Maimonides’ own responsa, we shall see that, despite his disclaimers in the Introduction and in his letter to the Alexandrian judge, in commercial law, Maimonides used codification, in Watson’s words, to “remove the significant divergence between law and society,” namely, traditional Jewish law and his own Islamicate society.
1.2 The Method
New emphases in the Code, new taxonomies of halakhic content, subtle changes of wording, reorganization of Talmudic material, or additional material not found in the Talmudic corpus, all responding to changes in the economic order of the Islamic world, illustrate Maimonides’ method. Taken as a whole, the evidence, often difficult to discern, sheds light from an unexpected angle of vision on the question posed by Watson and by Blidstein about the relationship between law and society and reveals a creative feature of the Code that has not previously been recognized.
To be sure, in bridging the gap between law and society, Maimonides did not operate in an intellectual vacuum. In his attitude toward custom, for instance, he, like the Geonim before him, accepted the rabbinic approval of custom as a valid source of law. Twersky took note of this, but all the examples of local custom that he cites—usually specifically flagged by Maimonides himself as “custom”—belong to the realm of personal, family, and ritual law. Moreover, Twersky asserts that Maimonides was selective and discerning when it came to customs having universal (as opposed to local) validity.19
In his comprehensive review of Twersky’s Introduction to the Code, Blidstein contends that the claim, implicit in Twersky’s work, that the Mishneh Torah shows no signs of the impact of immanent historical, social, and economic forces in the non-Jewish (Islamic) environment, needs further scholarly consideration.20 To this, we may add the following. Twersky discusses “the problem of contradictions” in the Code, “troublesome features” such as statements apparently disagreeing with the Talmud, or with one another, or even statements lacking Talmudic antecedents entirely. He explains them as part of a well-thought-out method with its own logic, rules, and purpose.21 But this fails to take into consideration that, in affairs of the marketplace, Maimonides often diverged from the ancient halakha because that halakha was geared to an economy quite different from the commercial economy of the Islamic world. As we shall see, in commercial law, he made adjustments to the halakha to accommodate customs of the merchants, customs that were deeply entrenched among Jewish merchants. These are revealed in rich and colorful detail in the Geniza documents. In this light, Maimonides’ retort to the judge of Alexandria, like his insistence in the Introduction to the Code that he was simply compiling laws from classical Talmudic and post-Talmudic sources, sounds like a disclaimer intended to ward off criticism that he was, in some cases, overstepping the bounds of traditional Jewish jurisprudence.
1.2.1 Criticism of the Method of the Code
The perplexed judge of Alexandria was far from Maimonides’ only critic. One of his contemporaries, the Babylonian Gaon Samuel b. Eli, protested strenuously against the Code, which, in his view, undermined the teaching of the Talmud and, by extension, detracted from the importance of his Talmudic academy in Baghdad.22 The harshest critic was R. Abraham b. David of Posquières in southern France, although Twersky argues that his biting criticisms were in keeping with acceptable rhetoric of the times.23 Maimonides’ defenders, particularly his son and successor, Abraham, went to great lengths to refute accusations leveled against the Code.24
The vast majority of medieval and early modern commentators approached the Code with a more reverent attitude. They searched for Maimonides’ sources in classical rabbinic texts or in works of his predecessors in the Islamic period. Their goal was not to challenge the Code but rather to rehabilitate it. When they failed to find a reasonable underpinning for a ruling on commercial law in the Code, it was often because they did not fully understand the economic realia of Maimonides’ time.
1.3 Maimonides’ Reforms of Synagogue Practice and Their Relationship to the Code
To illustrate the interplay of law and society in Maimonides’ thought, I review here his well-known reform of the synagogue service—particularly, how he translated almost surreptitiously what was an ad hoc taqqana into a permanent change in the halakha in the Code. If Maimonides was willing to institute reforms in the sensitive area of religious practice in his Code, we should not be surprised to discover that he instituted changes in the less controversial domain of commercial law.
1.3.1 The Taqqana Abolishing the Silent Recitation of the ‘Amida on Sabbath and Festivals
Sometime after his arrival in Egypt around 1165, Maimonides promulgated an “ordinance” (rutba in the Arabic original of Maimonides’ responsa, translated as taqqana by the editor, Joshua Blau, and so referred to in the scholarly literature)25 abolishing the silent recitation of the Eighteen Benedictions, also called the ‘Amida prayer (lit., “standing”) because it is recited while erect. Traditionally, during the morning and afternoon prayers on the Sabbath and festivals, the ‘Amida was recited first by the congregation praying silently along with the cantor, after which the cantor repeated the prayer aloud. The purpose of the repetition was to enable congregants who did not know the prayers by heart to fulfill their liturgical obligation by listening as the cantor repeated each blessing and by responding “amen.” During the evening prayer, the Eighteen Benedictions were recited only once, silently, because that prayer was originally considered optional and therefore no obligation fell upon congregants to recite it.
Maimonides explained his action as a response to indecorous behavior during the service. During the reader’s repetition, members of the congregation who had already fulfilled their obligation by praying silently with the cantor were in the habit of getting up from their places during the cantor’s repetition, stepping outside, talking to one another, blowing their noses, spitting on the floor, and, in the process, turning away from the direction of prayer—which Maimonides, like other Jewish writers before him, calls qibla, employing the Islamic term for the direction of prayer toward the holy city of Mecca.26 This lack of decorum was not peculiar or new to Maimonides’ time and place. A responsum of the Babylonian Gaon R. Naṭronai b. Hilai (Gaon from 857/858 to 865/866) reprimands Jews who sit in the courtyard outside the synagogue during services, talking and making light of the sanctity of the prayers.27
Maimonides notes that the disrupters set a bad example for others, who imitated their gauche behavior. Consequently, the cantor’s repetition on their behalf fell unheeded, and the blessings that he chanted were for naught (berakha le-vaṭala). In addition, the people for whom the repetition was intended ended up failing to fulfill their obligation to at least hear the prayer. Maimonides was especially disconcerted by the prospect that Muslims, who “observe this with their own eyes” (yashhadūnahu), would think that, for Jews, prayer was “for fun [la‘b] and mockery [huzu’],” quoting the very words that the Qur’ān ascribes to the People of the Book when they mock Islam (Sura 5:57). We may imagine that Muslims passing by the synagogue during daylight hours overheard and even observed the chaotic spectacle inside the synagogue compound and ridiculed it. The reform, Maimonides asserted, limiting the ‘Amida to a single, public recitation led by the cantor with all congregants praying along or answering “amen,” aimed at removing a stain on the reputation of the Jews in Muslim eyes, a “profanation of the name of God” (ḥillul ha-shem), as he writes, citing a general rule.28
We learn about Maimonides’ reform from his responsa, which portray the taqqana as an expedient and as a response to an immediate problem. Such changes in the halakha were normally time-bound, enacted to address an urgent situation. They were justified by the principle that one may “violate” the law (haferu toratekha)29 when the alternative—leaving the law as is—would have dire consequences. This was a perfect case, then, for applying the haferu toratekha rule, which Maimonides invokes explicitly in explaining
