in a given social circle, their claims in favor of one social domain over another, the context of their choices, the forms of social ties they establish, and more.
Non-Muslim Confessional Elites
Ecclesiastical and Rabbanite leaders possessed the power both to conserve and to change the character of social institutions and mores.77 When we examine the actions of these men, it becomes evident that they were constantly concerned with preserving their authority.78 But status and power depend on resources; hence, the patriarchs and the geonim employed a variety of methods to secure the latter so as to preserve the former.79 The particular ways in which they chose to do so depended in part on the character of the ecclesiastical and rabbinic institutions themselves. In considering the agenda of confessional elites in such terms, it is also worth considering how Christian and Jewish communal institutions were put to use for its advancement.
The patriarchs’ prerogative to convene synodical assemblies and that of the geonim to issue responsa was of crucial organizational significance, conferring upon these leaders supervisory and coordinating positions.80 Legal authority entailed more than issuing decrees and expounding the law: the patriarchs and the geonim sought also to ensure the implementation of their understanding of the law and its principles. A close reading of some of the issued canons and responsa along with complementary narratives of diverse genres reveals the kind of messages that brewed in the episcopal centers and the academies and that were later disseminated among the believers. These fulfilled the role of shaping public opinion and served to legitimate the position of confessional elites.81
Thus, a complex network of communication was put to use, channeled through subordinated centers of local control, such as peripheral schools of law, monasteries, churches, synagogues, and judicial courts. The effectiveness of ecclesiastical and geonic authority was, to a large extent, dependent on the functioning of this network, as it provided a means for communicating messages as well as for gathering information about prevailing public moods.82 It is here that a middle rank of agents who stood between the elites and the laity, shuttling information in both directions, played an 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
