A Common Justice. Uriel I. Simonsohn

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СКАЧАТЬ on a patron-client relationship, through which both parties were able to offer each other some form of social benefit.

      We are dealing here with a society in which such individuals as ‘Abdallāh ibn al-Muqaffa‘ (d. ca. 756) and Ya‘aqūb ibn Killis (d. 991) were able to exploit their mixed affiliation fully, as they were born in one cultural environment, settled in another, converted to Islam, and placed their professional skills at the disposal of their Muslim sovereigns. Contrary to the notion of discrete units, the image that emerges from the social landscape of the medieval Near East is one of constantly evolving partnerships, friendships, collegial ties, and even familial bonds among members of different religions. In this respect, the evidence found in the Cairo Geniza is of utmost importance, as it clearly attests not only to the nature and character of social contracts but also to the atmosphere of freedom that had made them possible.³⁴ The use of the term “contracts” is not accidental in this context: it derives from the individualist and reciprocal character of the social bonds forged among members of these societies, from an “image of bargaining,” as Lawrence Rosen described it, in which “each attachment, each personal quality, each basis for affiliation became a resource to be utilized in fabricating a set of allies and dependents.”³⁵

      Thus, terms such as ḥaqq (right, duty, claim) in present-day Moroccan society and ni‘ma (benefit) in that of tenth-century Būyid Iraq were used to denote the reciprocal character of the personal contract drawn up by two individuals.³⁶ Rather than seeking the corporate, we should be in search of the individual and personal. It was through the latter that individuals became committed to a variety of other individuals in a “series of interpersonal ties, freely negotiated.”³⁷ Under these circumstances, it is misleading to attribute to confessional communities a monopoly over people’s commitments and loyalties.³⁸

      However salient its role may have been in the process of constructing social obligations, personalism cannot alone explain the murkiness of confessional boundaries. Late in the seventh century, the East Syrian monk John bar Penkāyē commented in his apocalyptic treatise that “there was no distinction between pagan and Christian, [and] the believer was not known from a Jew.”³⁹ Though it is offered in the context of an apocalyptic composition decrying the lack of confessional discipline, John’s comment may also suggest the continuity of a shared Near Eastern culture, in which it was often impossible for members of one religious affiliation to be distinguished, in their mundane practices, from another.⁴⁰

      Whether Christian, Jewish, or Muslim, members of discrete confessional affiliations appear to have shared a cultural orientation that may only have intensified as Arabic became the region’s lingua franca.⁴¹ It is in this context of social embeddedness that those who sought to enforce confessional divisions—namely, the religious elites—had to come up with a discourse of resistance.⁴² As such, this discourse was intended to evoke in its audience emotions of fear and rage toward the other, the outsider—and also to advance, through a “symbolic separatism,” the notion of a religious community and its place in the world.⁴³

      Thus, from the outset of the Arab conquest, we find this discourse of resistance in a rich variety of literary genres, including hymns, liturgy, sermons, chronicles, hagiographies, martyrologies, and apocalyptic narratives.⁴⁴ These works reflect the efforts of Christian and Jewish religious leaders alike to convey a message of opposition toward inter confessional contacts by depicting the Arabs as a divine punishment: immoral, transient, extractors of burdensome tribute, and ruthless persecutors. Unsurprisingly, this message corresponded to the very ideal of religious autonomy that was to provide religious elites with the legal and practical means to enforce their separatist aspirations.⁴⁵ It was meant to provide a solution to the challenge of maintaining social-confessional cohesiveness in the context of Islamic permissiveness.⁴⁶ It is against this background that we ought to view and interpret, on the one hand, the insistence of dhimmī leaders on judicial exclusiveness and, on the other, the incompleteness of its implementation.

      The principle of legal autonomy, propounded by Muslims jurists and cherished by non-Muslim leaders, has often been presented in modern scholarship as a sign of dhimmī autonomy. Accordingly, the recurring violation of this principle, as reflected in the frequent non-Muslim recourse to Islamic courts, has been interpreted as a breakdown of the system—hence the harsh response of non-Muslim leaders. This interpretation, however, does not account for a broader social context in which, despite the formal segregation, members of one confession were able to interact with those of another without renouncing their religious convictions.

      It is therefore of little surprise that recent calls for revisions in modern interpretations insist upon a greater emphasis on local context instead of the stringing together of isolated episodes into general phenomena.⁴⁷ In overemphasizing a “homogenous ‘we’ ranged against a homogenous ‘them’ we are risking importing a foreign social setting into our study.”⁴⁸ Rather than assuming a social setting that fully embraced formal prescriptions, we should consider a setting that witnessed constant tension between the formal and informal. Instead of dividing the social landscape into wedges of sovereigns and minorities, jurisdiction and autonomy, we should consider one that was made of overlapping realms of authority. This is not to say that confessional communities had no applicable jurisdiction or that confessional institutions did not assume a practical role; far from it. But their existence and function should be viewed alongside those of other circles of social affiliation. It is in this context that we should consider the ongoing preoccupation of confessional elites with the question of their judicial jurisdictions. Here, in line with their arguments in favor of confessional autonomy, religious elites sought to draw their coreligionists into the fold of their judiciary, all the while highly alert to the fact that members of their communities had recourse to a variety of judicial authorities outside the boundaries of the autonomy that they aspired to realize.

      The Social Role of Law and Judicial Institutions

      In The Concept of Law, H. L. A. Hart argues a position that may seem somewhat inconceivable: “It is possible to imagine a society without a legislator, courts or officials of any kind … where the only means of social control is that general attitude of the group toward its own standard modes of behavior in terms of what can be characterized as rules of obligation.”⁴⁹ Yet Hart also acknowledges that “only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime.”⁵⁰ The Christian and Jewish communities at the focus of this study did not possess such features, though at times we do find groups within these communities that were bound by highly intimate relations, not to mention religious convictions. Still, irrespective of the size and nature of local relationships, Christian and Jewish communities were often, if not always, spiritually led by men who believed that their membership in a religion and their ethnicity transcended local affiliations. In contrast to those small communities that Hart sees as capable of maintaining a social order without a legal apparatus, those under discussion were highly dependent on one: “In any other conditions in which this simple form of social control is absent inevitable symptoms of social uncertainty and incapability of adaptation to changing circumstances will appear.”⁵¹

      Legal scholars and social historians acknowledge the role of law in general and its judicial application in particular as a means of social control and the use of that control for the purpose of social boundary maintenance, particularly by means of “monopoliz[ing] norms.”⁵² Here, the language of the law has importance in and of itself, as it helps empower the prescriptive aspect of the law. For example, we often find jurists not only laying down explicit rules against intermarriage, but also embellishing these rules with a vocabulary meant to underscore the negative aspects of such an act and the negative attributes of those outside the group’s boundaries.⁵³

      We should also note the ceremonial setting in which the law is implemented. Referring to the performative quality of civic trials in the Roman Empire, Brent Shaw spoke СКАЧАТЬ