REVIEW: A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam

14935[1]A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam

Uriel I. Simonsohn

Philadelphia: The University of Pennsylvania Press, 2011. 306 pp. Cloth $79.95

Reviewed by Luke B. Yarbrough, Herbert D. Katz Center for Advanced Judaic Studies, The University of Pennsylvania

A Common Justice is hardly the first study to concern itself with Christians and Jews in Muslim courts, a fact that its author documents with considerable care (p. 218, n. 1 and passim). It seems, however, likely soon to become—and long to remain—a standard work on legal pluralism and its consequences in first four centuries after the rise of Islam. At once theoretically sophisticated and philologically meticulous, A Common Justice offers compelling answers to familiar questions, brings new problems to the fore, and builds a stable platform for comparative work by historians in adjacent and cognate fields.

The book owes its motivating tension to a sociohistorical phenomenon that, though far from unique to the Near East in the four centuries following the rise of Islam, has hitherto been insufficiently recognized as characteristic of that period. The phenomenon arises from the range of judicial and quasi-judicial venues available to litigants, especially non-Muslims, who could often choose to take their disputes to either Muslim courts or their own communal authorities, both religious and otherwise. When Jews and Christians exercised their ability to choose, however, elites within their communities often responded in ways calculated to reinforce their own prerogative to hear cases and thereby to retain or attract social power in its various forms. Some of their responses took shape as text; these, which include geonic responsa and the records of Christian synodical assemblies and canon law, furnish Simonsohn’s richest source material, though he also makes judicious use of chronicles, papyri, and Geniza documents, among other sources. Historians have tended to take the textual record of elite responses to forum-shopping, at face value, as confirmation that non-Muslim communities in early Islam were in fact autonomous entities, proto-millets demarcated in accordance with the formal regulations that rabbinic and ecclesial leaders promulgated. Simonsohn, by contrast, reads these sources against the grain, arguing that the textually encoded responses of religious elites to the “forum-shopping” of their coreligionists should be interpreted as “demands for legal exclusiveness within their respective communities,” coupled with a strategic “willingness to modify their own legal orders while recognizing the advantages offered by competing orders” (p. 213).

The author lays groundwork rather deliberately in the first four chapters before proceeding to analyze his key source material in the final two (though this material is far less strictly quarantined than the preview on pp. 19-21 lets on). Readers who are not well versed in the history of the period or the literature on legal pluralism (most notably the works of Caroline Humfress and Gerhard Lenski) may be grateful for this approach. Experts will find Simonsohn’s prolegomenal accounts of Late Antique and early Islamic legal pluralism (Chs. 1-2) and Jewish and Christian religious hierarchy (Chs. 3-4), though frequently reliant upon secondary studies, to be fresh and provocative. If those experts raise objections to the accuracy of his accounts, these are most likely to arise in connection with the generalizations that the project’s broad temporal and geographical scope makes inevitable. To consider just one section in the third chapter, for example, this reviewer would have benefitted from a fuller explanation of how (and which of) al-Ghazālī’s works functioned as the “primary source” for “civil law” in Bar Hebraeus’ Nomocanon (p. 112). Still more beneficial would have been a thorough discussion of the degree to which the deep antinomian streak in Pauline theology set the Christian heritage apart from Islam and Judaism when it comes to the place of law in religious practice (hinted at most directly on p. 109).

On the whole, however, these chapters serve effectively as settings for Simonsohn’s signal contribution, and in fact constitute stimulating contributions in their own right. Chapter 1 anchors an important premise for the project: legal pluralism, defined as a context of “multiple, overlapping legal orders,” was endemic in the Near East prior to the Islamic conquests. Already here (pp. 52-60) the author begins to present the responses of Christian and Jewish confessional leaders to the plural setting in which they sought to gain and keep adherents. Chapter 2 documents pluralism’s persistence into the Islamic period, taking issue with the tendency of foregoing scholarship to view the Islamic judiciary as thoroughly formalized and hierarchical in its function (and not merely in jurists’ idealized descriptions of it); instead, for Simonsohn “personalism and a multiplicity of overlapping institutions continued to dominate the judicial setting” (p. 88). Here he sees the covert survival of pre-Islamic Arabian custom, both as a feature of the Islamic judiciary and in the form of parallel institutions. He might have foreshadowed here a significant conclusion that comes much later: “the notable development under Islamic rule was less the intensification of legal pluralism than the growing demands for judicial exclusiveness” (p. 212).

Chapters 3 and 4 deal with “the state of ecclesiastical and rabbinic judicial organizations in the context of Christian and Jewish public life,” and then compare the two. The overview provides a compact, up-to-date account of the communal leadership of Jewish and Eastern Christian communities that will be especially useful to students. The comparative exercise bears fruit; for example, while Christian confessional elites competed for judicial authority with Christians outside the ecclesiastical establishment, their Jewish counterparts found ways to avoid conflict by integrating Jewish “laymen” into the judicial framework. A common theme, meanwhile, is the inability of either group to enforce their decisions and their consequent reliance upon their communities’ compliance and occasionally upon the support of Muslim authorities. One would like to know more about how far their predicament differed from that of contemporary Muslim judicial authorities.

The final two chapters carry the book’s payload; it is not possible to do them justice here. The account of Christian and Jewish recourse to “nonecclesiastical judicial institutions” and “Islamic courts” (respectively) is magisterial, particularly as it reveals the author’s deep acquaintance with two very different bodies of source material. A particularly striking theme that emerges is the way in which evolving Islamic judicial practices and institutions elicited from Christian and Jewish elites not only resistance and rejection (though there was plenty of this) but also accommodation and imitation, at times to make their own judicial fora more attractive to their coreligionists and at others to provide for the enforcement by Muslims of their own rulings. There were differences, as well; we do not find among Jews the notion that seeking judicial redress for a wrong was itself to be frowned upon (cf. Christian views, e.g., p. 164), or among Christians the rigorous adherence to precedent that characterized geonic discussions of Jews’ recourse to Islamic courts. The Conclusion, though at times densely worded, does a remarkably thorough job of recapitulating the central themes.

The author comes down firmly on two very large debates among historians of pre-modern Islamicate societies. In the running engagement between proponents of formalism and realism in the understanding of how prescriptive discourses were generated and how they affected the conduct of individuals, the author settles in the latter camp; prescription is shot through with political, social, and personal elements. The historical subject, too, is enmeshed in an intricate web of social claims and obligations that cut frequently cross religious boundaries. This view contrasts with a traditionally prevalent one according to which non-Muslim communities were largely self-contained, autonomous entities in which religion, if it did not quite count for everything, can be made to account for most things, above all in the law and in social life. The choice of an issue that by its very nature involved bypassing communal elites and crossing religious boundaries does a certain amount of work for the author in establishing each of these positions.

Simonsohn’s source-rich analysis opens (at least) two avenues for further research. These may be presented as questions. What were the historical aftereffects of rhetoric composed by confessional elites in order to promote judicial exclusivism? The author has made a cogent case that the engine of this rhetoric was competitive self-interest, but has done less to study how it was received and the degree to which it succeeded in constituting discursively the power relations it advocated. If the sources do not yield ready answers to these questions at present, it is nevertheless important that they be held in mind for a day when we hit upon new sources or approaches. The second avenue for further research that Simonsohn has opened, and which has the greatest potential one day to affect his own arguments, leads toward Muslim views on judicial pluralism. Muslim views deserve further attention as they relate both to this particular issue (How, if at all, was the qāḍī to judge among non-Muslims? What were the effects of relevant Muslim policies or tendencies on non-Muslim litigants’ cost-benefit calculations when shopping for a forum, and thus, indirectly, on Christian and Jewish elites’ responses thereto?) and to the larger climate of legal pluralism that the author sketches (How did the madhhabs and other competing loci legal of legal authority contribute and adjust to this climate?). There is much more salient material scattered across the Arabic sources than has yet been brought to light. The scholar(s) who studies this material will have the distinct advantage of learning from Simonsohn’s achievement in A Common Justice.

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