He points to the inertia of private law, its resistance to change—what Blidstein terms its “notoriously conservative aspect.” Watson is even more categorical in his negative assessment of the capacity of law to adapt to changes in society. “The argument of this book,” he writes, “is that in the West, rules of private law have been and are in large measure out of step with the needs and desires of society and even of its ruling elite; to an extent which renders implausible the existing theories of legal development and of the relationship between law and society.”2 He asks, however, in an important aside, whether “codification,” especially original codes, can “remove the significant divergence between law and society and … abolish legal scaffolding.” By “legal scaffolding,” he means an encrustation of legal rules meant to modify the existing laws but that, in fact, makes them more complex than necessary.3
In a later iteration of his thesis, Watson registers an exception to the rule of inertia in private law. Mercantile custom, he writes, is particularly susceptible to what he calls “transplant bias,” referring to his book Legal Transplants: An Approach to Comparative Law.4 He explains: “What is borrowed is international mercantile law based on what merchants do. To a very large degree, this law is received because the merchants’ business would otherwise be directly disadvantaged.” It is received, moreover, “without the merchants’ having much knowledge of law.”5 Applying Watson’s formulation to the present case, we may imagine a process whereby Jewish merchants in the Islamic world adopted mercantile practices current in the marketplace without necessarily knowing the Islamic law that supported those practices. They would, however, have been exposed to the legal basis for these customs when, as commonly happened, they turned to Islamic courts to draw up and register contracts or when they appeared before a qāḍī to adjudicate disputes. How a jurist like Maimonides confronted, from a traditional Jewish perspective, these new norms of the marketplace—and how he accommodated them in his Code—will occupy us throughout this book.
1.1.1 Codification and Legal Change in Maimonides’ Code
Addressing Blidstein’s query about the historical context of Maimonides’ Code and bearing in mind Watson’s question about codification and legal change, I examine aspects of commercial law in the Mishneh Torah to determine whether—and, if so, how—Maimonides responded through codification to economic realities of his time and place. These realities are revealed especially in the documentary treasures of the Cairo Geniza but also in the responsa of the Islamic period.
Others have noticed echoes of life “on the ground” in the Code but not with reference to the evidence of the Geniza documents.6 Though not without precedent in the history of Jewish codification—as already noted, the Babylonian Geonim compiled dozens of legal monographs on specific subjects, including a number of limited general codes7—Maimonides went a giant step further. He constructed a code that meets the criteria for the kind of compilation envisioned by Alan Watson.8 By breaking the halakha into discrete units, each classified in a rational way that liberated the law from the complexity of Talmudic discourse, it minimized the “legal scaffolding” that Watson describes in connection with Roman and English law. Like the “original” codes envisaged by Watson, Maimonides’ opus can be said to have represented a new “canon” of the halakha.9 It is my considered opinion, and I hope to make the case effectively in this book, that much, if not most, of the enhancements to the commercial law that I have detected in the Code represent Maimonides’ conscious and—from our perspective, at least—original effort to close the gap between the law of the Talmud and the practice of contemporary Jewish merchants, giving Jewish courts a competitive edge in deterring Jewish merchants from recourse to Islamic courts.
If Maimonides’ innovative response through codification to current mercantile practice has not been appreciated, it is partly because Maimonides went to great lengths to assert the conservative nature of his work and partly because scholars have not thought to apply the Geniza evidence to the subject at hand. In his Introduction to the Code, Maimonides proclaimed that it contained nothing new. It was simply a “repetition of the Law,” a phrase generally assumed to echo the term mishneh torah in Deut. 17:18 but perhaps referring to its postbiblical content.10 It consists of a compendium of postbiblical, binding rulings, the latest link in a continuous chain of halakhic writings. It subsumes the Mishna (and its parallel, the Tosefta), Sifra and Sifre (the most legalistic of the halakhic midrashim), the Mishna and Gemara of the two Talmuds, and the legal writings of the post-Talmudic Geonim, as well as his Andalusian teachers. In his Introduction and in other writings, he modestly called the Mishneh Torah his ḥibbur, which he defined as a collection of halakhot without accompanying dialectical examination, similar to the Mishna.11 With this in hand, users would have no need to consult any of those works. While Maimonides’ professed deference to tradition was in keeping with a fundamental principle of codification in the Jewish conception,12 his unprecedented method of omitting sources, coupled with his unambiguous statement that the Code made consultation of prior halakhic literature unnecessary, opened the door to suspicion that he had departed from traditional legal norms.
Maimonides must have anticipated that his method of codification would leave many readers puzzled, if not perplexed. Indeed, this kind of criticism began during his own lifetime in Egypt. When challenged in a letter from Pinḥas ben Meshullam, the judge of Alexandria, to explain halakhot in the Code for which the judge could find no source in the rabbinic corpus, Maimonides insisted sharply that he had not deviated from the tradition and chastised his correspondent for failing to locate the relevant sources on his own. If here and there, he had “originated” a ruling, he said, he had marked it clearly as his own.13 He wrote, further, that he had intended to publish a work explaining his treatment of difficult halakhot—for instance, halakhot based on the Palestinian Talmud, which was not well known to most students and scholars in his time, but he had not found the time to complete that project.14
The omission of sources in the Mishneh Torah unleashed a torrent of commentaries seeking to anchor its rulings in Talmudic literature. Most of the time, the commentators found something. Occasionally, they did not, or they differed with one another, raising suspicions that something was not quite right.
Modern scholars have generally taken Maimonides at his word and accepted the Code as simply a summa of received Jewish law, though the innovative aspects of the Code uncovered in recent years by such scholars as Gideon Libson and Sarah Stroumsa should prepare us to find other features of originality in Maimonides’ great halakhic opus.15 Maimonides’ denial of his originality notwithstanding, it is reasonable to ask, with Blidstein, whether the work responds in some way to everyday life and, with Watson’s question in mind, whether he used codification to reconcile Talmudic law with the custom of merchants in the Islamic world.16 Thanks to the Geniza, we are in a position to answer both questions in the affirmative.
1.1.2 Maimonides in His Society
Maimonides did not live cloistered in a rabbinic academy. He was intimately involved with society, as head of the Jewish community for many years and as jurisconsult, answering questions of Jewish law arising from daily affairs—a “man of action,” to borrow the title of one of Goitein’s essays.17 In economic matters, especially, Maimonides was fully aware of the gulf that separated the world of the Talmud from the world of the Geniza merchants. Though known to us primarily as a philosopher, legist, and physician, his younger Muslim contemporary Ibn al-Qifṭī (1172–1248), who lived in Cairo until 1187, reports credibly in his biographical dictionary of philosophers, scientists, and other learned men, Ta’rīkh al-ḥukamā’, that Maimonides, upon his arrival in Egypt, “made a living by trading in jewels and suchlike.”18 We know from the Geniza that his brother, David, engaged in trade between Egypt and India. Maimonides, furthermore, had passed the early years of his life in the commercial milieu of Muslim Spain, then in the North African trading hub of Fez, before settling in Egypt, the pivotal point in the East-West Mediterranean and Indian
