Did Maimonides Reform Jewish Law to Keep Jews Out of Islamic Courts?

Dec. 28 2018

In Maimonides and the Merchants, Mark R. Cohen explores how the legal rulings of the great 12th-century philosopher and jurist—along with those of other rabbis living in the medieval Islamic world—were shaped by the lived social and economic realities of their day. Documents found in the Cairo Genizah, for instance, show that it was common at the time for both Jewish and Muslim merchants to enter into arrangements whereby one merchant served as an agent for the other in one country, while the second did the same for the first in a different country. Cohen argues that Maimonides shaped his rulings to account for such arrangements, as Ezra Blaustein writes in his review:

In [the section of his code titled] “Laws of Agents and Partners,” [Maimonides] discusses the case of a person conducting business through the use of an agent and allows that person to demand that the agent swear an oath affirming that he did not steal any merchandise or embezzle any money while it was in his hands. Maimonides portrays this ruling as growing organically from an established rabbinic law about partners, who may demand oaths from each other, but, in fact, previous halakhah had treated agents and partners as entirely separate categories. Cohen persuasively argues that Maimonides yoked them together precisely because business arrangements [involving mutual agency] were so common in his world. . . .

These partnerships of agency, critical to commercial operations in this period, would have been difficult to fit into existing halakhah. The Talmud simply does not hold an agent to the same standards of accountability as it does a partner. Previous Jewish law would have regarded [the participants in the sort of arrangement to which Maimonides refers] as mere agents of each other, without the kind of legal protections and recourse necessary to make such an arrangement work, [and] without the ability to supply legal remedies when it didn’t. As a result, Jews would often turn to local Muslim judges to resolve disputes. . . . In transferring the oath of partners to a case of agency, Maimonides provided Jewish courts with a means of enforcement for this arrangement.

This resolution represents a model for Cohen’s broader historical argument. The Talmud assumed an economy centered around agriculture or local trade. As such, Cohen explains, it could not respond to all the demands of the more dynamic, long-distance mercantile system of the Islamic world in which Maimonides lived. This situation forced Jewish traders into Islamic courts, which were equipped to deal with such partnerships, a development that horrified Maimonides, who rails against visiting non-Jewish courts in [his code of Jewish law] in language even more forceful than that used in the Talmud forbidding this practice.

Maimonides, Cohen hypothesizes, hoped “to bring the Jewish merchant back into the halls of Jewish justice rather than have him cross the line to plead his case in the Islamic courtroom,” by yoking the halakhic concepts of partnership and agency to reflect the economic world in which he lived.

Welcome to Mosaic

Register now to get two more stories free

Register Now

Already a subscriber? Sign in now

Read more at Jewish Review of Books

More about: Halakhah, History & Ideas, Middle Ages, Moses Maimonides, Religion & Holidays, Sharia

To Today’s Cosmopolitan and “Oikophobic” Left, Israel Can Never Be Acceptable

Aug. 23 2019

On the day the Knesset passed its nation-state law last year, Benjamin Netanyahu proclaimed, “This is our state—the Jewish state. . . . This is our nation, language, and flag.” This declaration, argues Wiliam Voegeli, points precisely to what the American left finds so unpalatable about Israel:

Sign up to read more

You've read all your free articles for this month

Register

Sign up now for unlimited access to the best in Jewish thought, culture, and politics

Already have an account? Log in now

Read more at Claremont Review of Books

More about: Anti-Zionism, Leftism, Nation-State Law, Nationalism