Court Shopping in Medieval Times
Nowadays, our legal system is a clear and well organized system with a legal court that follows the one law each country maintains. A few hundred years ago, this was a different case, at least in the Fatimid Caliphate, c. 969-1171. During that time, Muslims and Jews lived together under Islamic control, but each had it’s own legal system.
This special situation was reason for me to dig a bit deeper in order to find out how the Jews maintained their legal position under the reign of the Fatimid Caliphate. I found out that even though the Jews had their own legal system and their own legal court, many of them sought recourse at the Islamic court. In order to find out why they would do such a thing, the central question to my essay was: what was the reason for Jews to seek recourse at the Islamic court instead of their own and how did this recourse influence the autonomy of the Jewish community?
This special situation was reason for me to dig a bit deeper in order to find out how the Jews maintained their legal position under the reign of the Fatimid Caliphate. I found out that even though the Jews had their own legal system and their own legal court, many of them sought recourse at the Islamic court. In order to find out why they would do such a thing, the central question to my essay was: what was the reason for Jews to seek recourse at the Islamic court instead of their own and how did this recourse influence the autonomy of the Jewish community?
If we look a bit closer at the Jewish community under Islamic reign, we discover it’s quite particular position. With the approval of the Islamic government, the Jews established their own legal system so they could live according their biblical laws. This was very important to them, and it formed the fundamental basis of the autonomy of the Jewish community.
There were, however, some terms and conditions the Jews should adhere to. For example, any case involving a Muslim fell under the legal authority of the Islamic court. Also, the execution of severe punishments was the ‘privilege’ of the Islamic court. In these and other ways, the Islamic government tried to encourage Jews to proceed at the Islamic court. As a result of this encouragement, more and more Jews did actually proceed at the Islamic court. |
To find out why, I did a source research on three sources I found at the massive pile of primary sources from the Cairo Genizah. Before sharing with you the results of my research, I would like to take you back to the discovery of this massive pile of genizah documents and tell you a little bit more about the phenomenon genizah in general.
In 1897, professor Schechter was studying a bundle of documents that was brought to him. Amazed by the discovery it was an original and very old document, he rushed back to Cairo, Egypt to find out if there were more documents to discover. And yes, there were more to discover, many more! Over 100.000 fragments were found in the genizah of the Ben Ezra synagogue in Fustat, Old Cairo. Over time, the documents are dated by scholars, dating from the 9th century to the 19th century. |
The sources I used for my research come from this beautiful pile of Cairo Genizah documents. One being a legal witness statement, one being a letter and one being a legal document. All three documents involve a legal case proceeded before the Islamic court. The motivations for the parties seeking recourse at the Islamic court have to do with the differences in Jewish and Islamic law and the attempt to gain as much profit as possible.
For example, one of the documents involves a case in which a son sews his mother because of the inheritance the mother received from her late husband. Apparently, the son did not agree on this and tried to gain part or all of this inheritance. He went to the Jewish court, because according the Jewish law, women were not entitled to inherit anything, accept when this was explicitly indicated in the marriage agreement. This was probably the case in this inheritance case. The son was not so lucky, because the Jewish court did not agree with his accusations.
Therefore, he went to the Islamic court because according to Islamic law, the son could receive a share of the inheritance. Women were worth only half a man, which meant they could inherit no more than half of the possessions of a man. In this particular case, the son would inherit two third and the mother one third (the son would inherit twice the share of his mother, because a woman was worth half a man). Surprisingly, the son is sent back to the Jewish court, but he disappears. Unfortunately, we don’t know how this story has ended. |
Because of the fact that more and more Jews went to the Islamic court instead of their own Jewish court, Jewish law became more flexible and adapted slightly to the changing circumstances. Especially in economic matters, the Jewish court became more flexible in allowing Jews to proceed at the Islamic court. But they also adapted the halakha, the old biblical laws which evolved through time to regulate the daily Jewish life.
Concluding, I would say that even though the Jewish community officially kept its autonomy, it also lost some of it, because of the adaption to the changing circumstances, the flexibility and the changing old biblical laws. All because of the fear of losing control of the Jewish court proceedings and losing autonomy. This fear could exist because more and more Jews went to a non-Jewish court, for reasons that had mostly to do with the aspiration to get the most profit from the legal procedure.
Concluding, I would say that even though the Jewish community officially kept its autonomy, it also lost some of it, because of the adaption to the changing circumstances, the flexibility and the changing old biblical laws. All because of the fear of losing control of the Jewish court proceedings and losing autonomy. This fear could exist because more and more Jews went to a non-Jewish court, for reasons that had mostly to do with the aspiration to get the most profit from the legal procedure.
Social Network Theory In my research, the social network theory has not been the central approach. Though I do think that with the social network theory, one could do further research on this subject. The social network theory is all about the exchange of information, goods and knowledge, about the flow of all of these things and more. Therefore, if we look at the adaption of the Jewish law to the Islamic law, one could do a research in, for example, the exchange of customs between both laws and see in how far both laws influenced each other. |
Suggestions for further reading
E. Bareket. Fustat on the Nile: the Jewish elite in medieval Egypt. Leiden: Brill, 1999.
S. D. Goitein, A Mediterranean society: the Jewish communities of the Arab world as portrayed in the documents of the Cairo Geniza, vol. II and III. Berkeley: University of California Press, 1971-1978.
R. Gottheil and W. H. Worrell. Fragments from the Cairo Genizah in the Freer Collection. New York: The Macmillan Company, 1927.
G. Libson. Jewish and Islamic Law. A comparative study of Custom During the Geonic Period. Cambridge: Harvard University Press, 2003.
J. M. Marglin. “Jews in Shari’a: A Family Dispute from the Cairo Geniza” in Christians and Jews in Muslim Societies: Jews, Christians and Muslims in Medieval Early Modern Times: A Festschrift in Honor of Mark R. Cohen, ed. M. R. Cohen, A. E. Franklin. Leiden: Koninklijke Brill, 2014.
E. Bareket. Fustat on the Nile: the Jewish elite in medieval Egypt. Leiden: Brill, 1999.
S. D. Goitein, A Mediterranean society: the Jewish communities of the Arab world as portrayed in the documents of the Cairo Geniza, vol. II and III. Berkeley: University of California Press, 1971-1978.
R. Gottheil and W. H. Worrell. Fragments from the Cairo Genizah in the Freer Collection. New York: The Macmillan Company, 1927.
G. Libson. Jewish and Islamic Law. A comparative study of Custom During the Geonic Period. Cambridge: Harvard University Press, 2003.
J. M. Marglin. “Jews in Shari’a: A Family Dispute from the Cairo Geniza” in Christians and Jews in Muslim Societies: Jews, Christians and Muslims in Medieval Early Modern Times: A Festschrift in Honor of Mark R. Cohen, ed. M. R. Cohen, A. E. Franklin. Leiden: Koninklijke Brill, 2014.
I hope you enjoyed reading! J. N. K.
Images, top down
Image 1: Louis. C. Tiffany. On the Way between Old and New Cairo, Citadel Mosque of Mohammed Ali, and Tombs of the Mamelukes, Wikipedia.
Image 2: Old Cairo. Flickr - Photo Sharing.
Image 3: Solomon Schechter at work in Cambridge University Library, 1898. Wikipedia.
Image 4: An old palace, Cairo. Wikipedia.
Image 5: A page from the Cairo Genizah, part of which is written in the Judeo-Arabic language. Wikipedia.
Image 6: Cairo Geniza - Obadiah Scroll, Document VIII. Wikipedia
Image 7: Fragment of the Cairo Geniza. Wikimedia.
Image 8: Old Cairo (1878). Wikipedia.
Image 1: Louis. C. Tiffany. On the Way between Old and New Cairo, Citadel Mosque of Mohammed Ali, and Tombs of the Mamelukes, Wikipedia.
Image 2: Old Cairo. Flickr - Photo Sharing.
Image 3: Solomon Schechter at work in Cambridge University Library, 1898. Wikipedia.
Image 4: An old palace, Cairo. Wikipedia.
Image 5: A page from the Cairo Genizah, part of which is written in the Judeo-Arabic language. Wikipedia.
Image 6: Cairo Geniza - Obadiah Scroll, Document VIII. Wikipedia
Image 7: Fragment of the Cairo Geniza. Wikimedia.
Image 8: Old Cairo (1878). Wikipedia.