...................................................................................
...................................................................................
From the moment of revelation, the most explicit manifestation of God’s will and accord with temporal beings has been seen in the implementation of his law. Full compliance with the latter is considered a sign of religious conviction, an expression of unconditional devoutness. It is in this context that we find the judge functioning as an intermediary between God and his people, an executer of divine providence and the supreme overseer of social order. The present discussion offers a comparative analysis of the application of justice in Near Eastern Jewish, Christian, and Muslim communities in the first few centuries after the Islamic conquest. Justice is a very broad topic, bearing relevance to scholars of diverse disciplines, including theology, law, and ethics, among numerous others, but the perspective offered here is strictly that of social history, with particular emphasis on the interplay between law and society. It is my premise that the application of justice was perceived as a form of mediation between God and his believers carried out through the central role of the judge. Given this premise, I attempt to unfold some of the social aspects of that role by reviewing its diverse forms and modes of practice within the lives of communities that belonged to the three monotheistic traditions under discussion.
The Muslims, Jews, and Christians of the early Islamic period were settled across a vast territory stretching from Mesopotamia in the east and along the coasts of the Mediterranean in the west. Despite the highly local nature of confessional communal arrangements, both Jewish and Christian communities maintained firm relations with distant centres of authority from which they drew guidance and leadership in matters of a social, spiritual, and quotidian nature. In general terms and to varying degrees, the Rabbanite Jewish congregations, such as those of Iraq, Syria, Palestine, Yemen, Egypt, and North Africa, are known to have submitted to the authority of the exilarch (resh galuta), the gaonic academies of Sura and Pumbedita (based in Baghdad by the late ninth century), and to the gaonic academy in Palestine. At the same time, having congregated around communal institutions, Jews owed allegiance to regional (as opposed to central) leaders as well. These men were not only former disciples of the gaonic academies but also individuals who had acquired their offices thanks to their erudition, their affiliation with local rabbinic schools, their mercantile activities, or their membership in prominent households.1
The Christian communities at the centre of this discussion were affiliated with the East Syrian and West Syrian Churches, also known, respectively, as Nestorians and Jacobites. Like the Rabbanite communities, eastern Christian communities were scattered throughout congregations that submitted to the authority of ecclesiastical centres lacking any precise geographical boundaries. Predominantly, the East Syrian patriarch, the catholicos, held sway from his seat in Ctesiphon (and later from Baghdad) over an ecclesiastical setting that extended throughout Mesopotamia, eastern Arabia, and the Iranian plateau, with missionary posts as far east as India and China. His West Syrian counterparts sat in Antioch, holding jurisdiction over a region previously under Roman sovereignty, and in Takrīt, the West Syrian centre that had dominated the region under Sasanian rule.2
Despite some notable differences between the Jewish and Christian communities, on the one hand, and their Muslim overlords, on the other, the Muslim communities were similarly headed by caliphs and scholars whose powers were sanctioned by their religious authority. Here, lineage, prodigy, piety, and scripture were invariably recruited for the sake of leadership and spiritual guidance. While the Muslims did possess a clear political centre—the caliphal court and its subordinate governors—in practice, the prominence of local aristocracies suggests a relatively loose setting of administrative commitments.3
The authority of the geʾonim rested on a relatively informal set of arrangements. Whereas caliphs and patriarchs drew their authority from a highly formalized and structured administrative hierarchy, the gaʾon was often forced to rely on a set of social contracts underpinned largely by interpersonal ties and master–disciple bonds. In all three religious communities, however, the heavy reliance of central confessional authorities on regional agents attests to the delicate position of the former. Although the geʾonim, patriarchs, and caliphs tended to present their authority in exclusive terms, significant evidence suggests that their social and spiritual patronage was often contested by individuals of diverse backgrounds. Gaonic authority was regularly compromised by regional Rabbanite leaders, ecclesiastical leaders expressed their discomfort with the influence exerted by Christian lay figures, monks, and holy men, and the caliphs are recorded as frequently vying for authority with scholars and political adversaries. Thus, in all three cases we find central confessional leaders working hard to maintain relations with regional agents in order to fortify their position atop a hierarchical setting designed to secure their control and their office.
The social picture that emerges is highly complex, involving a variety of players who possess diverse forms of social capital and seem to have been in constant negotiation or competition over power. This image is confirmed and further enhanced when observed through the attitudes of religious elites to judicial power. The latter’s demands for judicial exclusiveness in various contexts highlight the prominent role of judicial institutions as a means of asserting and sustaining social control. Their outlook stemmed from the principal premise that a key mechanism for maintaining religious, political, and social powers was a legal apparatus that would preserve the confessional and social commitments of communal members.
Jewish, Christian, and Islamic conceptions of justice were formulated against the background of their respective scriptural traditions. Scripture constituted the primary source of reference for confessional laws, which governed every aspect of life, including the principles of judicial practices (Crone and Hinds 1986: 44; Elon 1994: I. 4; Hallaq 2005: 21, 33). For the adherents of Judaism, Christianity, and Islam, it was the biblical past that was to legitimize and set a precedent for later practices and institutions (Walzer et al. 2000: xl). The legal orders underlying the lives of these communities were founded upon a divine covenant between the biblical primordial forefathers and God, the one and only true judge (See Pirkei Avot 4: 8; 2 Tim. 4: 1; Rebstock 1999: 2). According to this covenant, the community was established ‘as a sacral fellowship under God’ (Walzer et al. 2000: xxxix). As such, it relied on the services of mediators, whose duty it was not only to convey divine messages but also to ensure their implementation through judicial sanction. The images of Moses, David, Solomon, Paul, and Muhammad as lawmakers and judges are only some of the better-known examples of leaders who had set down principles for future generations of judges, and whose careers provided exemplary models for these later judges.
The Bible calls for the appointment of judges over every tribe and in every town, exhorting the Israelites’ judge to pursue ‘justice, and only justice’ as part of the fulfilment of God’s promise to his people (Deut. 16: 18–20). Justice is to be upheld in the most rigorous fashion by those chosen qualified individuals, first the tribal judges and later the Levites and priests (Deut. 17: 8–9). At the same time, the general public was not released from the obligation to enforce justice as well: ‘The congregation shall judge between the slayer and the avenger of blood, in accordance with these ordinances’ (Num. 35: 24). Whereas the biblical narrative reflects a society that was regulated by a well-defined judicial apparatus, the principal approach presented in the Gospels exhorts believers to resolve their disputes quietly (Matt. 18: 15–17). Within the broader exhortation to refrain from dispute and retaliation, the Christian believer is also encouraged to refrain from condemning his neighbour and even to overlook his sins (Gould 1993: 123–32). Only as a final resort, if a dispute is inevitable, is it to be brought before the church for arbitration (The Apostolic Constitutions, 2: 6). Those who are to sit in judgement are the saints (1 Cor. 6: 1–2), the shepherds of the flock, the bishops. At this early stage of Christianity, however, the bishop’s jurisdiction was limited to matters considered holy, leaving unto the temporal leader what was his (Matt. 22: 21; Mark 12: 17).
The Quran calls for the dispensation of justice in accordance with God’s revelation. Thus, for example, sura 4: 105 reads: ‘Surely we have sent down to thee the Book with the truth, so that thou mayest judge between the people by that God has shown thee.’ The image of the judge is modelled here on that of Muhammad, whose mission as a messenger of truth was to uphold the ideals put forth by God and his Book (Hallaq 2005: 43). It was Muhammad who laid the foundations of an Islamic judiciary, setting an example for future Muslim judges (Tyan 1938: I. 19). However, despite the close association between polity and judiciary, it has been noted that the Quran refers to Muhammad’s judicial authority only once as an ordinance of sovereignty (Schacht 1966: 10). His judicial authority was first and foremost religious. It follows (much as it does from the principles expressed in the Christian tradition) that, had Islamic ethics been fully implemented, an Islamic legal system would have been entirely redundant. Hence the recurring insistence on forgiveness found in the Quran, as in sura 2: 263: ‘Honourable words, and forgiveness, are better than a freewill offering followed by injury; and God is All-sufficient, All-clement’; or sura 4: 149: ‘If you do good openly or in secret or pardon an evil, surely God is All-pardoning, All-powerful’ (Schacht 1966: 11).
Jewish rabbinic judicial practices of the early Islamic period trace their immediate origins to historical precedents and legal deliberations of the period following the destruction of the Second Temple (c.70 ce). While modern scholars have been inclined to view Talmudic law as ‘the guide of the Jewish judges in the dispensation of justice’ (Mann 1919–20: 342), they have also come to recognize the difficulty of obtaining an ‘accurate description of the judicial institutions and their infrastructure’ through early rabbinic sources (Hecht et al. 1996: 124; see also Baer 1950: 7). Thus, any attempt to reconstruct the foundations on which early medieval rabbinic institutions of justice operated must be qualified by this vagueness. Nonetheless, what emerges clearly from the Mishnah and the Talmud is the image of a Jewish leadership bereft of the political prerogatives of sovereign agents (Walzer et al. 2000: xxi).
In general terms, early rabbinic sources speak of permanent judicial bodies before which Jews were to settle their disputes and regulate their legal affairs. Yet these same sources also refer to individuals who assumed judicial authority on an ad hoc basis without the formal appointment of central institutions. Within this relatively fluid definition of judicial authority, rabbinic law provides rules and definitions that placed certain limits on the array of choice between various authorities and regulated the manner in which judicial procedures were to take place.
A judge’s authority was heavily dependent on his reputation as a gamir, a learned individual well immersed in the law. In other words, the authority of judicial figures was grounded in their claim to knowledge—of legal texts as well as of the hermeneutical rules for the interpretation of these texts (Walzer et al. 2000: 248). Jewish judges did not possess the coercive means of state officials. Rather, their judicial decisions were enforced by virtue of the belief of those appearing before them in the validity of Jewish law and in the competence of their judgement. Whereas judgement was the prerogative of laymen as well as scholars, a penalty could be meted out only by an expert (mumḥe). Nevertheless, the effectiveness of a punitive ruling was dependent on the willingness of the general public to endorse it, as judges had little if any real means of coercion. The collective will of the community was therefore crucial for the execution of a judicial decision, imbuing the judicial procedure with a distinct social dimension, of which the most explicit expressions were ostracism (shamta) and excommunication (ḥerem) (Elon 1994: 19, 23).
Although the ecclesiastical judiciary was consolidated following its formal endorsement during the reign of Emperor Constantine (r. 306–37), pre-Constantinian episcopal courts are illuminating as early prototypes of this institution. The bishop’s court was established as part of a broader endeavour to provide the individual believer with a communal framework founded upon Christian principles of normative behaviour. As such, the court was perceived as one of the principal aspects of the bishop’s role as protector of his community (Brown 2001: 67; Harries 1999: 73). Christians were expected to settle their legal concerns in episcopal courts, which gradually assumed a position analogous to that of the Roman civil system (Humfress 2007: 154). By the fourth century, ecclesiastical courts were recognized as formal judicial institutions in the Roman Empire. In 318, the episcopalis audientia, the episcopal tribunals, received the state’s formal recognition.4 Despite common features between the episcopalis audientia and secular imperial institutions, the bishop’s court, unlike its secular counterpart whose jurisdiction pertained only to civil matters, gradually came to possess jurisdiction over both civil and religious matters, and moreover, from a Roman legal point of view, was considered an institution of arbitration.
Further east, under Sasanian rule, the East Syrian Church sought to create its own autonomous judicial institutions (Macomber 1968: 181; Krikorian 1981; McDonough 2005: 253–5; Erhart 2001: 127; Baum and Winkler 2003: 20; Payne 2010: 400). The reign of the Sasanian monarch Yazdegerd I (r. 399–420) marked the beginning of an era of tolerance toward non-Zoroastrian minorities in the Sasanian Empire. The synod of 410 announced Yazdegerd’s ‘Edict of Toleration’ for the East Syrian Church, granting it autonomous standing within the Sasanian Empire and promising the state’s enforcement of ecclesiastical judicial decisions. Just below the catholicos, East Syrian bishops functioned as judges and had their decisions enforced through the mechanisms of the Sasanian state. Whereas the catholicos stood at the top of this legal order, East Syrian bishoprics, scattered over a wide territorial jurisdiction, facilitated the judicial activities of local ecclesiastical judges.
Unlike rabbinic law, early ecclesiastical legal principles were restricted to matters of religion. Nonetheless, our evidence suggests that under both Roman and Sasanian rule ecclesiastical judges were expected to rule on worldly affairs as well, that is, to apply what is commonly termed as secular law, or civil law, pertaining to rules dictated by private and civil rights. Ecclesiastical judges under late Roman rule are known to have resorted to Roman imperial law, with the assistance of lay legal advisers (assessores) (Humfress 2007: 206), while fifth- and sixth-century East Syrian legal collections suggest the incorporation of civil legal principles into the ecclesiastical legal system itself and of rulings by clergymen in areas of civil law (Selb 1981–9: I. 42; Rose 1982: 160; Erhart 2001: 127; Mathisen 2001: 4).
By 632, following Muhammad’s death, the young Muslim community was still in the process of defining its legal doctrine and institutions. It is likely that Islamic principles of justice, as known from the Quran, had already been articulated at this stage, or else were formulated shortly thereafter. Yet the tribes about to emerge from Arabia did not yet have at their disposal anything that may be described as a coherent legal apparatus capable of adequately attending to the needs of the fledgling Muslim community. While Islamic law in general and its early judicial institutions in particular trace their origins to the time of Muhammad, their development should be considered in light of the non-Muslim legal traditions and practices that were prevalent in the areas that fell under Islamic rule and pre-Islamic Arabian practices. Modern scholars seem to agree about the emergence of Islamic law and judicial practices from older legal traditions and administrative arrangements, though they part ways on the question of the exact sources. The three main regions described in modern scholarship as providing inspiration for Islamic law are Arabia, the Fertile Crescent, and Iraq (Tyan 1938: I. 119, 131–2, 138; Schacht 1959; Schacht 1966: 26; Crone 1984: 167; Morony 1984: 37, 85; Crone 1987b: 8, 15, 107–8; Motzki 2002: xv; Hallaq 2005: 8, 19; Jany 2008: 149).
The question of origins aside, it is reasonable to assume that the first generations of Muslims to settle outside Arabia carried with them an Arabian legal heritage, better known as Arabian customary law (Khadduri 1955: 20; Hallaq 2005: 18). According to Wael Hallaq (2005: 8), Arabian societies and cultures ‘provided the larger context in which Islam, as a legal phenomenon, was to grow’. This is why the rulings of the first generations of Muslim judges were most likely based on the only system with which they were familiar, namely that of customary Arabian practices.
It is in Arabia that the precedent of the prophet, an Arabian arbiter and the first Muslim arbiter, provided the immediate judicial model upon which future generations of Muslim jurists would seek to ground the principles of Islamic justice. In addition to the teachings of the Quran, the principal source on which the first generation of Muslim qāḍīs based their rulings was prophetic practice, the sunna.5 With time, however, as Islamic societies expanded and new challenges required new solutions, the Quran and sunna were augmented by additional sources of judicial reasoning (Schacht 1966: 26; Goitein 1968: 162–3; Zaman 1997: 9; Hallaq 2005: 53; Masud, Peters, and Powers 2006: 6).
With the exclusion of criminal law, non-Muslim protected communities (dhimmīs) were granted legal autonomy by their Muslim overlords, giving their judicial institutions jurisdiction over a wide range of legal affairs in the realms of religious and civil laws (Fattal 1958: 344–65; Goitein 1967–93: II. 311; Libson 2003: 81). Accordingly, the vast majority of cases brought before non-Islamic courts involved family law, monetary affairs, and issues of morality and religious conduct (Goitein 1967–93: II. 2).
Rabbinic judicial arrangements and practices in the period under discussion are often portrayed in modern scholarship within the framework of broader historiographic accounts (for exceptions, see Assaf 1924; Hurvitz 1995). A crucial hindrance to studies dealing with rabbinic judicial practices in the early Islamic period is the scarcity of extant evidence. This methodological difficulty is particularly acute for the period between the Islamic conquest and the second half of the ninth century and is eased significantly from the tenth century and on—a time for which substantial data offered by documents from the Cairo geniza in general and gaonic responsa in particular. Thus, for the period leading up to the late ninth century, modern scholarship has been largely inclined to base its analysis on the premise of a general institutional continuity from the times of the Talmudic sages (Brody 1998: xix).
Far more evidence is available about the social history of the eastern churches after the Islamic conquest, yet here too, direct evidence about the exact nature of the ecclesiastical judicial organization is slim (Kaufhold 1984: 91). Consequently, as in the case of Jewish studies, modern scholarship has failed to produce comprehensive accounts that deal exclusively with the question of the ecclesiastical judicial administration. Instead, the topic has been addressed through two broader perspectives—the history of the eastern churches under early Islamic rule, and the history of eastern Christian ecclesiastical law. In this context, the individual histories of the various churches are of particular relevance. While these churches shared a common juridical background, their separate existence over time introduced a gradual codification of legal collections that were built upon or in dialogue with local legal traditions (Selb 1981–9: I. 39; II. 77; Hage 1999; Kaufhold 2005; Humfress 2007: 206; Pennington 2007: 387). Thus a substantial part of our knowledge regarding the state of the ecclesiastical judiciaries in the early Islamic period derives from the Christian legal literature composed around that time.
The most comprehensive study on the Islamic judiciary remains Émile Tyan’s 1938 oeuvre Histoire de l’organisation judiciaire en pays d’Islam. In the decades since its publication, the topic has been addressed predominantly in numerous studies on the history of Islamic law and jurisprudence. Unlike the limited nature of the sources that shed light on Jewish and Christian judicial institutions, the Islamic source material is ample and highly diverse, including judicial manuals (adab al- qāḍī ‘the etiquette of judging’), biographic dictionaries, historiographic narratives, belles-lettres, and formal judicial decrees (Masud, Peters, and Powers 2006: 2).
Their unique character and independent formation notwithstanding, the Jewish, Christian, and Islamic judicial organizations exhibit not a few striking similarities. Underlying these similarities is a crucial interplay between religion and society, between religious law and social life. Legal stipulations not only provided practical guidance to believers regarding their religious practices, their daily affairs, and their encounters with adherents of other religions, but also instilled in their minds a notion of membership in confessional units that transcended local affiliations. In this respect, a centralized judicial apparatus played a crucial role in sustaining communal membership and cohesion. Legal scholars and social historians acknowledge the role of law in general and of its judicial application in particular as a means of social control, particularly through the monopolizing of norms (Mann 1986: 7, 22; Satlow 1996: 274, 294; Rosen 2000: 35; Hurvitz 2003: 986). The attempts of the confessional leaders under discussion to achieve these goals should be considered in the context of a multiplicity of social and religious powers of some judicial capacity or another, a predicament that oftentimes forced central confessional leaderships to share their judicial authority with other social agents, such as prominent merchants, landowners, scholars, holy men, and courtiers (Mann 1986: I. 17–18; MacEvitt 2008: 12; Rustow 2008: 70; Rustow 2009: 133–59).
Rabbinic judicial institutions and practices should be considered against the background of a constant tension between the centralist positions of the gaonic academies in Palestine and Iraq, on the one hand, and regional conditions, on the other. A significant contributing factor to this tension seems to have been the simple fact of the physical distance between the academies and the various regional communities, which not only solidified the latter’s subordination to the former but also served as a catalyst for the development of local customs (Libson 2003: 34). The geʾonim of Babylonia presented themselves and were perceived by their supporters throughout the Near East and the Mediterranean Basin as heirs to a long chain of authorities dating back to the times of the early Rabbanite sages in Palestine and Babylonia (Gil 2004: n. 87; Brody 1998: 56–8). Accordingly, they claimed legal supremacy and maintained the office of the bet ha-din ha-gadol (great court), over which would preside the second in rank to the gaʾon, the av bet din (head of the court). At the same time, the gaonic centre in Palestine presented itself as the legal court of the entire Jewish diaspora (Lifshitz 1982–3: 268). And while rabbinic communal institutions in gaonic times did gradually assume a more institutionalized character than that of the communal institutions of antiquity, still, the hierocratic principle was maintained (Brody 1998: 38), meaning that gaonic centres were acknowledged as a supreme court and the responsa issued there were considered binding rulings (Lifshitz 1982–3: 268, 276).
The tenth-century Epistle of Rabbi Nathan the Babylonian paints a portrait of a territorial division of administrative jurisdictions, reshuyot, allocated to the exilarch, the two geʾonim of Babylonia (of Sura and Pumbedita), and the gaʾon of Palestine (Neubauer 1887–95: II. 78, 85–7; Hurvitz 1995: 166–8). Within each jurisdiction, the exilarch or the gaʾon directly controlled the judicial appointments of regional communities. In exchange for regularly supplying judges (or affirming their appointment) and supervising their work, the head of the rashut received an annual income from each community. These centralist prerogatives are mentioned also in a letter from 1036 outlining the authority of the Palestinian gaʾon. The document is a draft of a letter to a Jewish notable in Egypt in which the Palestinian gaʾon requests a renewal of his appointment from the Fatimid caliph al-Mustanṣir (r. 1036–94). The document lists a series of prerogatives traditionally reserved for the gaʾon, including the exclusive right to appoint and dismiss communal officials and oversight of the judicial courts (Goitein 1980: 70–6; see also Rustow 2008: 294–6).
While the exact jurisdictions and complete application of the reshuyot is hard to establish, the extant evidence suggests that such arrangements were anything but theoretical; regional communities within the reshuyot did indeed submit to the authority of the four centres (Mann 1919–20: 336; Sklare 1996: 80–3, 97–8; Brody 1998: 125–6). But this historiographic view requires some qualification. Although Rabbanite regional leaders shared a common pattern of expressing loyalty to the gaonic centres, it would be wrong to treat in similar terms the Jewish communities outside the reshuyot and those within them. The Jewish communities that had begun by the late tenth century to consolidate their local institutions in North Africa, Sicily, and even before that in Spain, were beyond the direct authority of the central academies in Babylonia and Palestine, in both theory and practice (Ben-Sasson 1996; Ben-Sasson 2004; Cohen 1997: 73–86). Their relations with the gaonic centres appear to have been inconsistent, with some regional leaders maintaining close relations with more than one of the gaonic academies in Iraq and Palestine, and others manifesting relations that ranged from complete subordination to nominal salutation (Ben-Sasson 1996: 401; Bareket 1999: 111). Alongside to the numerous geniza letters and gaonic responsa that attest to the intimate relations between graduates of the gaonic academies and their former masters in important regional centres, such as Fusṭāṭ and Qairawān, there are also indications that certain regional Rabbanite leaders operated more independently (Goitein 1967–93: II. 4, 12; Gil 2004: 154–6, 167–82; Cohen 1997: 79). The latter, it has been argued, were not prepared to treat gaonic responsa as judicial verdicts, fearing these may undermine their own authority (Lifshitz 1982–3: 297). But despite their hegemonic aspirations, and particularly from the end of the tenth century and on, the geʾonim acknowledged their dependence on the recognition of their authority by regional leaders and no less on the donations sent to the academies by regional communities. Thus they ultimately legitimized the autonomous standing of regional judicial institutions and accommodated themselves to it (Ben-Sasson 1996: 298, 304).
As an institution, the office of the ecclesiastical judge continued to function after the Islamic conquest despite the change in political circumstances. Canon 6 of an East Syrian synod from 676 provides a vivid image of the manner in which justice was to be administered, at least from the standpoint of ecclesiastical officials. The canon stipulates that lawsuits among Christians are to be brought before the judgement of individuals who have been designated by the bishop. The principle of judicial hierarchy can be discerned through the canon’s appeal to litigants to forward their petition to the bishop himself if they are dissatisfied with the verdict they received or harbour doubts about the integrity of the ecclesiastical officials who issued it (Synodicon orientale, 484–5). Thus, supreme judicial powers were held by the head of the church, who in turn delegated that power along a hierarchical chain of officials, starting with the metropolitans, continuing with the bishops, and reaching down to archdeacons and priests (Selb 1981–9: I. 129, 194, 201, 203; Kaufhold 1984: 92). Serving at the top of the judicial hierarchy, the ecclesiastical judge is not only the supreme judicial officeholder but also appoints and oversees the work of other judges within his jurisdiction. These judges were appointed from among the clergy, an arrangement that greatly contributed to the centralization of ecclesiastical power in general and of its judicial prerogatives in particular but also held significant risk for the church. Unlike its position under late Roman rule or even under Sasanian rule, the ecclesiastical court under Islam did not enjoy the formal sanction of the state. Moments of crisis, such as a temporary vacancy in the patriarchal office, served as ripe opportunities for various parties within the churches and outside them to undermine ecclesiastical authority, leading to a state of administrative havoc.6 Thus, patriarchs took pains to assure the loyalty of their clergy, an endeavour that is highly attested in the numerous synodical recordings.7
Generally speaking, the eastern churches continued to run their affairs almost undisturbed under early Islamic rule,8 while their social significance even increased. In addition to ecclesiastical and monastic affairs (ranging from property to disciplinary issues), the themes of eastern Christian synodical canons from the early Islamic period reflect a growing concern with administrating justice among the laity. The ecclesiastical jurisdiction was gradually extended to questions of marriage, inheritance, charity, usury, slavery, orphans and widows, property, and various disputes (Selb 1981–9: I. 149–50, 215). The process of incorporating civil regulations into ecclesiastical law, which had already been initiated by the East Syrian church under Sasanian rule, not only intensified under Islamic rule but also came to cut across denominational boundaries. The evidence suggests that, within a few centuries of the conquest, civil regulations became part and parcel of the ecclesiastical legal codifications of the different churches. The impetus for this development may be gleaned from a remark made by the East Syrian catholicos Timothy I (d. 823), linking the trend of Christian recourse to non-Christian (i.e. Islamic) tribunals to the church’s failure to provide its believers with a civil legal code (Putman 1975: 61). The first significant attempt to create a comprehensive ecclesiastical legal code that would include civil regulations appears to have been that of the East Syrian cleric Išōʿbokt (eighth century; exact dates unknown) (Kaufhold 1971: 22). In the introduction to his law book, Išōʿbokt laments a reality in which
the Christians are divided based on the laws stipulated in the land of the Romans and those in the land of the Persians. The latter are further distinguished from those in Babylonia, Khuzistān, and Mēšān. Similarly, there are differences in legal affairs in additional places, as even [between] districts and towns. Although the Christian belief is one, the law is not one and not the same. (Sachau 1907–14: III. 9)
Išōʿbokt explains this state of legal disorder by the fact that Christian judges inconsistently rely on early and later legal sources, leaving much to personal discretion. Thus, while religious figures like Išō’bokt may have been reluctant to include temporal concerns within the ecclesiastical jurisdiction, they could no longer accommodate the absence of a unified ecclesiastical code that includes civil law regulations.
Parallel efforts seem to have been initiated by West Syrian ecclesiastical jurists as well. A collection of synodical acts and civil regulations found in a manuscript from 1204 displays an undisturbed legal link between the first ecumenical councils and the acts of a synod held in 1153. Though it is hard to determine when and how civil regulations came to be included in West Syrian legal collections, it is useful to note the compiler’s introductory note to this West Syrian collection:
We begin to write the book that contains all the new canons of the later patriarchs…and all the laws, judgments, sentences, and heritages and the rest [of the administrative affairs] of the Greek kings (i.e. Roman emperors), as well as of all the judgments, laws, sentences, heritages, [legislation regarding] liberation of slaves, and of all the properties and the rest [of the administrative affairs] of the Arab rulers under whose sentences the believers act and whose laws they accept. (Vööbus 1975–6: Vol. 368, 23)
We may assume that life under Islamic rule induced ecclesiastical authorities to incorporate civil regulations into their legal collections, thus allowing their courts to expand their jurisdiction over their dispersed congregations. Here it is noteworthy that, whereas the East Syrian church was already forced to adapt to non-Christian rule before the Islamic conquest, the churches of the West Syrians, at least those of the former Roman Empire, faced this challenge only after the Islamic consolidation of power (Crone 1980a: 71 n. 55). In both cases, the expansion of ecclesiastical law was designed, among other things, to address the risk of ecclesiastical leaders losing control over their communities.9
The pre-Islamic institution of arbitration did not disappear following the rise of Islam. Early Islamic sources attest to the presence of arbiters centuries after the Islamic judicial apparatus had taken form, thus forcing the incorporation of this institution into Islamic law (Tillier 2009: 309, 313). This is reinforced by the fact that the first Muslims who settled outside Arabia chose to sustain their tribal organization.10 S. D. Goitein (1968: 134) has noted that ‘ḥukm al-Jāhiliyya, judgement according to arbitrary opinion or established local practice, did not disappear immediately…but was replaced gradually…by a legal system worked out on religious lines’. In fact, the persistence of pre-Islamic Arabian customs was reflected not merely in the institution of the arbiter but also in the type of law to which early Muslim judges made reference in their judgement. In an eighth-century administrative treatise, the Abbasid secretary ʿAbdallāh b. al-Muqaffaʿ (d. c.758) criticized Iraqi Muslim judges for rendering judgements based on a customary practice (sunna) that was not prescribed by the prophet or in the Quran (Hallaq 2005: 38). Ibn al-Muqaffaʿ called for a comprehensive legal reform that would bring Muslim judges under the direct authority of the caliph and restrict their legal points of reference to the quranic teachings and the prophetic example. Thus, the image that emerges of the judicial arrangements of the period shortly after the Islamic conquest echoes the fact that it took centuries—perhaps until the tenth century—for Muslim judicial practices to take on a more concrete and established shape (Coulson 1959: 20; Hallaq 2005: 2–3, 5). The process entailed not only the formation of fixed institutions and their legal references but also the arrangement of these institutions into a fixed hierarchical order.
Underlying and guiding the formation of Islamic judicial institutions was an eagerness to replace those institutions that were directly identified with the chaos of pre-Islamic times. Instead of the divisions and lack of leadership that typified the pre-Islamic era, Muslim jurists sought to bring about an order that would be founded on an Islamic outlook and characterized by such qualities as unity, administrative hierarchy, division of tasks, and centralization. At the core of this image we find the office of the qāḍī, a newly developed judicial institution that stood in opposition to that of its pre-Islamic antecedent, the ḥakam. Whereas the latter was the product of an era of ignorance and chaos, the office of the qāḍī was to serve as a manifestation of an ideal society.
It is commonly acknowledged that a central feature of the development of the Islamic judicial administration was the growing specialization, independence, and localization of qāḍīs around the eighth century (Schacht 1966: 26; Hallaq 2005: 97). As long as the Muslims remained within the boundaries of their garrison towns, the jurisdiction of the qāḍīs was restricted to them. Yet once Muslims began to expand their settlement beyond their military confinements, the needs associated with the regulation of life amidst a confessionally and socially mixed environment began to emerge, impacting dramatically on the growth and elaboration of the Islamic judicial office. Yet despite attempts by the state to control the territory notionally under its sovereignty, ‘inadequate means of communication and inadequate public finances’ prevented it from applying its authority in full.11 It is in this context that the Umayyad and even more so the Abbasid governments (661–750, 750–1258 respectively) sought to bring Muslim judicial officers under greater control through an intimate involvement in their appointment and by laying down clearer definitions of their qualifications and prerogatives (Hallaq 2005: 57–8). A principal record of these definitions from as early as the second century of Abbasid rule is the vast literature of adab al-qāḍī (the etiquette of judging), where religious scholars compiled a long series of professional instructions, pertaining not only to judicial conduct but also to matters of appointment, jurisdiction, procedural law, and directives for the issuing of documents (see Schneider 1990). The creation of the office of the ‘chief judge’ (qāḍī al-quḍāt), early in Abbasid rule, should be understood in this context as well. The chief judge, who sat in the capital of the caliphate, acted as the supreme judicial authority in the empire (von Grunebaum 1946: 163; Jany 2008: 156–8). By establishing this office, the caliphate was able to place provincial qāḍīs under stricter surveillance and supervision (Schacht 1966: 50; Hallaq 2005: 80); by the time of the legal reforms of Abbasid caliph Hārūn al-Rashīd, the procedure had become fully formalized (r. 786–809) (Bligh-Abramski 1992: 41, 56).
But the caliphate was not alone in trying to dominate the judicial apparatus—other sectors within the empire possessed similar ambitions. Very shortly after Ibn al-Muqaffaʿ composed his memorandum, the qāḍī of Baṣra, ʿUbayd Allāh al-ʿAnbarī (d. 784–5), wrote an epistle to the ʿAbbāsid caliph al-Mahdī (r. 775–85), in which he sought to place the office of the qāḍī under the direct authority of the jurisconsults (al-aʾimma al-fuqahāʾ). The relative chronological proximity between al-ʿAnbarī’s suggestions and those of Ibn al-Muqaffaʿ’s suggests that the two men shared similar concerns. Yet while al-ʿAnbarī sought to subordinate the judge to the spiritual authority of the jurisconsults, Ibn al-Muqaffaʿ appears to have favoured a caliphal authority that embodied both secular and religious authorities (Zaman 1997: 5–6; Tillier 2006: 152–4). One implication of the growing presence of religious scholars in the caliphal court and outside was a growing attempt on the part of these circles to achieve influence over the qāḍī’s office at the expense of local government officials, specifically, the vizier and governors (Kennedy 1981: 29; Bligh-Abramski 1992: 42; Hallaq 2005: 62, 79). Here, joint membership in a legal school (madhhab) and kinship served to consolidate political factionalism.12 It is under circumstances of mixed loyalties that qāḍīs found themselves at the centre of conflicting doctrinal affiliations, local rivalries between families, and court–periphery tensions. Qāḍīs were forced to choose between their allegiance to local urban elites and the caliphal court and its direct agents. By choosing to ally with the state, the qāḍī won its support and was officially able to secure his office. Yet such an allegiance came with a price, for not only the qāḍī’s independence but also his moral integrity were thereby compromised, at least in the eyes of certain scholarly circles (Rebstock 1999: 15; Jany 2008: 157; see also Wensinck 1922). While institutionally the qāḍī’s court may have been in allegiance with the caliphal centre or local forces, such independence should not be confused with that of the qāḍī’s legal profession. According to Hallaq, ‘judicial independence became the hallmark of Islamic legal tradition. As a rule, no authority could redirect cases or interfere in the process of adjudication.’13
The geʾonim, patriarchs, and caliphs all shared a common concern to enforce their supreme judicial authority over their respective communities within a vast territorial stretch. Thus, the geʾonim insisted upon the subordination of regional rabbinic courts, the patriarchs acted in the same way towards their ecclesiastical judicial agents, and likewise the caliphal court vis-à-vis the qāḍī courts. These efforts, however, were not restricted to particular institutions but were aimed, rather, at what appear to have been highly diverse social settings. These settings offered an institutional diversity that owed its origins to a much older set of arrangements that pre-dated the Islamic period, in which the individual could choose to settle disputes or validate contracts before a variety of judicial authorities (Simonsohn 2011: ch. 1).
The historical process that saw the expansion of Jewish communities in the western part of the Mediterranean entailed also the gradual formation of diverse judicial arrangements (Elon 1994: I. 48). Given the dispersion of Jewish communities under early Islamic rule, one cannot speak of rabbinic judicial institutions within a unified administrative framework of checks and balances. The documents found in the Cairo geniza describe regional communities of elaborate organizations, whose subordination to the gaonic centres was often voluntary.14 Whether directly subordinate to the gaonic court or not, these regional communities hosted a variety of judicial institutions, a result not only of contemporaneous circumstances but also of the institutional diversity that was already prescribed in early rabbinic sources.
One of the main regional institutions mentioned in gaonic responsa is the ‘court of high standing’ (bet din ḥashuv), over which presided regional scholars (Hurvitz 1995: 169). In most cases, these judges were graduates of either the gaonic academies or a local institution of learning (bet midrash), and as such were considered ordained (sing. samukh) judges (sing. dayyan) (Ben-Sasson 1996: 272, 279; Rustow 2008: 267). In Egypt, the supreme head of the Jewish community, attested as early as the late tenth century, was known by the title ‘head of the Jews’ (ra’īs al-Yahūd). The Egyptian head of the Jews was also considered the highest judicial authority. As such, he would extend his judicial authority over judges in local communities outside the old part of the Egyptian capital. Goitein referred to the juridical authority of the head of the Jews in Egypt as ‘the most conspicuous aspect of his office’. As the highest ranking judicial figure in his community, the ra’īs would not himself sit in judgement. At the beginning of the eleventh century, his judicial authority was still conditional on gaonic approval, though public consent was becoming increasingly important. There is some evidence that, in the capacity of his judicial office, the ra’īs, like the gaʾon, also responded to queries from members of the Jewish community in Egypt.15
While geniza letters often speak of a single officially recognized judge, designated ‘the court’ (bet din) (Goitein 1967–93: II. 316), judicial proceedings in fact normally took place before a tribunal of three judges (Assaf 1924: 46–8; Goitein 1967–93: II. 312; Elon 1994: I. 27). At the same time, formal ordination through one of the academies or a local institution of learning was not exclusive for the legitimizing of a judicial office. Indeed, according to Goitein, rabbinic judicial institutions were comprised largely of laymen (Goitein 1967–93: II. 314; see also Mann 1919–20: 364); and especially where legal specialists were unavailable, judicial roles were assumed by individuals whose legitimacy derived from their standing within their community and their learned background (Hurvitz 1995: 170). These men were often designated as the local elders (zeqenim). They were either local communal leaders or men of limited legal training.16 Though the elders were often prominent members of their congregations whose primary occupations were of a private nature, they are frequently referred to in the sources as a formal communal institution (Goitein 1967–93: II. 58–60). Unlike the communal head and expert judges, however, the elders assumed judicial responsibilities for ad hoc purposes (Ben-Sasson 1996: 329).
In addition to individuals, the collective authority of the congregation (qahal) appears to have possessed some judicial power as well (Nakhalon 2001: 4, 13, 15, 24–6, 83). This feature was characteristic of communities that followed the Palestinian tradition, though it may also have prevailed in other communities that simply lacked a formal judicial court. The duty of the congregation to decide on a legal question applied particularly to cases in which a member of the congregation felt that his rights had been violated in some manner. Under such circumstances, that member had the right to stop the public prayer and have his grievance redressed through a procedure called ‘calling upon the Jews’ (istighātha ilā al-Yahūd or ‘calling Israel for help’ (mustaghith ilā Yisrā’el) (Goitein 1967–93: II. 324; Ben-Sasson 2004: 182). Although the congregation did not assume a formal judicial role, its endorsement of the complaint would significantly increase its force, as the congregation would then press the local rabbinic court to follow up with a judicial resolution of the matter.17
Another indication of the operation of judicial bodies not appointed by the academies or involving legal specialists can be found in a responsum addressed to scholars from an institution of learning in Qayrawān, in which the eleventh-century gaʾon Rav Hayya (d. 1038) drew a distinction between courts that were under the direct authority of the Babylonian academies and those that were not (Harkavy 1887: 80, no. 180). The latter he described as ‘tribunals in Syria’ (ʿarka’ot she-be-Surya), echoing the reference in the Babylonian Talmud to a judicial forum over which presided laymen (hedyoṭot).18 Nonetheless, the geʾonim sought to retain a position of legal supremacy also in the case of these latter communities, despite their remoteness and lack of ordained judges (Libson 2003: 35). Well aware of the risk of forfeiting the relevance of their leadership, they attempted to avoid disputes with regional communities by exhibiting a lenient approach toward local custom.19
The Christian communities that came under Islamic rule in the second half of the seventh century were heirs to a judicial setting in which the ecclesiastical court was only one among a variety of judicial options. Modern scholars of late antiquity have convincingly demonstrated the rich and dynamic nature of judicial arrangements available to and sought by Christians under the late Roman and Sasanian Empires (Simonsohn 2011: ch. 1). Life under the two empires afforded the individual a great diversity of judicial institutions whose authority derived from a variety of sources, including imperial sanction, religious affiliation, social rank, and interpersonal relationships. Imperial magistrates, ecclesiastical officials, urban aristocrats, village headmen, local notables, and pious individuals on both sides of imperial boundaries were all in a position to oversee the implementation of legal commitments and the peaceful resolution of disputes.
This institutional diversity, though scarcely mentioned in the available sources from the early Islamic period, does not appear to have disappeared after the Islamic conquest and was evidently a source of great concern for the ecclesiastical leadership. While the above-mentioned canon of the East Syrian church from 676 exhorts Christians to settle their lawsuits only before those individuals designated by the church, it also betrays an ecclesiastical preoccupation with the judicial competition posed by unappointed individuals. The canon insists that ‘lawsuits and quarrels between Christians should be judged in the church; and should not be taken outside [it], as [in the manner of] those who are without a law; but rather they should be judged before judges who are appointed by the bishop…’. Believers are warned ‘not to take their affairs outside the church’ and reminded that ‘no one from amongst the believers may usurp, on his own authority, the judicial decisions over the believers, without the permission of the bishop and the consent of the community’ (Synodicon orientale, 484–5). The canon does not allow for more than speculation regarding the particular identity of those who ‘usurp’ these judicial prerogatives. In other instances, however, the church’s objection gave way to collaboration, as can be inferred from a decree issued by the East Syrian patriarch Ḥnanišōʿ II (d. 780), who sought to exploit the executive powers of a Christian layman in a legal dispute involving the inheritance of a widow (Sachau 1907–14: II. 27).
Despite their remoteness from East Syrian and West Syrian spheres of influence, cases of non-ecclesiastical figures of judicial capacity from Egypt and Palestine can further illuminate the phenomenon. Seventh-century papyri from Nessana speak of a group of figures, independent of the ecclesiastical administration, who in the framework of their office as village headmen fulfilled arbitration roles within their community (Stroumsa 2008: 60, 76). For early Islamic Egypt we find evidence indicating tensions between ecclesiastical and lay judicial authorities (Riedel 1900: 232, 271). Here the figure of the archon, a lay member of the Coptic church, appears as someone who fulfilled judicial tasks in collaboration with the church.20 In addition, Coptic papyri from the period shortly after the Muslim conquest attest to the endurance of pre-Islamic civil institutions, most notably that of the pagarchos (Schiller 1932: 9, 16–17; Steinwenter 1955: 53; Foss 1997: I. 2–12). The office of the latter was a secular judicial institution that was administered by a Christian official who was subject to the authority of the Muslim governor.
It appears, however, that for the most part the authority of Christian lay individuals who held judicial prerogatives was not welcomed by the churches. Canon 27 of a West Syrian synod of 794 rejects the intervention of non-ecclesiastical authorities: ‘None of the worldly ones (i.e. secular) has authority to speak among priests regarding ecclesiastical affairs. Therefore, if one has a lawsuit or a say (i.e. complaint), he should be brought before the bishop of his city’ (Vööbus (1975–6: vol. 376, 14, no. 27). Canon 4 of a West Syrian synod held in 817 supports the notion of Christian laymen serving in an extra-ecclesiastical judicial capacity. The canon attests to the presence of Christian dignitaries who would intervene on behalf of those condemned by the church. Such figures are mentioned in different West Syrian canons as ‘those who are outside the fold of the church’, ‘the dignitaries of the Christians’, or even ‘the Christians whose force is hard’ (Vööbus 1975–6: Vol. 376, 32–3).
It stands to reason that the Christians who lived under early Islamic rule were not very different from those depicted by Peter Brown in his famous essay on the holy man in the late Roman Empire.21 Here, too, judicial services were offered by figures of spiritual reputation who were not part of the ecclesiastical apparatus. As in earlier times, church authorities were unhappy with such trends. This is attested in a position attributed to the late seventh-century West Syrian bishop Jacob of Edessa, who refused to grant stylites judicial authority, claiming that ‘they have ascended the pillar not in order to become judges of the people and to administer the laws…[T]hey have not been called or appointed for this by God or by the chiefs of the priests’ (Vööbus 1975–6: Vol. 368, 228).
While Jacob’s position refers to the judicial authority of stylites, it may be indicative of a general attitude toward the temporal prerogatives of men whose authority did not derive from ecclesiastical appointment but rather from their holy position. Within this category we may also include monks. There is some indication that, in the period under discussion, monks also assumed administrative positions of a temporal nature. Thus, a canon issued in a West Syrian synod in 896 prohibits monks from assuming communal leadership posts in what appears to be small Christian communities in the northern parts of the Fertile Crescent (Vööbus 1975–6: Vol. 376, 64–5). While the canon makes no reference to judicial responsibilities, these should not be ruled out. Given this various data, and even while a full understanding of the components of Christian non-ecclesiastical judicial authority in the early Islamic period remains to be gathered, it seems safe to argue that the judicial setting was by no means monolithic. Instead, it offered a diverse institutional setting in which bishops, priests, holy men, and lay figures simultaneously fulfilled certain judicial roles.
As noted earlier, the formation of the Islamic judiciary and its various institutions was a gradual process driven by an amalgamation of political, intellectual, religious, social, and cultural factors. According to Joseph Schacht, the first caliphs neither applied nor indeed envisioned an ‘Islamic system of administration of Justice’; such a system would eventually develop in response to later challenges (Schacht 1966: 16). It seems safe to assert that somewhere around the late ninth–early tenth century, Muslims were able to settle their legal concerns before a variety of judicial institutions such as that of the arbiter, the qāḍī’s court, the governor’s office, the police (shurṭā), the board of grievances (maẓālim), and the office of the inspection of the markets (ḥisba), to list only the most notable offices. This institutional multiplicity should be considered alongside another important feature of the Islamic state, namely its inability to serve as the sole patron of judicial institutions. Both multiplicity and the lack of state hegemony were manifestations of a constant tension between an Islamic political ideology and traditional practices, and the attendant changes in the balance of power between Islamic central forces and local ones. While Islamic law was, formally, the sole point of reference in the administration of justice, in practice, the state had a limited ability to legislate or to insist upon the uniform implementation of its laws (von Grunebaum 1946: 1). Instead, it sponsored or acted alongside the legal enterprises of jurists and provided the infrastructure for the implementation of the law. Although the sharīʿa was the only formally recognized legal order, its exploitation by various social groups introduced a diverse legal setting, which in turn facilitated a notable institutional variety.
The Islamic judicial structure was organized around a number of well-defined offices. At the top of this structure stood the caliph, the formal successor of Muhammad, who according to certain caliphal circles in the eighth and ninth centuries embodied both temporal and spiritual powers. The judicial office of the ‘commander of the faithful’ stemmed from the concept that Islam is ‘the community of Allah’, the umma, whose first judicial authority was Muhammad.22 Well into Umayyad rule (661–750), during which the ancient Arabian practice of arbitration continued to play a central role alongside the newly introduced office of the qāḍī (Schacht 1966: 24), the Muslims began to adopt one of the main principles of the judicial organizations of their Roman and Sasanian predecessors: a hierarchical organization in which the head of state acts as the highest judicial figure and delegates his authority to regional governors, who in turn extend their authority to local magistrates.23
Under the Abbasids, the judiciary was gradually broken down into separate jurisdictions, leaving the qāḍī court in charge only of questions of religious law (Bligh-Abramski 1992: 58). Administratively, local qāḍīs acted within a judicial hierarchy, passing on judicial prerogatives to a lower class of judges (nuwwāb) and entrusting them with full or partial jurisdiction over small towns (Johansen 1999: 86–7). Two (or more) qāḍīs could serve within the same geographical jurisdiction, with each addressing distinct legal matters, such as penal or family law (Hallaq 2005: 80). This specialization is thought to have reached its high point in the ninth century. Yet the qāḍī did not operate alone. Not only did the institution of the pre-Islamic ḥakam continue to constitute a judicial option, but evidence also indicates that other figures, like the head of the police (shurṭā) and tribal officials (at least during the first century after the conquest) continued to fulfil judicial roles as well (Goitein 1967–93: II. 371; Bligh-Abramski 1992: 46–9).
An important aspect of Abbasid policy was the creation of a board of grievances, or office for the investigation of complaints, known as the maẓālim court.24 Initially headed by the chief administrator of the caliphal court, the vizier, this judicial institution was originally established to enable litigants to lodge complaints against the government, including miscarriage of justice claims, particularly against qāḍīs (Nielsen 1985: 4; Hallaq 2005: 99). With time, however, the maẓālim became another form of tribunal, administered by an official who bore the title ‘the overseer of grievances’ (nāẓir al-maẓālim or ṣāḥib al-maẓālim), and as such, it handled matters of a secular nature, like property and commercial affairs.25 Unlike the qāḍī, who had to rely on the cooperation of the police for the enforcement of his decisions, the court of the maẓālim acted on behalf of the ruler and thus had access to means of enforcement (Rebstock 1999: 14). Despite the nature of legal affairs under its jurisdiction, the maẓālim’s classification as a secular judicial institution has rightly been described as misleading, since not only was the caliph’s justice considered religious, but ‘the dialectical relationship between the regular judgeship and maẓālim reflects as much their complementarities as their interchangeability’ (Tillier 2009: 59; see also Coulson 1964: 130; Schacht 1966: 51).
A third judicial office that was introduced by the Abbasids around the ninth century and held civil and criminal judicial prerogatives is the ‘inspection of the markets’ (ḥisba) (Schacht 1966: 25; Silverstein and Sadan 2004: 344). The establishment of this office was a further blow to the qāḍī’s jurisdiction. In the narrow sense, the role of the inspector (muḥtasib) was to oversee commercial activities and address disputes that arose in the market, but in practice, he was entrusted with the moral supervision of the community and hence claimed judicial powers that had previously been reserved for the qāḍī (von Grunebaum 1946: 165). It should be noted, however, that the Islamic office of the muḥtasib was likely introduced already prior to the ninth century under a slightly different heading (ṣāḥib al-sūq rather than the later attested muḥtasib), and should therefore be considered in relation to the pre-Islamic institution of the market overseer, attested in Roman and rabbinic legal traditions (Schacht 1966: 25; Crone 1987b: 107–8).
With the establishment of the maẓālim and the ḥisba, the qāḍī’s jurisdiction was gradually limited to matters pertaining to Islamic law, the sharīʿa (Schacht 1966: 64; Bligh-Abramski 1992: 58). As a result, modern scholars hold the view that qāḍīs were increasingly drawn from a background of religious learning with a specialization in religious law. While the qāḍī may have received his formal appointment from the caliphal court, in practice, his allegiance to local scholars grew stronger and the legitimacy of his office relied heavily on their support (Hallaq 2005: 79).
The Jewish, Christian, and Muslim communities at the centre of this discussion operated simultaneously on religious and social levels, rendering their religious affiliations and social memberships inseparable, at least from the standpoint of religious elites.26 Accordingly, social aggregations were carved along religious lines and organized in accordance with a set of rules whose primary source and point of reference was scripture. These rules provided the most basic principles of the law and the legal platform on which future elaborations would be made (von Grunebaum 1946: 143; Hallaq 2005: 31; Walzer et al. 2000: xiii, xxxix). With time, confessional laws expanded to such an extent that they encompassed every aspect of life within the community, thereby creating legally self-contained theocracies.27 Consequently, the practical application of these legal orders by means of a judicial apparatus was crucial, not only as the most solemn expression of religious ideals but also as a conspicuous marker of uncompromising socio-religious sovereignty.
For the modern observer, the lack of practical means of enforcement of the sort possessed by modern-state judicial institutions may suggest the feeble state of the confessional administrations surveyed above. Yet public consent, on which was predicated the implementation of rabbinic, ecclesiastical, and sharʿi justice, functioned in their case as a significant source of power. In principle, those who chose to appear before a Jewish judge agreed in advance to accept his ruling and its application (Goitein 1967–93: II. 316). The most effective and often only sanction available to Jewish judicial institutions was the proclamation of ostracism and excommunication (Mann 1919–20: 335–6, 341; Assaf 1922: 89; Ben-Sasson 1996: 302–3; Frenkel 2006: 169–73). Given the social nature of this penalty, its effectiveness depended not only on the cooperation of the culprit himself but on the voluntary adherence of the community as a whole. Indeed, the records suggest that also in the case of corporal punishments, particularly imprisonment, flagellation, and the shaving of the culprit’s head and beard for certain offences, the meting out of such measures depended largely on the cooperation of the public.28 Public consent was also a prerequisite for the implementation of ecclesiastical sentences. Despite what appears to have been a highly institutionalized set of arrangements, ecclesiastical judges relied mostly on excommunicating measures to enforce their decisions. Accordingly, outside the formalities of the ecclesiastical hierarchy, these judges were almost entirely dependent on the goodwill of their community for the implementation of their verdicts (Selb 1981–9: 214; Villagomez and Morony 1999: 314–15; for Egypt, see Foss 1997: I. 267). Like his non-Muslim counterparts, if to a lesser extent, the qāḍī, too, despite his identification with the ruling majority and formal affiliation to the state, seems often to have lacked direct means of enforcement, relying instead on the collaboration of the local police (von Grunebaum 1946: 165).
Indeed, the reliance of judicial decisions on public consent suggests an important bond between justice and community, in which the latter was committed to a social contract that in turn stemmed from a principle commitment to God, his covenant, and his temporal agents. Thus, any breach of communal jurisdictions was perceived as a blunt transgression of communal boundaries and a betrayal of God (Simonsohn 2011, chs 4, 6). The position of the ninth-century East Syrian patriarch Timothy I toward those ‘Christians, men or women, who appear before outside judges’ was articulated in terms of no less than an act of idolatry, bearing harsh consequences: ‘And if they go to judges outside, how can they be Christian? For Paul has said to them: You cannot partake of the table of the Lord (1 Cor. 10: 21) and in another table. And you cannot drink the cup of the Lord and the cup of Beliʿal’ (Sachau 1907–14: II. 67). Likewise, geniza documents record the annual practice of excommunicating Jews who appeared before Muslim judges on the seventh day of the Festival of Tabernacles on the Mount of Olives (Gil 1992: 167). Such attitudes reflect the severity attributed to the phenomenon of extra-confessional litigation and, perhaps more importantly, the decisive role played by judicial institutions in sustaining the interplay between the religious and social aspects of communal membership.
It is against the backdrop of this social paradigm and in light of the social and institutional diversity discussed above that we should interpret the endeavours of confessional leaders of the three religions to centralize their judicial administrations. The formal position of the geʾonim, patriarchs, and caliphs as the supreme judicial authorities of their respective communities was of utmost importance for sustaining their de facto power. Judicial authority afforded these leaders crucial means with which to fulfil their supervisory and coordinating functions. Yet such prerogatives exceeded mere technicalities, as they also gave these leaders the capacity to implement their understanding of the law and to shape public opinion in a manner that legitimizes their leadership. The growing independence of local qāḍīs, along with the growing prominence of Islamic scholarly circles, posed a challenge to the caliphal office, rendering its weight in the provinces nominal in most cases (Coulson 1956: 216). Thus, calls for reform, like that of Ibn al-Muqaffaʿ, were designed specifically to counter these trends toward an increasingly decentralized judicial administration (Zaman 1997: 4–6). Similar concerns over decentralization are reflected in Išōʿbokt’s depiction of a reality in which Christians adhere to a diversity of legal traditions, and in the tenth-century Epistle of Nathan the Babylonian portraying gaonic jurisdictions in a historical moment of a growing independence on the part of regional Jewish communities. Here, judicial agents, namely ordained Rabbanite scholars, Christian clergymen, and Muslim judges (qāḍī, nāẓir al-maẓālim, muḥtasib), provided the infrastructure. Confessional judges acted as local representatives of central authorities and implementers of their laws, thereby granting the various centres the legitimacy and the social control they sought to attain.29
1 For general surveys on the history of Jewish communities under early Muslim rule, see Mann 1920–2; Goitein 1967–93; Gil 1992; Ben-Sasson 1996; Gil 2004; Bareket 1999.
2 For general surveys on the history of Christian communities under early Muslim rule, see Morony 1984; Dagron et al. 1993; Ducellier 1996; Eddé et al. 1997; Baum and Winkler 2003.
3 A very useful survey of Islamic history in the early period is Berkey 2003.
4 On the episcopalis audientia, see Vismara 1937; The Theodosian Code, 1.27.1.; Selb 1967; Ziegler 1971: 167–74; Lamoreaux 1995; Harries 1999: 191–211; Rapp 2005: 242–52; Lenski 2001: 83–92.
5 Tyan 1938: I. 68; Schacht 1966: 10; Bravmann 1972: 175; Crone and Hinds 1986: 48; Hallaq 2005: 4–5, 46–51.
6 Macomber 1968: 181; see for example in the introduction to the electing synod of the East Syrian patriarch Ḥnanišōʿ II (d. 780) in 775, in Synodicon orientale, 515.
7 Putman 1975: 31; Simonsohn 2011: 11 and the examples in ch. 5.
8 Rémondon 1972: 262; Wipszycka 1972: 52–4; Walmsley 1992: 254; Figueras 1994; Schick 1995: 85ff.; Foss 1997: 192, 198; Stroumsa 2008: 55–60, 76.
9 Kaufhold 1971: 24–2; Kaufhold 1984: 91, 94; Rose 1982: 160, 165; Crone 1987b: 12; Selb and Kaufhold 2005: 51–64. Similar efforts were made in the Armenian church in the second half of the seventh century; see Mardirossian 2004: 400.
10 Van Ess 1991–7: II. 124; Crone 1980b: 25–33; Carver 1996: 208; Wheatley 2001: 10.
11 Von Grunebaum 1946: 1; see also Coulson, 1956: 216; Schacht 1966: 49; Cahen 1970: 530.
12 Coulson 1956: 216; Coulson 1964: 87; Kennedy 1981: 29; Rebstock 1999: 14–15; Bulliet 1972: 62–3; Berkey 2003: 203, 206; Tillier 2011.
13 Hallaq 2005: 83; on Islamic judicial review, see Powers 1992, esp. p. 338.
14 Goitein 1967–93: II. 5ff.; Ben-Sasson 1996: 401ff.; Ben-Sasson 2004: 189.
15 On the office of head of the Jews in Egypt, see Goitein 1967–93: II. 23ff.; Cohen 1980; Sela 1994. In North Africa, see Ben-Sasson 1996: 347ff.; on the judicial prerogatives of this office, see Goitein 1967–93: II. 33–4; on the ra’īs as a halakhic authority responding to legal queries, see Bareket 1999: 124–5.
16 On this, see a responsum written by Rav Hayya (d. 1038) in Lewin 1941: 209–10 (response no. 490).
17 Assaf 1942 108; Ben-Sasson 1996: 332, n. 233; Gil 1992: doc. 217.
18 BT Sanhedrin 23a; on lay judges in geniza documents, see Goitein 1967–93: II. 322; see also Elon 1994: I. 27; Hurvitz 1995: 172.
19 Nakhalon 2001: 13, 24–6; Libson 2003: 38.
20 Evetts 1904–14: III. 9; ‘Archon’, The Coptic Encyclopedia.
22 Von Grunebaum 1946: 142; Goitein 1968: 131; Crone and Hinds 1986: 44–5; Hallaq 2005: 43.
23 Schacht 1966: 24–5, 50; Kennedy 1981: 35; Morony 1984: 37–41; Bligh-Abramski 1992: 43, 58; Jany 2008: 149; Foss 1997: Part I.2.
24 Cf. Schacht 1966: 51; Morony 1984: 86; according to Schacht and Morony, the office was initiated already under the Marwanids 684–750.
25 Ziadeh 1960: 65; Coulson 1964: 128–9; Schacht 1966: 51; Nielsen 1985: 4–6; Powers 1992: 316; for a summary of the maẓālim’s jurisdiction and method of practice, see Nielsen 1985: 17–25.
26 Von Grunebaum 1946: 2, 6, 145; Baer 1950: 14; Goitein 1967–93: I. 262, II. 397; Rose 1982: 159, 161; Elon 1994: I. 6.
27 Khadduri 1955: 25; von Grunebaum 1946: 144–5; Coulson 1959: 13; Schacht 1966: 1, 48; Goitein 1967–93: II. 311; Putman 1975: 61; Selb 1981–9: I. 43; Rose 1982: 163–5; Elon 1994: I. xlix; Mathisen 2001: 1; Nakhalon 2001: 13, 15.
28 Mann 1919–20: 344–5; Assaf 1922: 16; Aptowitzer 1937. Flogging and disciplinary flogging: Goitein 1967–93: I. 259; Ben-Sasson 1996: 340.
29 Putman 1975: 32, 34; Nielsen 1985: 1; Sklare 1996: 81; Brody 1998: 59; Rebstock 1999: 14.