12.10.02, Simonsohn, A Common Justice

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Milka Rubin

The Medieval Review 12.10.02

Simonsohn, Uriel I.. A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam. Divinations: Rereading Late Ancient Religion. Philadelphia:University of Pennsylvania Press, 2011. Pp. viii, 306. ISBN: 978-0-8122-4349-9.

Reviewed by:

Milka Rubin
The Hebrew University

Simonsohn's welcome contribution is in his words "an attempt to tell the history of Near Eastern religious communities in the Early Islamic period through the lens of their judicial practices." As such, it purports to show that the paradigm led by Haim H. Ben-Sasson and others, according to which Jewish and Christian communities under Islam were segregated and autonomous, is erroneous. Simonsohn contends that in fact the evidence upon which this paradigm relies, rather than being a reflection of the every-day reality of these communities, actually represents the "discourse of resistance," manifesting, in fact, the aim of the elites of these communities to guard confessional and communal boundaries. The reality, which was much more complex, as Simonsohn demonstrates, is that the Jewish and Christian communities were in fact semi-autonomous communities that were based not only on their religious values and principles, but on social, cultural, economic, political, as well as personal ties with their surrounding society. The multiple connections to the society at large are clearly demonstrated through the use of multiple legal systems by these communities, and especially the use of the Islamic legal system. Simonsohn assigns a central place in his work to the concept of "legal pluralism," defined by its initiator John Griffith as "the presence in a social field of more than one legal order." The term was coined by Griffith during the 1980s, and is opposed to "legal centralism" which reflects "the moral and political claims of the modern nation state" (J. Griffith, Journal of Legal Pluralism, 24 (1986), p. 1. [The journal was given this name only in 1981]). As noted in the book, the idea that provincial customary practices existed beside other formal and centralistic ones and played a role in the development of Islamic law had been suggested already by Patricia Crone, in her book Roman, Provincial and Islamic Law (Cambridge: CUP 1987). Throughout the book, Simonsohn demonstrates the existence of the overlapping jurisdiction of legal orders in Islamicate society, which exposes the competing claims of authority of various groups within the society. He stresses the various partnerships, friendships, collegial ties and financial bonds which cross confessional borders, creating a multitude of social circles, other than communal or confessional, and emphasizes the personal and individual character of the choice of one legal system over another.

The book, which is the fruit of Simonsohn's PhD thesis, is constructed methodically; the first part starts with a survey of the legal systems in the Byzantine and Sasanian Empires and then in the early Islamic empire; the second part, which is the main part of the book, discusses the judicial choices of Christians and Jews in the early Islamic period; first come two chapters which cover the theoretical discussion regarding judicial authorities among Christians and among Jews, and then two additional chapters discussing the recourse of the members of each group to extra-confessional judicial systems.

Chapter 1 is entitled "A Late Antique Legacy of Legal Pluralism." This chapter demonstrates that already in Late Antiquity there existed various judicial systems which existed side by side. Thus Christians in the Byzantine Empire could settle their disputes via an imperial magistrate, a military commander, an ecclesiastical official, local aristocracy, or non-official figures such as a landlord, a village headman, a recluse or a monk. The Empire actually encouraged this pluralism by delegating judicial power to local authorities and to the episcopal courts, local law was sometimes given Roman form, and formal legal documents were written by local notaries.

Although knowledge regarding the Sasanian judicial system is much more limited due to the scarcity of sources, it seems that Christians had recourse to Sasanian judicial institutions; the possibility of turning to a court of law outside of the community encouraged Eastern Christian leadership to consolidate the communal judicial system by harmonizing Christian and Sasanian law in order to create a unified civil and ecclesiastical judicial system for their community.

The situation of the Jews, surveyed shortly, was somewhat different. In the Byzantine Empire their autonomy became restricted with time, and by 529 under Justinian use of Jewish courts was allowed only if both parties requested it. Knowledge regarding Jews in the Sasanian Empire is limited to Jewish sources only, which are naturally biased regarding the question of legal pluralism. When examining the issue of the response of the Christian and Jewish communities to alternative legal systems Simonsohn concludes that "the goal of religious and secular patrons of legal orders was one and the same: legitimacy, supremacy and ultimately exclusivity" (53).

Chapter 2, entitled "Islam's Judicial Bazaar" discusses the evolution of the Islamic judicial organization while stressing the inability of Islam to suppress local and pre-Islamic custom. Simonsohn rejects the claim that there was a process of centralization of the judicial system in the early Islamic empire, which created unity, hierarchy and division of tasks at the center of which stood the Qāḑī. He maintains that medieval Muslim sources which drew this ideal picture aimed to denigrate the pre-Islamic period and draw a picture of an ideal society. Simonsohn claims that in fact much Islamic law emanated from pre-Islamic Arabian society, where social bonds, personal ties, and tribal structures played a central role, and that in effect earlier judicial practices continued to thrive in the Islamic law system, including such elements as the arbiters, Christian holy men, and the ḥakam who was personified in the qāḑī. Qāḑīs, rather than being representatives of the centralist Islamic hierarchy, often practiced in fact independent judgment, and intervened in matters which were non-religious. Rather than fulfilling a strictly religious role, they also served as governors, tax collectors, financial and military officials, and were engaged in commerce. Ibn al-Muqaffa's arguments for centralization, says Simonsohn, actually reflect the efforts of newly converted bureaucrats to change the decentralized character of the judicial apparatus, where much personalism, diversity and multiplicity of institutions is to be found.

We come now to Part II, "The Judicial Choices of Christians and Jews." Chapter 3 discusses Eastern Christian judicial authorities in the early Islamic period. Simonsohn establishes that in practice here too there was legal pluralism. First, within the Christian communities themselves and thus alongside church officials, various figures played judicial roles including archontes and pagarchs in Egypt, monks and stylites, and additional lay personae. More importantly Christians had recourse to Muslim courts, which is discussed broadly later in Chapter 5. Most of Chapter 3 is dedicated to demonstrating the great effort which Eastern Christian communities invested in the creation of a law code that will encompass all aspects of life, including civil law, which in the Christian world was previously the domain of the temporal authorities only. Thus, for example, Roman imperial law, as well as Zoroastrian and Islamic law, were incorporated into East Syrian jurisprudence in the 8th century in reaction to both competition with non-ecclesiastical Christian judicial institutions and an expanding Islamic legal administration. I confess that I was more convinced of the latter (the Islamic competition) than of the former (non-ecclesiastical inner competition). Though non-ecclesiastical competition within the community seems to be indeed hinted at, it does not appear to be as real and as threatening as Muslim competition which, as Simonsohn shows, had a lot to offer. Within the Christian community, the church hierarchy seems to have been quite secure, even if it was not the only judicial option.

Chapter 4 reviews the Rabbinite judicial authorities in the late Geonic period. In this chapter the research was naturally limited to the period following the 9th century due to dearth of material. Here Simonsohn draws a complex and extensive picture of the structure of the Jewish judicial institutions, with an emphasis on their decentralized and loose character. He discusses the position of the authority of the Geonim, and the erosion in their formal power by the end of the tenth century due to such factors as the competition of the local centers, and especially to the autonomous centers in North-Africa; the demise of the center in Palestine; the fragmentation of the Islamic world into multiple centers, and describes the attempts of the Geonim to fortify their position when faced with these obstacles.

He then surveys the Rabbinic judiciary hierarchy, characterized by procedure rather than institutionalization, and reviews the various courts including those of the Geonim; the Dayyanim, being the regional judges, still appointed by Geonic approval in the 11th century; the Zeqenim, an ad hoc institution filled by prominent community members; and the judicial power of the Qahal. Simonsohn stresses the plurality of courts, and the importation of new traditions and practices. At the end of this chapter a close comparison is drawn between the Christian and Jewish communities, creating a close symmetry between the two. At certain instances this seems to go just a little too far, since, as he is well aware, on one hand, Jewish Halakha had always included the civil law missing in the Christian case, while the church, on the other hand, was from the start a very hierarchic organization, and remained so, unlike the Jewish institutions. Nevertheless, the comparison between the reactions of the two to processes occurring in the early Islamic period in enlightening and serves well the claim of legal pluralism.

The next two chapters dealing with recourse to Muslim judicial institutions are the highlight of the book, revealing the incentives and temptations which brought members of the community to prefer the Muslim judicial system over the communal one. Chapter 5, "Christian recourse to non-Ecclesiastical institutions," exposes the motivations of Christians to do so, which include such advantages as the power of enforcement which the Muslim authorities had, and the possibility of formal registration in the case of property and business transactions, securing and implementing wills, manumissions, and even validation of matrimony. Other incentives include escaping church judgments or withholding property from the church, influencing judgment through bribery or social connections, an appeal to Muslim authorities to intervene in internal church matters, and more.

The reaction of the church (both East and West) are mixed; on the one hand, reprimanding, and on the other, attempting to provide a full law code including civil law which will make recourse to Muslim courts superfluous, and even advantageous and more appealing at some instances.

Chapter 6 examines the same question with regards to the Jewish community. Simonsohn adduces profuse evidence showing that most of the incentives listed above were just as relevant to the Jews. The Jewish judicial system was weak; it was often difficult to convene and had limited coercive power. Like the Christian one it could at most excommunicate a recalcitrant member. Many avoided Jewish judgment or threatened to do so in order to reach a favorable compromise; apostates were no longer under Jewish jurisdiction, and creditors preferred to issue deeds of debt in Muslim courts in order to secure their loans. Deeds of land signed by a qāḑī provided a formal legal proof, and the Islamic public record office afforded notarized agreements. Muslim courts could also give a divorce in case Jewish courts made it difficult, and in the case of inheritance--the losing party could always turn to the Muslim courts. In addition, often Muslims were the only witnesses. Like in the Christian case, here too, the Geonim reacted in various manners: Simonsohn shows that the basic tenet was adherence to Rabbinic rules, adapting them to the needs of their time. With regards to Muslim courts, evidentiary evidence attesting to the transaction was accepted (only deeds of sale and loan) while constitutive action was not valid. Answers to questions regarding the validity of the use of Muslim witnesses make a distinction between the respected Muslim courts where the witnesses are muʿāddalīn, i.e. trustworthy, and the provincial courts where the witnesses are not to be relied upon and are considered grabbers (onsim). Recourse to Muslim courts is allowed for compelling recalcitrant litigants found guilty in a Jewish court or for recalcitrant debtors, if they have the means to pay.

Geonim, as shown by Libson, in fact adopted Islamic practices in response to the rivalry with Islamic jurisprudence. They were, however, walking a thin line, since objection or adoption of Islamic legal practices needed to be considered carefully with regard to the public's inclination, due to the fierce competition. Thus, both Christian and the Jewish leadership issued an unequivocal warning against recourse to Muslim authorities, yet both needed to be pragmatic and thus agreed to allow recourse to Muslim courts in certain circumstances.

Simonsohn's book paints a complex and detailed picture of judicial attitudes and practices of the Christian and Jewish leaderships and communities under Muslim rule in the early Islamic period, throwing light on the lives of these communities from a particularly interesting point of view. The presentation of the ample evidence, as well as the discussion, is clear and coherent and the conclusions are convincing and thought-provoking. My only reservation is with regard to the implications that may be deduced from the title of the book: the original title of Simonsohn's work was: Communal Boundaries Reconsidered: Jews and Christians Appealing to Muslim Medieval Near East; I prefer this title over A Common Justice which might lead the reader to believe that the boundaries between the various communities were removed and that there was indeed one common judicial system, or alternatively that the boundaries had become hazy and thus undetectable. The book shows clearly that although there were instances in which recourse to other systems was indeed preferred, this did not in fact undermine the judicial system of the Christian and Jewish communities. In Simonsohn's words: "Judicial choices help stabilize social relations within and between religious communities. Thus, the ability of individuals to choose to create social commitments with individuals outside their confessional community may have been what enabled confessional communities themselves to sustain their relevance and basic structure" (215).

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Milka Rubin

The Hebrew University