A Common Justice. Uriel I. Simonsohn

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СКАЧАТЬ Whether taking place before an imperial magistrate, in the context of a majestic tribunal, or under a tree outside a remote village, a judicial procedure implies certain ceremonial conventions. The mere appearance before the judicial figure is in itself an expression of submission on the part of the litigants. In addition, a predetermined space, in which regular conventions of speech and principles of etiquette are expected to prevail, attests to the ceremonial quality of the judicial process.⁵⁵

      Legal Pluralism: A Conceptual Paradigm

      It is in light of the role of law in society and in the context of the multiple laws that governed the lives of Near Eastern societies that this study adopts legal pluralism as a conceptual framework.⁵⁶ Social scientists, in their discussions of legal pluralism, have argued that a multiplicity of legal orders exists within every social setting. When it was revived, over two decades ago, the concept of “legal pluralism” was meant to undermine that of “legal centralism”—the notion that law is exclusively prescribed by the state, administered through its formal apparatus, and is equally shared by everyone.⁵⁷ “Legal centralism” was countered with the idea that the state is not the sole patron of legal systems; it “does not have a monopoly on law.”⁵⁸ Instead, rather than one law, legal pluralists have advocated for the prevalence of a multiplicity of laws.⁵⁹

      This multiplicity is seen in the amalgamation of coinciding legal orders such as the laws of the village, municipality, state, district, and region, as well as national and transnational orders. In addition, many societies follow other forms of legal systems, such as customary, indigenous, and religious law, or laws related to ethnic and cultural affiliations.⁶⁰ Here it is important to note that the loci of such legal orders should not be sought out only within the courts.⁶¹ In addition to a variety of formal types of tribunals, whether state-sanctioned or not, the redress of disputes and the validation of legal actions often take place in informal venues, through the intervention of informal institutions and figures.

      Legal pluralism, then, is “the condition in which a population observes more than one body of law.”⁶² At the basis of this notion lies the recognition that “within any given field, law of various provenances may be operative.”⁶³ The multiplicity of laws allows a multiplicity of legal orders, which, in turn, facilitate a multiplicity of “semi-autonomous social fields.”⁶⁴ In other words, the concept of legal pluralism highlights the plurality of legal orders, as well as the plurality of social orders that the legal orders aim to sustain.⁶⁵ Quite often, this multiplicity entails the overlapping jurisdiction of legal orders and, hence, of their legal institutions, particularly when social orders are not entirely self-regulated. The same legal order may serve more than one social order. Under such circumstances, we find that the legal institutions of discrete legal orders “support, complement, ignore or frustrate one another, so that the ‘law’ … is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like.”⁶⁶

      But legal pluralism can exist within a single legal order as well. Thus a distinction needs to be drawn between the existence of multiple legal institutions within a single legal order, and multiple legal institutions sanctioned by multiple legal orders—or, in other words, between “system-internal pluralism and pluralism of systems.”⁶⁷ This distinction was introduced by John Griffiths in terms of “weak” and “strong” forms of legal pluralism,⁶⁸ with the former pertaining to different rules and institutions prescribed by a single order and the latter to those prescribed by separate orders. Yet both forms present instances in which “a single population … acts within the framework of more than one body of law.”⁶⁹

      The Implications of Legal Pluralism

      “Legal pluralism,” writes Griffiths, is “a concomitant of social pluralism,”⁷⁰ and it is in this context that a dynamic of social control and social opportunism may occur. Since legal orders are exploited by various power groups as a means of social control, these groups “make competing claims of authority” and “may impose conflicting demands or norms.”⁷¹ However, the very competition among power groups allows clients to make use of legal pluralism to advance social ends and gain practical advantages. Both competition and opportunism are at the heart of the social significance of legal pluralism. It is here that patrons of legal institutions (power groups) and clients (litigants) employ a variety of methods for the fulfillment of their respective agendas. While patrons tend to seek exclusive authority, clients may choose to exploit this goal to try to get a “better deal” or extract various benefits. This dynamic can accelerate when claims are put forward on religious grounds, as religious power groups tend to perceive law as crucial for the maintenance of confessional identity. Whatever their grounds, the claims of power groups are all over similar social capitals: “authority, legitimacy, supremacy, and the prerogative of control over matters within their scope.”⁷² What is more, these claims are not voiced in a void but are often made in relation to claims by competing powers. Consequently, we may find that institutions and forms of legal reasoning and rhetoric undergo modifications within a given legal order in response to those of competing legal orders.⁷³ In addition, patrons of legal orders may resort to a variety of practical measures for sustaining authority.

      Legal Pluralism as a Methodological Paradigm

      Legal pluralism can be found in almost any society. As a paradigm, the concept of legal pluralism can be used as a means to shed light on the social context in which it exists.⁷⁴ In addition to identifying the patrons, clients, and institutions within a multiplicity of legal orders, legal pluralism can be used to understand the interplay between social phenomena and law. As a paradigm, it helps us to assess the manner in which legal discourse, legislation, legal interpretation, and stipulation reflect the agenda of patrons of legal orders, and the place and conduct of clients within their respective legal orders and, ultimately, social orders. Here it may be useful to view laws as maps, whose “main structural feature … is that in order to fulfill their function they inevitably distort reality.” Law, likewise, “becomes the … way of imagining, representing, and distorting … social spaces and the capitals, the actions and symbolic universes that animate or activate them.”⁷⁵

      Our task, then, is to understand how and for what purposes patrons of legal orders attempt to achieve legal supremacy, and how they take into account the presence of adjacent legal orders. It is equally significant to analyze how clients of legal orders respond to claims of legal authority, exploring in particular the manner in which, for the furthering of their own ends, they exploit, on the one hand, these claims of authority and, on the other, the multiplicity of available authorities.

      Legal Pluralism in the Late Antique and Early Medieval Near East

      The image that emerges from ecclesiastical and rabbinic legal sources of the period under consideration conforms to the theoretical principles of legal pluralism. The ensuing discussion will show that the patriarchs and the geonim issued their opinions and decrees in the context of competing and overlapping judicial institutions of diverse social and religious backgrounds. Rather than focusing on its manifestations, the concept of legal pluralism will serve here to consider the context in which confessional leaders made demands for judicial exclusivity and the means by which these leaders sought to achieve their goals. Because the patriarchs and the geonim opposed the freedom of their coreligionists to choose among a host of judicial possibilities, they had to come up with solutions that would enable them to win the loyalty of their coreligionists, while recognizing the realities “on the ground.”⁷⁶

      The ability of litigants to bring their suits before more than one judicial institution raises a variety of social questions. Such a choice reflects the subordination of litigants to a multiplicity of judicial authorities as well as their affiliation with a multiplicity of social circles. The social questions that come to the fore, therefore, concern not only the agendas of patrons and clients but also the definition СКАЧАТЬ