appear to have been primarily Islamic courts. This book examines the legislative response of Christian and Jewish religious elites to the problem posed by the appeal of their coreligionists to extra-confessional judicial institutions. Focusing on the late seventh through the early eleventh century in the region between Mesopotamia in the east and North Africa in the west, the study explores the multiplicity of judicial institutions that coexisted under early Islamic rule as part of the complex array of social obligations that bound individuals across confessional boundaries. Contrary to the notion of a non-Muslim autonomous existence in a rigid social setting, strictly demarcated along confessional lines, a comparative study of Christian and Jewish legal behavior under Islamic rule exposes a considerable degree of fluidity across communal boundaries. Such transcendence of religious affiliation threatened to undermine the position of traditional religious elites. In response, these elites acted vigorously to reinforce communal boundaries, censuring recourse to external judicial authorities and threatening transgressors with excommunication.
Maintaining judicial power as a means of sustaining social power and religious boundaries was of great importance for Christian and Jewish elites even prior to Islamic rule. The sages of the Mishnah (the tannaim) as well as the early church fathers had been preoccupied with similar, if not exactly the same, concerns. In early rabbinic Judaism, the discussion dealing with appeal to Gentile courts (‘arkha’ot shel goyim) reflects an ambiguous approach. Despite their general opposition, the early rabbis permitted recourse to non-Jewish courts for purposes of issuing evidentiary documents, such as deeds of sale and loan, and for coercing recalcitrant litigants to obey the decisions of Jewish courts. Yet while the early Christian position appears to have been much firmer in its objection to the use of nonecclesiastical courts, its exact meaning as to the identity of these courts remains unclear. Early Christian sources use a variety of expressions when referring to nonecclesiastical courts and judges, such as “secular,” “outsiders,” and “nonbelievers.” In general, the early church fathers argued, litigation should be avoided; yet if inevitable, it should be pursued only before “the saints,” the appointed bishops.
It is therefore evident that the rise of Islam and its subsequent rule did not trigger Christian and Jewish judicial preoccupations. The reliance of non-Muslim confessional leaders on legal principles formulated in the pre-Islamic period and their resort to some of the rhetorical motifs that had already been employed by their predecessors attest to the endurance of these concerns. Nonetheless, the frequency of references made by non-Muslim leaders to the problem of recourse to extra-confessional judicial institutions as well as the high tones in which they often expressed their objections in the period following the Islamic conquest suggests not merely a continuity but also an intensification in their concerns.1
The East Syrian and West Syrian Churches under Early Islamic Rule
Two Eastern Christian churches are at the center of this study: the East Syrian (so-called Nestorian) and West Syrian (Jacobite or Syrian Orthodox) Churches. The history of these churches and their parallel formation should be traced back to the Christological disagreements of the fifth century. The theological controversies on the subject of the human and divine natures of Christ dominated the ecumenical councils of Ephesus (A.D. 431) and Chalcedon (A.D. 451). It was in these controversies that the formation of the East Syrian and West Syrian Churches was conceived. The council of Ephesus saw the climax of the controversy between the Dyophysites, who adhered to the doctrine of two natures in Christ; and the Miaphysites, those in the Roman Empire who opposed this interpretation and argued for a single nature.
Twenty years later, at Chalcedon, a failed attempt to reconcile Miaphysite factions resulted in a second blow to Roman aspirations for ecclesiastical unity. By now, the adherents of a Miaphysite Christology had begun to adopt sectarian features.2 These developments eventually gave rise to the formation of local Miaphysite churches, a process that reached its height in the sixth century, following the policies of hostile emperors—most notably, those of Justinian (r. 527-65). It is within this history of doctrinal divisions that we should locate the origins of the two churches that constitute the Christian component of the present study: the East Syrian Church of Seleucia-Ctesiphon and the West Syrian Church of Antioch.3
Initially forming a significant part, if not the majority, of the population, the Syriac-speaking Christians of Mesopotamia and the Fertile Crescent were descendants of native as well as Greek cultural traditions. Since they sat at a cultural crossroads and experienced frequent changes of political authority, the cultural diversity of these people seems hardly surprising.4 Cultural vehicles such as poetry, chronicles, hagiography, and architecture were put to work as a means of transmitting a “Christian message.”5 This message was often conveyed through the intellectual endeavors of monks in the outskirts of lay settlements. Thus the merging of pious and cultural enterprises served to enhance loyalty to the church and to local identities.6
For Near Eastern Christians, perhaps the most remarkable effect of the Arab conquest was the withdrawal of their past sovereigns. By the end of the first half of the seventh century, the subjects of the Sasanian and Eastern Roman Empires were under Arab rule. Yet despite their unique character and particular development, these churches had certain features in common. The image is one of a general continuity in communal structures, cultural affiliations, doctrinal divisions, and administrative patterns.7 Left to their own devices (or given the freedom to regain their authority), ecclesiastical leaders under Islam continued to assert their control over their clergy, churches, monasteries, and schools. These institutions appear to have remained, for the most part, intact and unaffected by the turbulence of warfare in the first centuries of Islamic rule. Thus patriarchs were able to retain their positions; but instead of paying tribute to the Roman or Persian governments, they paid it to an Islamic caliphate. At the top of the local ecclesiastical organization, the bishop retained his dual role as spiritual guide and administrator.
Near Eastern Rabbanite Jews
The second confessional group with which this study is concerned is the Near Eastern Rabbanite Jews of the later geonic period (tenth and eleventh centuries). In principle and quite often in practice, Rabbanite Jews were affiliated with the geonic centers of Babylonia and Palestine and their extensions over the vast territory between Iraq and Ifrīqiya (modern-day Tunisia). It is in this context that we find the activity of the geonic academies, as these institutions of learning were the product of an ongoing institutionalization of the rabbinic networks that had created the Mishnah and the Talmud.8 Thanks to their scholarly reputation and hereditary office, the heads of the geonic academies of Babylonia and Palestine were perceived by a significant part of the Jewish world as spiritual leaders, entrusted with the duty (and prerogative) of guiding groups and individuals in questions of law and communal life.
The history of the geonic period is also a history of Jewish factionalism in which competing allegiances promoted the fragmentation of local communities into separate, often rival, congregations. At the same time, however, it should be observed that contention and factionalism were not necessarily signs of a declining Jewish world but rather suggest a thriving one, reflected by the fierceness of the struggle for authority. Indeed, hundreds of thousands of documents from the Cairo Geniza attest to the richness and vitality of Near Eastern Jewish life. It was a period in Jewish history that gave rise to a Judaeo-Arabic culture, a melding of ancient Jewish traditions with the nascent Islamic civilization. It is here that we find Jewish intellectuals assuming an active role in a general atmosphere of intellectual and cultural prosperity. It is here, too, that we notice a remarkable resistance on the part of many who fought not only for the preservation but also for the ongoing development of Jewish jurisprudence.
Dhimmī Autonomy
There is much to be said for considering the history of Christian and Jewish groups under Islamic rule collectively. Drawing on common theological and civil legacies, the Christian and Jewish communities under Islamic rule resembled each other in many ways.9 They shared an eventful pre-Islamic past, in which the parting of the ways most likely came at a much later
