Chapter 3, “Updating the Halakha,” presents several examples from the Code (charity, Sabbath observance, marital relations, and others), where Maimonides incorporates the element of commerce into a ritual law of the Talmud where it is absent, in order to “update” the halakha to fit the mercantile economy.
Chapter 4, “Partnership,” discusses forms of commercial collaboration popular among Jewish merchants of the Geniza period. These include institutions of partnership recognized by the Talmud. A non-Talmudic form of partnership that seems to be an Islamic precursor of the later European commenda was acknowledged by Islamic law and practiced by Muslims and occasionally by Jews. Especially important in this chapter is the section on partnership with a Muslim, which responds to the reality of interfaith business relations in the Geniza world.
Chapters 5 and 6 go together. Chapter 5, “Commercial Agency (Ṣuḥba),” describes a completely new institution of commercial collaboration practiced by Jews. Actually a form of commercial agency, it was first identified by S. D. Goitein and called “formal friendship”; I refer to it as ṣuḥba-agency. Geniza letters reveal that ṣuḥba-agency was twice as popular a means of doing business as all other forms of long-distance trade combined. In ṣuḥba-agency, merchants did not invest together or share profits and losses, as in a partnership. Rather, they compensated one another by doing reciprocal business favors. This informal procedure mimicked a form of commercial agency called ibḍā‘, practiced by Muslims and enshrined in Islamic law. Arabic letters written by Muslim traders confirm that Jewish traders followed the custom of the Muslim merchants. Because it was unknown to the Talmud, ṣuḥba-agency lacked a means of enforcement in Jewish courts, a defect that Maimonides, preceded by Saadya Gaon in the tenth century, sought to remedy in his Code (here in Chapter 6, “Ṣuḥba-Agency in the Code”). In Chapters 5 and 6, I also discuss the controversial theory of Stanford economist Avner Greif concerning the special way in which Geniza merchants enforced agency relations. Chapter 7 is devoted to an institution of agency that the Talmud recognizes—proxy legal agency, equivalent to our power of attorney. Here we find Maimonides staunchly rejecting a Gaonic reform that had been designed to accommodate the transition from Jewish landownership in Iraq to commerce, following the Islamic conquest. However, as I shall show, Maimonides was not out of step with an economic reality that the Geonim had attempted to address. Rather, he was conscious of facts on the ground in Egypt and in his native Andalusia that rendered the Gaonic “fiction” unnecessary.
Chapter 8 discusses Maimonides’ ruling on buying and selling, the cardinal components of exchange in any commercial society and a constant form of activity in the daily lives of Geniza merchants. Maimonides stridently opposes selling or acquiring property by any other means than the ones prescribed by the Talmud. I hypothesize that his purpose was to discourage Jewish traders from employing the Islamic method of “offer and acceptance.” At the end of the chapter, I explicate a halakha about writing contracts that exemplifies Maimonides’ effort to adapt the halakha to accommodate the technological innovation represented by the production and use of paper in the Islamic world, replacing papyrus or other writing surfaces assumed by the Talmud.
In Chapter 9, I review the question of the status of Jews (and non-Muslims in general) in Islamic courts, both the position of Islamic law on the matter and the evidence of Jewish (and Christian) recourse to Islamic courts. This was a major and abiding problem for Jewish leadership (as for Christian religious elites). I offer my opinion that much of Maimonides’ updating and reform of Jewish commercial law in the Code can be explained by his concern over this challenge to Jewish communal autonomy. I suggest that he wanted to provide Jewish merchants with an alternative and comparable Jewish equivalent to the Islamic legal system.
The Conclusion to the book discusses the question of originality in Maimonides’ legal thought, a subject that the book raises from a new angle. In closing, I compare my approach to legal change in Maimonides’ Code with Haym Soloveitchik’s approach to law and society in medieval Ashkenazic Europe.
Chapter 1
Codification and Legal Change
1.1 Codification and Legal Change: Two Views
In “Where Do We Stand in the Study of Maimonidean Halakhah?,” published over a quarter of a century ago, the eminent Maimonidean scholar Gerald Blidstein wrote: “Though law is a notoriously conservative aspect of culture, legal systems do reflect changing economic and social realities.” With specific reference to the Code, he adds: “The economy of the medieval East was, in certain ways, a continuation of that dominant in Talmudic times; but certain realities had of course changed. The Islamic East was urban and mercantile.” He then asks the intriguing question: “Does Maimonidean law reflect this shift? Or does it—the responsa aside—remain firmly fixed within the Talmudic reality, both in its resources, rulings, and attitudes? Do we find extrapolations from Talmudic law to the new situation—or perhaps more than that, or less?”1 Blidstein raises here, but does not answer, the question of legal change in Maimonides’ treatment of commercial law, the question that animates the present book.
The distinguished legal historian Alan Watson addresses legal innovation in regard to Roman and English law in his classic Society and Legal Change. He points to the inertia of private law, its resistance to change—what Blidstein terms its “notoriously conservative aspect.” Watson is even more categorical in his negative assessment of the capacity of law to adapt to changes in society. “The argument of this book,” he writes, “is that in the West, rules of private law have been and are in large measure out of step with the needs and desires of society and even of its ruling elite; to an extent which renders implausible the existing theories of legal development and of the relationship between law and society.”2 He asks, however, in an important aside, whether “codification,” especially original codes, can “remove the significant divergence between law and society and … abolish legal scaffolding.” By “legal scaffolding,” he means an encrustation of legal rules meant to modify the existing laws but that, in fact, makes them more complex than necessary.3
In a later iteration of his thesis, Watson registers an exception to the rule of inertia in private law. Mercantile custom, he writes, is particularly susceptible to what he calls “transplant bias,” referring to his book Legal Transplants: An Approach to Comparative Law.4 He explains: “What is borrowed is international mercantile law based on what merchants do. To a very large degree, this law is received because the merchants’ business would otherwise be directly disadvantaged.” It is received, moreover, “without the merchants’ having much knowledge of law.”5 Applying Watson’s formulation to the present case, we may imagine a process whereby Jewish merchants in the Islamic world adopted mercantile practices current in the marketplace without necessarily knowing the Islamic law that supported those practices. They would, however, have been exposed to the legal basis for these customs when, as commonly happened, they turned to Islamic courts to draw up and register contracts or when they appeared before a qāḍī to adjudicate disputes. How a jurist like Maimonides confronted, from a traditional Jewish perspective, these new norms of the marketplace—and how he accommodated them in his Code—will occupy us throughout this book.
1.1.1 Codification