of the Taqqana in the Code
In the Code, which was meant to serve all future generations, Maimonides adhered to the status quo ante, codifying the halakha in accordance with ancient practice, leaving the initial silent recitation of the ‘Amida intact.31 Nonetheless, we hear echoes of the taqqana in the Code in directives calculated to achieve the same end. In the halakha about the recitation of the Eighteen Benedictions, for example, Maimonides rules that, following the silent recitation, when the cantor begins chanting the prayer aloud, “everyone must stand and listen and answer ‘amen’ after each blessing, both those who have not yet fulfilled their obligation and those who have already fulfilled theirs.”32 I take this phrase to be aimed at those very people who disturbed the decorum during the cantorial reprise. Maimonides instructs them to adhere to proper conduct after they have finished their silent devotion in order to avoid ḥillul ha-shem. In this way, he achieved the goal of the reform within the context of the existing halakha.
Another echo of Maimonides’ concern about synagogue decorum may be found in a halakha recommending that people clean out their nose and mouth before praying, a practice not required in the Talmud but reminiscent of the Islamic custom of purifying the body before engaging in prayer. This practice would minimize the nose-blowing and expectoration that Maimonides singles out as an embarrassment in the face of Muslim onlookers.33 In short, while Maimonides left the silent recitation of the Eighteen Benedictions on Sabbath and festivals “on the books,” he instituted rules in the Code meant to eliminate the very behavior that had brought him to issue the taqqana in the first place.
An additional reverberation arising from Muslim ridicule of synagogue decorum seems to lurk behind another halakha in the Code. It concerns the seating arrangement during the prayer service.34 In Maimonides’ day, congregants seated themselves haphazardly, facing one direction or another, with no apparent order. This rankled Maimonides’ rationalistic bent—his passion for systematization in all things. Doubtless, too, he worried that Muslims would contrast this unfavorably with the more reverent way of sitting in parallel rows in the mosque on Friday, the day of congregational prayer. And so he sought to change the way things were done.
The reform is enveloped in an ancient halakha from the Tosefta, giving it the sanction of rabbinic tradition. In the Laws of Prayer and the Priestly Blessing, Maimonides draws upon the language of the Tosefta but adds his own twist. He rules that people should sit in straight rows in the synagogue, one row behind the other, everyone facing the holy ark, while the elders sit facing the congregants.35 This pattern recognizably models itself on the orderly positioning of worshipers during the Friday congregational prayer in the mosque. As in the case of the taqqana eliminating the silent recitation of the ‘Amida, Maimonides’ ruling in the Code on seating arrangements responded to a contemporary problem—much as the rulings of the Geonim had done in their day—bringing synagogue practice more into line with the dignified prayer service of the mosque, with its straight, parallel rows of worshipers facing the qibla. If the stories in Arabic sources of Maimonides’ outward conversion to Islam in Spain during his youth at the time of the Almohad persecutions are true, as scholars, including me, are increasingly coming to believe, he would have had direct experience of the mosque service, though even without conversion to Islam, he would have been aware of the orderly pattern of seating in the Muslim house of worship.36
Though his synagogue reform arose from an immediate concern about entrenched patterns of behavior requiring emergency intervention in the form of a taqqana, Maimonides found ways of addressing the problem for the long term in the Code. This amounted to a sub-rosa change in the halakha of Jewish prayer. Similarly, his halakhic adaptations in the realm of commercial law represented a response to deep-seated norms of marketplace practice stemming from the “custom of the merchants” and were meant as permanent adjustments to the halakha.
Chapter 2
Halakha and the Custom of the Merchants
2.1 The Babylonian Geonim and the Custom of the Merchants
Maimonides’ predecessors, the Babylonian Geonim, were quick to recognize the transformation in Jewish economic life that followed the Islamic conquest and, in particular, the role that merchant custom—some of it inconsistent with Talmudic halakha—played in Jewish business affairs.1 With unabashed transparency, they introduced modifications in Talmudic law, without having to call upon the Talmudic principle of dina de-malkhuta dina (“the law of the state is law”).2
A prime example is the order of payment known as the suftaja. Muslim long-distance traders widely employed this fiscal instrument, and Jews themselves may have begun using it as early as the mid-eighth century.3 It is abundantly attested in merchant letters from the Geniza for the eleventh to early thirteenth centuries. In a typical example, person A needed to transfer money to a distant addressee, person C. To avoid the risk of loss of specie, through brigandage, or shipwreck, or other cause, he would send a suftaja in that amount with person B to the addressee, who would cash the suftaja through a local person holding money on behalf of person A. The avoidance of loss due to the danger of transporting specie was considered a benefit to person A, hence a veiled form of interest. For that reason, some Islamic legists objected to the device, and it was problematic for the Geonim as well.4
Queried about the halakhic permissibility of the suftaja,5 an unnamed Gaon authorized its use, even though the Talmud (Bava Qamma 104b) ruled against employing a similar device, called diyoqne (diyuqne), a word taken from the Greek and betraying its origins in the pre-Islamic, Greco-Roman period.6 The responsum is significant, not only because it illustrates realistic rabbinic adjustment to economic change but also for its specific use of the term “custom (or law) of the merchants.” “Our halakha [fiqh] does not support the sending of a suftaja, as our rabbis said: ‘One may not send money with a diyoqne, even if witnesses have signed it.’ However, when we saw that people use it in doing business with one another, we began admitting it in court, lest trade among people cease. We sanction it, no more and no less, in accordance with the ‘custom (or law) of the merchants’ [ḥukm al-tujjār]. Such is the law and nothing should be altered in it.”7 The occurrence of the concept ḥukm al-tujjār in a Gaonic legal opinion—in a Geniza court record from 1141, it is referred to as al-‘āda bi-Miṣr bayn al-tujjār fī l-sharika, “the custom in Fustat among the merchants concerning partnership”8—sanctioning a practice frowned upon by the Talmud but essential in the monetized economy of the Islamic world, is telling. It is reminiscent of the Latin term lex mercatoria, “law merchant,” in medieval Europe, used to describe a body of marketplace customs peculiar to and shared by merchants, and which A. L. Udovitch long ago suggested had a counterpart in what he called “the ‘law merchant’ of the medieval Islamic world.”9 Leaving aside the contentious debate about the merchants’ law in Europe—whether such a corpus of laws really existed; and, if it did, where it first appeared; whether these customs originated with merchants or with legislation by the “state”; whether they represented the common, “transnational” practice of merchants everywhere; and how these customs were transplanted from place to place10—it is clear that the Geonim were aware of and concerned about merchant customs that contradicted Talmudic halakha. Their solution was to let custom override the halakha11 and sanction the suftaja, as they said, “lest trade among people cease.” Saadya Gaon (d. 942) expressed the Gaonic rationale with similar resignation: “In all transactions of the merchants, diyoqna’ot [plural of diyoqne] are not acceptable according to strict law, but the merchants have disregarded [the prohibition] in order to facilitate their transactions.”12 This comment and the remark “We saw that people use it in doing business with one another,” in the
