal treatises were meant to serve successive generations. One manifestation of this difference is in the form and tone of the stipulations. Whereas canonical regulations tend to possess an impersonal character, referring to generic conditions and often formulated concisely, synodical canons tend to be elaborate, refer to specific figures, and consist of words of admonishment and exhortation.91
The lists of high-ranking clergy signatory to synodical acts, as well as the scattered references to lower ranks of the clergy, strongly suggest that the contents of these materials were familiar to ecclesiastical officials. Yet in contrast to the case of the Roman Catholic Church, where there is some indication of the involvement of laymen in legislative endeavors and their reception of legislative materials, the situation in the East remains obscure.92 With regard to the first ecumenical councils, there are signs of the participation of laymen in ecclesiastical affairs in general and in legislation in particular.93 It has been suggested in the case of the West and East Syrian Churches that the role assigned to the clergy as repositories of legal knowledge may have been greater than in the West or in the Byzantine Orthodox Church.94
Having said that, it would be wrong to think of Eastern Christian laymen as being legally ignorant or deprived of access to the contents of legislative materials. The conclusion of the acts of a West Syrian synod, apparently held in 1153, gives clear instructions as to who should be informed of these canons: “We determine and decree, we, all the bishops, and the synod that has been gathered … that for the renewing of the church every year in the Teshris [October or November], these canons shall be read before the people. [This takes place] while all are gathered in the church and they shall hear the canons, and they shall renew these canons by the renewing of the church. There is no authority from God that bishops or priests or deacons may neglect them and leave them without reading.”95 This single testimony suggests that the clergy who were present in synods played a crucial role in transmitting ecclesiastical law and that the task of conveying the law to the laity was to be taken seriously.
Geonic responsa, on the other hand, were issued in reply to legal questions sent from various parts of the medieval Jewish world. In addition to their notable role to interpret the law and expound it, the responsa should be read in the broader context of letter writing, “a constitutive feature of Jewish social networks in the Mediterranean basin and the main medium in which Jews conducted politics from afar.”96