Maimonides and the Merchants. Mark R. Cohen

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СКАЧАТЬ discusses codification and legal change. I introduce two legal scholars who have raised the question of the relationship between the two. One of them is Maimonidean scholar, Gerald Blidstein; the other is Alan Watson, scholar of legal history and theory. Periodically in the book, I will return to these scholars, linking their views to the discussion at hand. In Chapter 1, I also review one of Maimonides’ most discussed taqqanot—a reform in the synagogue service—to demonstrate how he took daily life into account in his legal decision–making in the Code, even in the realm of ritual.

      Chapter 2, “Halakha and the Custom of the Merchants,” makes the case that the Babylonian Geonim and Maimonides were attuned to the ways of the Islamicate marketplace. The Geonim called this (in Arabic) ḥukm al-tujjār, “the custom of the merchants.” I show how they accommodated merchant practice and other exigencies of the new mercantile economy with taqqanot, through their responsa, or by adopting new commercial practices, employing the legal maxim that custom can override the halakha. I include a discussion of the rabbinic concept of the “custom of the mariners,” illustrating the importance of the custom of the surrounding society for Jews, even in Talmudic times.

      In contrast to the Geonim, Maimonides responded to the new commercial economy through codification. I establish the place of the custom of the merchants in the Code by closely analyzing one halakha from his Hilkhot sheluḥin ve-shutafin, “Laws of Agents and Partners.” Unlike the Geonim, Maimonides, who elsewhere freely uses the term “custom of the mariners,” does not employ the actual phrase “custom of the merchants,” a translation of the Gaonic ḥukm al-tujjār. Rather, writing in Hebrew and using Mishnaic language, he chooses a traditional rabbinic phrase, minhag ha-medina, “local custom,” to clothe the new reality in ancient garb.

      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 СКАЧАТЬ