The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt 9780804787161

Citation preview

The Business of Identity

15 point Mrs. Eaves Petite Caps flush left on text page 18p1.5 base to top trim

Stanford Studies in Jewish History and Culture ed i ted by

8/24 Galliard Small Caps InDesign track 100

Aron Rodrigue and Steven J. Zipperstein 10/24 Galliard Italic flush right on text page

The Business of Identity Jews, Muslims, and Economic Life in Medieval Egypt

Phillip I. Ackerman-Lieberman

S t a n f or d U n i v e r s i t y P r e ss S t a n f or d, C a l i f or n i a

Stanford University Press Stanford, California ©2014 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archivalquality paper Library of Congress Cataloging-in-Publication Data Ackerman-Lieberman, Phillip Isaac, 1970– author. The business of identity : Jews, Muslims, and economic life in medieval Egypt / Phillip I. Ackerman-Lieberman. pages cm—(Stanford studies in Jewish history and culture) Includes bibliographical references and index. ISBN 978-0-8047-8547-1 (cloth : alk. paper) 1. Jewish merchants—Egypt—History—To 1500. 2. Partnership (Jewish law)—History—To 1500. 3. Commercial law (Jewish law)—History—To 1500. 4. Jews—Egypt—Identity—History—To 1500. 5. Egypt— Commerce—History—To 1500. 6. Egypt—Economic conditions—640-1517. 7. Cairo Genizah. I. Title. II. Series: Stanford studies in Jewish history and culture. DS135.E4A29 2013 381.089'924062—dc23  2013021487 ISBN 978-0-8047-8716-1 (electronic) Typeset by Miles B. Cohen in 10.5/14 Galliard

Contents

Preface vii Acknowledgments xi 1. Jewish, Islamic, or Mediterranean?  Historiography and the Cairo Geniza 

1

2. Partnership as Culture: Jewish Law and Jewish Life 

49

3. Commercial Forms and Legal Norms  in the Jewish Community of Medieval Egypt 

156

4. The Geniza, Jewish Identity, and  Medieval Islamic Social and Economic History 

194

Appendix: Fifteen Legal Documents Concerning Partnership 229 Notes  

325

Bibliography 415 Index of Geniza Documents 

431

Index 

435

Preface

Are the temptations of the marketplace so powerful that they overcome one’s distinctive cultural preferences? Does “acculturation” necessarily mean “assimilation,” or do subgroups somehow find a way to maintain their unique identities even when they are highly embedded in a larger society? What role do traditional dictates of such subgroups have in shaping behavior, particularly where local custom diverges from traditional law? What can the documentary evidence of subgroups tell us about the life of the whole? In this book, I examine these questions in the context of the economic and social life of the Jewish community of medieval Egypt. The first study to focus on the commercial life of this community through the legal documents of the Cairo Geniza—the richest documentary source in the study of the medieval Islamic (and Jewish) world—this study reveals a highly acculturated Jewish community that defined itself through confrontation with, rather than acceptance of, Islamic business practices. Each of the four chapters in the book addresses a distinct question, all connected with the Geniza and how it can be used to describe not only Jewish economic and social history but also the economic and social history of the Islamic milieu from which the Jewish Geniza documents emerged: How have scholars used the Geniza documents as a tool for understanding the social and economic history of the medieval Mediterranean world? What do legal documents from the Geniza tell us about how Jewish merchants cooperated, and what do these modes of cooperation tell us about Jewish culture in general and “Jewish” identity in particular? What role, if any, did the classical

vii

viii

Preface

works of Jewish law play in shaping commercial practice? And, finally, how can documents that emerged from Jewish hands tell us anything about the broader Islamic world as a whole? The first chapter discusses the historiography of embeddedness, describing how scholars of the Geniza, and particularly those of the “Princeton School” of Geniza studies, have viewed Jewish life and behavior as embedded in the cultural landscape of the medieval Islamic world. This particularly includes an examination of the limits of those cultural connections as well as a study of the scholarly, historical, and even contemporary cultural influences that prevailed on Geniza scholars to represent the Jewish community as an integrated part of the medieval Islamic world. In this chapter, I also point out the overwhelming focus of these scholars on Geniza letters in their research; explaining the richness of letters in yielding detail concerning daily life, I outline their limitations in providing detail concerning economic organization. The second chapter introduces economic life as a domain for Jewish identity formation, suggesting the possibility that the legal structures of economic partnerships of at least a stratum of Jewish actors more closely resembled normative Jewish legal structures than the corresponding structures seen in Islamic legal codes. Having introduced the possibility, this chapter details a number of characteristics of economic relationships seen in Geniza evidence that not only accord with canonical Jewish legal codes concerning commercial matters but also find resonance in other aspects of Jewish law and culture. Where these characteristics of law and culture deviate from the predominant legal or cultural norms of medieval Islamic society as a whole, the analysis in this chapter shows that these characteristics actually cut across a number of aspects of Jewish life. The characteristics are seen as central to Jewish identity formation, and I show how their adoption in commercial life was a deliberate choice contributing to the manifestation of a distinctive Jewish identity in the medieval Islamic world. To give the reader a feel for the detail from the documents, I have attached an appendix that includes transcriptions, translations, and brief commentaries of fifteen Geniza documents concerning commercial partnerships. The appendix appears at the end of the book, but the detail

Preface

it uncovers bears most directly on the material found in the second chapter. Having shown continuities between normative Rabbanite Jewish legal codes and the practices of Jewish merchants in the medieval period in the second chapter, in the third chapter I address the dialogic relationship between codes and practice. I achieve this by closely reviewing procedure in the Rabbanite courts of medieval Egypt and detailing the decision-making process that underpinned the formation and maintenance of economic relationships. In the chapter, I make recourse to the work of modern legal theorists in the area of mediation practice to help explain that although the detail seen in the commercial agreements of the Geniza does not always accord with Jewish legal norms, Jewish law nonetheless carried a significant normative force in the quotidian life of the community. The dialogical relationship between law and practice will be seen as revealing law in that context to have been both prescriptive and descriptive. Finally, the fourth chapter traces out the ramifications of the first three chapters for the study of medieval Islamic social and economic history. After showing in the second and third chapter that the Jewish community made recourse to Jewish legal norms as a vehicle for identity formation, in this final chapter I problematize the central assumption of the Princeton School. In place of this assumption, I integrate the data gleaned from legal documents and discussed in the other chapters in order to propose a new model for reading the Geniza documents into medieval Islamic culture. This model is simply an extension of models fruitfully applied by other scholars examining similar questions, notably Robert Bonfil in his study of Jewish life in Renaissance Italy, Rina Drory in her study of Rabbanite and Karaite literary contacts in the medieval Islamic world, and Wael Hallaq in his study of Islamic scribal practice. This model maintains for the Geniza documents a central role in the study of medieval Islamic social and economic history despite the conclusions of the earlier chapters that Jews and Muslims may have had different commercial practices. This model also reveals a constellation of mutual influences among commercial practice as found in the Geniza documents, Islamic law, and the practice of Islamic merchants in the marketplace.

ix

x

Preface

I would hope that this work has something to say to social and economic historians of the medieval Islamic world, since the documents of the Cairo Geniza are a mainstay for them—or, at least, have the potential to be such. But I also hope that it has something to say to scholars studying Jewish history and culture in other historical and geographic locales for whom questions of identity formation and cultural assimilation are of significant moment, since the work demonstrates economic life (often understood as an area of great cross-cultural assimilation, driven more by the desire for profit than by questions of communal identity) to have been a vehicle for establishing and maintaining a distinctive identity. Indeed, it may be that distinct economic practices within the Jewish community played a similar role in other times and places. Finally, scholars of legal history in general, and Jewish law and Islamic law in particular, will be interested in the discussion of the normative force of Jewish law, especially since the discipline of legal studies has long moved in the direction of viewing law as accommodating commercial norms rather than helping to establish them. It is worthwhile pointing out that I have drawn the lines starkly in this book. My writing might be seen as critical, but I have focused on scholars whose work has profoundly influenced, indeed shaped, my own, and for whom I bear a deep and abiding respect. One might argue that the Princeton School is too small to be anything more than a collection of individuals whose own practice is too varied to constitute a coherent “school.” Likewise, one might point to the difficulties in treating the Geniza corpus as a unified whole, since the documents concern a broad swath of people over a diverse geographical and temporal expanse whose use of language was often fluid, to say nothing of their commercial practices. Yet I have done these things to put an important methodological question in relief. I hope that the reader will find the solutions I suggest to be interesting and perhaps even fruitful, and that they will help engender further discussion in the field.

Acknowledgments

In the Jewish mind-set, if not beyond, partnership is endemic to humanity. God’s immediate response to man’s aloneness in the Garden of Eden is to fashion him a partner. Companionship and collaboration carry over to other domains as well. “Two are better than one,” records the Book of Ecclesiastes (4:9), “because they have a good reward for their labor.” This book about mercantile partnerships is itself the product of many fruitful intellectual partnerships over more than a decade. These partnerships include my many relationships with teachers throughout my life, particularly in college and through more than a decade in graduate school at the London School of Economics, the Jewish Theological Seminary, and Princeton University. While I was a student both at JTS and at Princeton, Mark Cohen gave me an essential piece of that scholarly background by opening up the world of the Cairo Geniza to me and giving me the tools to embark on the sort of research that was necessary to produce this book. Professor Cohen was also kind enough to give me the opportunity to work with him for several years on the Princeton Geniza Project. I am deeply grateful to him for his continued support throughout the years. Although in this book I challenge the historiographical tendencies of the so-called Princeton School of Geniza study, I have deep respect for the knowledge and wisdom of the scholars of the Princeton School, some of whom were my own teachers, most notably A. L. Udovitch. I spent time with Professor Udovitch reading both Geniza letters and compendia of Islamic law, and his scholarly oeuvre connecting law and daily life seen through the Geniza letters has been

xi

xii

Acknowledgments

tremendously influential as I conceived of this book. In terms of the methodology seen in the second chapter, I am indebted to Lawrence Rosen of the Department of Anthropology at Princeton University. The seed for this book came from my research in the Department of Near Eastern Studies at Princeton. That seed subsequently found fertile ground at public presentations I gave in the years following the completion of my doctoral work there in 2007. The first chapter of this book sprouted from a presentation on the historiographical practice of S. D. Goitein at the Medieval Academy of America in the spring of 2010. The panel was organized by Youval Rotman of Tel Aviv University, and I am thankful for his encouragement and support of my paper. As the conference presentation became a book chapter, it benefited particularly from the detailed comments of Michael Pregill of Elon University. Public presentations also contributed to the development of the third chapter, which emerged from a presentation I gave in spring 2009 at the Katz Center for Advanced Judaic Studies at the University of Pennsylvania, where I was an adjunct fellow during the 2008–09 academic year. I thank David Ruderman, director of CAJS, for giving me this opportunity. My thoughts were particularly shaped by comments on my paper at that meeting made by Jessica Goldberg and Talya Fishman, both also of the University of Pennsylvania. As the ideas which emerged from the presentation took shape, I brought early versions of the third chapter as talks to the faculty of the Skirball Department of Hebrew and Judaic Studies at New York University, where I served as the Dorot Assistant Professor / Faculty Fellow from 2008 to 2009, and at the Legal History Colloquium at NYU Law School. I very much appreciate William Nelson’s kindness in allowing me to participate in the Legal History Colloquium in 2008–09, and to present on my work in late 2009. A version of the third chapter was also published in Law & History Review in November 2012; I thank David Tanenhaus of the University of Nevada at Las Vegas for his extensive assistance as editor of that journal, as well as four anonymous peers whose comments on the article greatly contributed to its development. Mark Cohen also commented on the chapter.

Acknowledgments

The seed at the heart of the model which I discuss in the fourth chapter was planted in conversations with Michael Weingrad of Portland State University, and I also benefited immensely from the feedback of colleagues in the Program in Jewish Studies at Vanderbilt University: Ari Joskowicz, Shaul Kelner (currently director of the program), Julia Phillips-Cohen, Allison Schachter, and Martina Urban, all of whom also read and commented on the chapter. Partnerships with all these colleagues have been tremendously fruitful, as have discussions with my other Vanderbilt colleagues William Caferro and David Wasserstein of the Department of History and Lenn Goodman of the Department of Philosophy. As these various chapters began to develop, I conceived of the project coalescing into a book. While the project was only in the proposal stage, the Lucius N. Littauer Foundation graciously showed support for my work by awarding me a subvention grant. I thank the director of the foundation, William Frost, for the tremendous vote of confidence he placed in me by championing this proposal. Vanderbilt University’s Program in Jewish Studies also provided financial support for the book’s eventual publication; I thank the program’s immediate past director, Leah Marcus, for this. From the proposal stage onward, Norris Pope of Stanford University Press patiently offered sage advice as he helped guide the project to fruition. Dr. Pope was always helpful and responsive to my queries. This often brought me comfort and allowed me to focus on the scholarly aspects of the work. When the manuscript materialized as a whole, the comments of an anonymous reviewer for Stanford University Press gave me not only substantive insights of great import but also the impetus to revise some of the writing. I thank this individual for his or her time and careful attention. I also thank the faculty at the Vanderbilt University Writing Studio for their guidance as I revised the manuscript, and in particular James Grady of Vanderbilt for his helpful recommendations for structuring the second chapter. With the manuscript nearing completion, my colleague Amir Ashur of Tel Aviv University took a look at some of the transcriptions in the appendix and gently reminded me that the imaging technology on which students of the Cairo Geniza rely has changed substantially

xiii

xiv

Acknowledgments

since I first transcribed some of the documents I have placed there. His suggestions led me to revisit my transcriptions using images from the Friedberg Genizah Project. Revisiting and correcting my old transcriptions reminded me of the difficulties inherent in reading and understanding the Geniza material. In light of this, it is important to note that although insight and inspiration for this book came from the many teachers, colleagues, and friends I have mentioned here, the errors the reader will likely find are uniquely mine. Dr. Ashur graciously read the entire manuscript and offered comment, as did Oded Zinger of Princeton University. Permission to reproduce the images for the book was granted by the Cambridge University Library’s Genizah Unit, the Bodleian Library, the Library of the Jewish Theological Seminary, the Institute of Oriental Manuscripts of the Russian Academy of Sciences, and the National Library of Russia. I offer my thanks to these institutions, as well as to those who keep, preserve, and provide access to their collections of Geniza documents. Ben Outhwaite, director of the Cambridge Genizah Unit, is particularly deserving of mention for his endeavors in this domain. As the manuscript becomes a book, I thank Aron Rodrigue and Steven Zipperstein, editors of the Stanford Studies in Jewish History and Culture series, for their commitment to this project. I hope that the book validates their support. Finally, I thank my wife and partner, Rebecca Danielle AckermanLieberman, for tirelessly enduring hundreds of hours of monologue about this project. She deserves a share of the pleasure in seeing its publication, and it is to her that I dedicate the work. Phillip I. Ack er m a n-Lieber m a n September 16, 2012 29 Elul 5772 / Er ev Rosh h a-Sh a na 5773

The Business of Identity

One 

Jewish, Islamic, or Mediterranean? Historiography and the Cairo Geniza

The Cairo Geniza is, certainly, one of the most important resources for the study of the world of the Islamic Mediterranean. This treasure trove, discovered in the dedicated chamber at the back of the Ben Ezra Synagogue in Fustāt (Old Cairo), contained documents dating as far back as the ninth century and as recently as the nineteenth, when Western scholars began to plumb its depths in order to study medieval Jewish life. S. D. Goitein’s estimate (19671) of a quarter-million leaves of paper and papyrus in the Geniza dwarfs that of only fifty thousand sheets from the rest of the Islamic world, offered by Adolf Grohmann in 1952.2 Although the vast majority of the Geniza leaves represent literary texts,3 the fragments of the so-called documentary Geniza are believed to number around fifteen thousand,4 “which appear in a trickle during the second part of the tenth century and become a flood for the subsequent two and a half centuries.” 5 It should be obvious that the greatest contribution made by the Geniza documents is in providing insight into the daily lives of the individuals who composed them. This is because otherwise “documentation for Fatimid rule and for the societies that lived under it is certainly poorer than for a dynasty like that of the Mamluks.” 6 In general, whereas edited literary sources “yield tantalizing bits of data, though seldom enough to permit a fully satisfactory resolution of any major problem,” 7 the edited nature of literary sources leaves them vulnerable to the challenge that any such source “evolved over time . . . and naturally shows the impact of political, theological, social and other issues that were not important at the time of the event the accounts are supposedly describing.” 8 Furthermore, while

1

2

Jewish, Islamic, or Mediterranean?

classical literary and rabbinic works may overrepresent the rabbinic and social elite and may or may not even be intended to depict the quotidian reality of their writers in medieval Egypt, scholars generally understand the data found within the “documentary Geniza” to depict accurately the daily life of its writers since the Geniza is simply a repository of documentary fragments rather than an archive or an edited literary collection. A. L. Udovitch, one of the most important Geniza scholars of the late twentieth century, asserts this when he writes that “there is no Heisenberg effect here, that is, the data in the documents are ‘unobserved’ and require no adjustment for distortion as a result of observation.” 9 It is the “unobserved” or “unedited” quality of the documents, as well as their great breadth of substance (Udovitch also points out that they “derive from . . . a fairly wide range of the social spectrum” 10) that has established the importance of the Geniza documents for the study of the broader world from which the documents emerged. Further, although their writers—and indeed, the vast majority of the dramatis personae with which the Geniza documents are concerned—are overwhelmingly Jewish, the question arises of whether and to what extent this rich collection of materials can be used as a source of Islamic as well as Jewish social history. This question is of particular importance for a period in which other sources of documentary evidence are few. In this chapter, I briefly outline some of the various strands of Geniza study, with an eye toward describing how the documents have been used by scholars as a source of Jewish and Islamic social and economic history. Contemporary Geniza studies may be said to have begun with the visit of Jacob Saphir to the Geniza chamber in 1864 and his subsequent publication of a work describing its contents.11 Yet one of the most prominent strands of Geniza scholars (and perhaps the most prolific strand) is the “Princeton School,” 12 which looks to Geniza documents as an important source (perhaps the most important) describing the Islamic environment as a whole, communicating much “about the rhythms of daily life in the Islamic environment from the data on material culture from the Geniza.” 13 I focus my energies in this chapter on the Princeton School. One fundamental element found among its members is a willingness to assume a

Historiography and the Cairo Geniza

cosmopolitanism among Jews and Muslims in medieval Egypt that manifested itself in a commonality of practice across “confessional” barriers in one domain or another. Here, the idea of Jewish “embeddedness”—defined by these scholars as “assimilation” or “conformity”—sits in tension with the idea of Jewish “exceptionalism.” That is to say, these scholars understand Jewish embeddedness to imply behavioral conformity with the norms of their broader environment, rather than exceptional behavior through which Jews might have distinguished themselves. Examining the social conditions and the intellectual environments from which these scholars emerged, I show that this dichotomy between embeddedness and exceptionalism emerges not from the documents themselves but rather from the Bildung or “character education” of the scholars who studied the documents and their assumptions about Jewish life in the medieval Islamic context. Challenging the dichotomy between embeddedness and exceptionalism, I propose an alternative to the humanism or cosmopolitanism of scholars such as S. D. Goitein, the twentieth-century doyen of Geniza studies, which allows the Geniza documents to be viewed as the distinctive cultural production of a Jewish community that was embedded in medieval Egyptian culture and economy and yet maintained the possibility of distinctiveness in quotidian life. Focusing on documents concerned with mercantile cooperation, I entertain the possibility that commerce and trade provided the Jewish community with a vehicle for expressing its own cultural distinctiveness. And over the course of this book (particularly in the third chapter), I explore in detail the process through which Jewish economic actors were made aware of traditional rabbinic legal norms concerning matters of commerce. With this in mind, the choice of these Jews to interact with one another in accordance with Jewish law can be seen as deliberate, reflecting a tendency on the part of merchants and traders to adhere to traditional Jewish norms when their colleagues in the broader “Islamic” marketplace may have acted otherwise. The possibility of Jewish distinctiveness in daily life, particularly in the domain of commercial cooperation, would problematize the use of the Geniza documents as sources for Islamic social history. The joining of embeddedness and assimilation or conformity conveniently

3

4

Jewish, Islamic, or Mediterranean?

allows the historian to use the Geniza documents as a proxy for the largely obliterated documentary record of the Islamic community; conversely, the possibility of Jewish exceptionalism could lead the researcher in Islamic history to the despairing conclusion that the Geniza is useless for shedding light on the object of his or her study, except where the Geniza documents describe Muslims or Islamic institutions. This book as a whole offers a possible solution to this problem, sketching out how scholars can actually use the distinctiveness of Jewish merchants in the economic domain as a tool for understanding the Islamic environment in which those Jewish merchants functioned. But the history of the humanistic association between embeddedness and assimilation must first be addressed; and such a history must begin with the work of Goitein, whose masterful and extensive scientific study of the documents laid the foundation for the present-day field of “Geniza studies.”

S. D. Goitein: Humanist and the Doyen of Geniza Studies The study of the “documentary Geniza” did not start with S. D. Goitein, but he is the undisputed doyen of Geniza studies. Born the scion of a rabbinic family in the town of Burgkunstadt, Bavaria, in 1900, Goitein pursued Islamic studies in Frankfurt and Berlin, though he also pursued in parallel the study of Jewish texts and tradition under the tutelage of Rabbi Nehemias Nobel.14 Immigrating to Palestine in 1923, Goitein initially taught Bible and history at the Haifa Reali School, moving to the Hebrew University in Jerusalem in 1928, shortly after its establishment. Gideon Libson’s appreciation of Goitein’s scholarship explains that “Goitein’s scholarly work centered not on a variety of different subjects, but on one broad topic, with different branches being nourished by a single root: the Jewish-Arab encounter on all levels and its varying impact.” 15 Surveys of Goitein’s research trajectory—including Libson’s—generally describe a more or less definitive move from one branch of the “Jewish-Arab encounter” throughout his early days and his years in Palestine and Israel to

Historiography and the Cairo Geniza

another branch during his years in Philadelphia (which could be said to have begun with his migration to the University of Pennsylvania in 1957, though this followed shortly after Goitein’s year as a visiting professor at Dropsie College in 1953–54)16 and the Institute for Advanced Study at Princeton, where Goitein served from 1971 until his death in 1985. This shift is reflected in a move from his early works on the foundations of Islam—such as his doctoral dissertation, “Das Gebet im Qoran” (approved under the supervision of Josef Horovitz, a well-known orientalist who would go on to establish the Hebrew University’s Institute of Oriental Studies) and his translation of the fifth volume of al-Balādhurī’s prosopographical Ansāb al-Ashrāf (published in 1936 by the Hebrew University)—to the study of the Cairo Geniza.17 Thus, although it was not published until 1966, well after Goitein had become established in Philadelphia, his Studies in Islamic History and Institutions 18 can be seen as a watershed representing this shift in his research; as Libson writes, “while the first part is based on Muslim sources, the second turns to genizah documents.” 19 This was more than a shift in the sources on which Goitein relied; it also betokened a shift in the object of his analysis from “Islamics” 20 to what he himself would come to call “a Mediterranean People.” 21 It is abundantly clear that he did not intend by this designation “Jews in Islamic Lands,” or even the broader “Jews living in the Mediterranean Littoral.” Rather, he seems to have understood the term to describe (and inscribe) Muslims, Christians, and Jews alike in the region whose inhabitants produced the Geniza documents. Goitein’s recognition, from the beginnings of his Geniza studies, of the importance of these documents for deepening his understanding of Islamic history and culture, the object of his early research, is immediately apparent from his publication of a number of articles with titles such as “What Would Jewish and General History Benefit by a Systematic Publication of the Documentary Geniza Papers?” 22 and “The Documents of the Cairo Geniza as a Source for Islamic Social History.” 23 At the core of this recognition was his understanding of a “Jewish-Arab symbiosis” 24 in which the Jews of the Arab world “drank in everything Arab because

5

6

Jewish, Islamic, or Mediterranean?

they were sure of their autonomous culture and comfortable in a religious environment that was simply an ‘enlargement’ of Judaism.” 25 Appreciations of Goitein’s life—particularly those of Steven Wasserstrom and Gideon Libson—explore the master’s vision of a “creative symbiosis” between Judaism and Islam.26 The term these accounts use to describe Goitein’s approach to medieval Jewish society and its symbiosis with medieval Islam is “humanism,” which bears discussion here. In his posthumously published article “The Humanistic Aspects of Oriental Studies,” 27 Goitein explains: What then is humanism? I use the word humanism in its traditional sense, as it was applied to the great humanists of the fifteenth and sixteenth centuries. In a very general way, a spirit of humanism has been manifest in world history in many places and times, namely, when people were searching for useful knowledge, goodness, and beauty not only among themselves, but wherever they could find them, even among strangers and enemies.28

Thus Goitein saw the search for “self-perfection” as transcending space, time, and the boundaries of nationality and creed, 29 and subsequent readers of his work have often pointed out his efforts to push aside these boundaries.30 Further on, I discuss in greater depth his tendency to overlook the passage of nearly a millennium from the period of the Geniza documents until his own, seen most fully in his efforts to thrust insights from his own life experience and time period onto the medieval period. Yet he did not believe that there were no boundaries at all between communities. He reserved for participants in a “humanistic” culture the right to rejoice in their own identity: “There is nothing wrong with a man’s conviction that his religion is the best (at least for himself), as long as this belief does not make him blind to the virtues of others and as long as the supreme values of morality and mercy are not sacrificed to confessional fanaticism.”31 Thus, in describing the “genizah man,” Goitein explains that “this person had firm ethical views; his religiosity was simple and healthy, he was sober, pretty much free of superstition, and generally loyal to his own people.”32 By “superstition,” Goitein clearly meant obscurantism, a fealty to unenlightened practices and ideas. Understanding the “genizah man” to be “pretty much free” of such ideas and practices,

Historiography and the Cairo Geniza

Goitein would have had little truck for magic or fancy among the Geniza people. Indeed, Cohen even explains that Goitein found little expression of magical superstition in the business letters he so painstakingly transcribed and translated. The merchant had to be rational in his pursuit of profit. He was a thinking and calculating man, carefully planning his every move, his every purchase and sale. He relied on his carefully orchestrated partnerships, not on magical powers. If the merchant relied on supernatural intervention, it was on God, alone.33

Likewise, Goitein focused on the “rational” even within the creative domain of the literary: he describes the sage Abraham Maimonides (1186–1237 ce), in his view the very apogee of Jewish culture in medieval Egypt, as having been so persuasive in his biblical commentary “as to make even its midrash (homiletics) seem like peshat (the simple meaning of the text).”34 That is to say, Goitein even saw Abraham’s biblical exegesis—an area in which one might be expected to exercise a great deal of literary freedom and creativity—as “free from superstition,” since it could be understood as nothing more than unpacking the simple meaning of the text. Further, although Goitein’s “genizah man” might be reasonably expected to maintain loyalty to his own people, this loyalty did not eclipse the perpetual search for ultimate human perfection: Goitein particularly praises Abraham Maimonides’ adoption of Muslim Sufi traditions for his “efforts to shore up these views with ancient Jewish sources and prove their continuity with early tradition.” 35 Goitein understood that commonality in language, religion, and culture led the Jewish community to look to their Muslim neighbors for leadership in many areas. The permeability of interconfessional boundaries implied by this communal search for perfection allowed Goitein not only cover “nuggets of evidence about Islamic society buried in to dis­­ the Geniza records” 36 but also to muse about the possibility that the Geniza could provide more than simply nuggets, and perhaps even descriptions of entire cultural institutions and practices not detailed in the medieval Islamic literary or documentary sources available to him. Although the Geniza documents did not, by and large, emerge from

7

8

Jewish, Islamic, or Mediterranean?

Islamic hands, nor was their vast majority concerned with individuals who were identifiably Muslim, Goitein understood much of the detail those documents provided to be no less descriptive of Muslims than of the Jews who wrote them. For example, noting a “usual condition” in Jewish marriage documents from the Geniza that the husband agrees not to marry a second wife, Goitein writes: “In the Arabic papyri, the wife sometimes receives the right to ‘dismiss’ the second wife, if she does not please her. I wonder, however, whether the still unpublished Muslim marriage contracts, which are contemporary with the Geniza papers, do not contain the same ‘usual condition’.” 37 Importantly, perhaps, Goitein presents this conjecture despite his own admission that this clause was absent from the five published Muslim marriage documents from the thirteenth and fourteenth centuries that he knew.38 He maintained this conjecture despite the silence of these documents by explaining that the prevalence of monogamy “was more characteristic of a progressive middle class than of a specific religious community. It is not excluded that the same practice prevailed at that time in the corresponding layers of Muslim society.” 39 In this case, it would seem that he understood behavioral norms to be described by economic strata (these are the “corresponding layers”) rather than religious affiliation. Such an outlook follows what he himself described as “the towering figure of Michael I. Rostovtzeff,”40 under whose influence Goitein fell, both in relying heavily on epigraphy and in understanding social divisions to be defined principally by economic class rather than by confessional boundaries.41 Goitein composed his magnum opus A Mediterranean Society  42 in a manner that presented detail he deemed “sociographic . . . not sociological”43 —by which he meant that his work aimed to arrange and present detail from the Geniza documents in order to bring to light his “Mediterranean Society” rather than to draw the lines of cultural border and identity established by distinctive mentalités of specifically Jewish or Muslim communities. Indeed, it could be said that Goitein’s humanistic impulse led him to perceive one overarching “Mediterranean” mentalité whose contours were generally smooth, at least across confessional lines. Goitein seems even to have originally intended to title the fifth volume of A Mediterranean

Historiography and the Cairo Geniza

Society “The Mediterranean Mind,” though he was later dissuaded from doing so.44 Goitein’s examination of documentary witnesses other than the Geniza buttressed his conjecture, leading him to conclude that I am even inclined to believe that, to a large extent, the Geniza records reflect Mediterranean society in general. When one reads legal documents on the same topic in Arabic, Aramaic, Hebrew and Byzantine Greek, one realizes how similar they are not only in legal conceptions, but even in their very wording. The same applies to business letters and even to private correspondence, as far as we have material for comparison.45

Goitein did believe that there were points of discontinuity in that contour, explaining that “specifically Jewish are matters of religious ritual, family law and community life.”46 Yet he softened even this assertion, hypothesizing that the information available from the Geniza concerning Jewish communal life that was suggestive of Greco-Roman corporations rather than of classical Islamic literary conceptions of urban society might actually have depicted a broader norm. That is, he challenged “generally accepted views about Islamic society in the High Middle Ages”47 in order to see Jewish and Islamic communal life as assuming a common form, since both of these communities were part of the “Mediterranean People.” Removing “community life” from Goitein’s triumvirate of areas of Jewish distinctiveness would leave ritual and family law as the main, and perhaps the exclusive, areas in which he would draw the line between the lives of the writers of the Geniza documents and those of their Muslim and even Christian contemporaries. Meanwhile, Goitein argued that the frequency and intensity of contacts between Jews and Muslims in economic life encouraged the former to integrate communitywide behavioral norms.48 Describing Jewish exceptionalism in the domain of family law, Goitein argued that “the situation was entirely different with regard to family law. These were not man-made financial matters, tenay mammon, but biblical commandments, din torah. Moreover, Jewish and Islamic family laws and practices differed widely.” 49 The statement seems to presuppose categories (tenay mammon and din torah) that he

9

10

Jewish, Islamic, or Mediterranean?

derives from Jewish law, subtly juxtaposing (presumably minor) “conditions” in financial matters with fundamental principles—though it is not entirely clear that these distinctions would have been drawn by rabbinic jurists of the period. Notably, his statement carefully avoids any discussion of whether taking on these “conditions” as their own would have led Jews to follow Muslim practices that actually contravened Jewish law as such. Rather than weighing in on whether or not Jews would follow such practices, he simply contrasts conditions made in financial relationships with ritual or family commandments or law. In this analysis, he may have been influenced by the talmudic principle dina de-malkhuta dina (“the law of the land is the law”),50 which allowed Jewish jurists particularly in the diaspora to recognize enactments or customs emerging from a non-Jewish authority as carrying the force of Jewish law. Goitein’s association of “man-made financial matters” with greater legal flexibility echoes this principle, since he would have known from his own talmudic training that dina de-malkhuta dina is understood to have applied to certain commercial matters as well as to the general administrative matters of non-Jewish authorities.51 Thus he essentially conflates the distinction between “conditions” and “law” with the distinction between financial matters and ritual matters. Describing financial matters as conditions and family matters as law, he rejected any Jewish distinctiveness in financial matters and emphasized the distinctiveness of Jewish life in family matters. Although he might have acknowledged the influence of the Islamic environment on Jewish family life52 and mused about whether supererogatory conditions in marriage documents were Muslim as well as Jewish, such supererogatory conditions were ultimately not dinei torah. But where family matters did fall under the rubric of dinei torah, Goitein seems to have understood the Jewish community to have preserved the authority of Jewish law in establishing practice distinct from that of Muslims or Christians.53 Goitein’s view that the practice of family law was distinctive among the Jewish community, and particularly that Jews’ distinctive practice of family law adhered closely to classical Jewish legal norms,54 mirrors the claim of prominent scholars of Islamic law that Islamic law held sway over daily life in but a few areas, family law most prominent

Historiography and the Cairo Geniza

among them. This understanding has had a distinguished provenance extending at least to Gotthelf Bergsträsser in the early twentieth century. As detailed by Joseph Schacht, Bergsträsser’s approach divides the relationship of Islamic law to daily life into three broad categories: the administrative matters of political authorities, including criminal law, for which “the doctrine of the sharī‘a is merely a fiction and retrospective abstraction”; family and inheritance law, for which “the sharī‘a . . . had the firmest hold”; and the law of contracts and obligations, which was situated between these extremes and was largely controlled by customary law.55 Schacht understood commercial practice in the medieval Islamic world to have been driven by custom rather than by the classical institutions of Islamic law, with law and practice brought into agreement only through the ĥiyal (“legal devices”), which allowed Muslims to circumvent the stringencies of Islamic law while nonetheless obeying its letter.56 In describing Islamic law as undergoing a process of dynamic development, and in seeing commercial law as an area that brought together custom and classical institutions, Schacht parried the claims of his predecessor Christiaan Snouck Hurgronje, who explained that “Islamic commercial law remained for the most part a dead letter.” 57 Yet it is important to note that both Snouck Hurgronje and Schacht ascribed a central role to custom as opposed to the institutions of classical law in commercial practice. Like both Snouck Hurgronje and Schacht, Goitein understood commercial life to be an area in which customary practice held great sway. In describing the daily life of the Jewish community, Goitein understood that Jews would observe conditions established not by the classical institutions of Jewish law but rather by the customary practice of the marketplace as a whole. However, he believed that the area of Jewish practice most closely linked to Jewish law was family law, the very subject area Schacht describes as most closely linked to traditional Islamic law. Goitein, then, can be seen as applying to the Geniza documents, which emerged from Jewish hands, the same categories elaborated by Schacht to describe the relationship of Islamic law and practice. Recognizing Schacht’s categories and analysis as underpinning Goitein’s analysis, the latter may be seen as having envisioned a common Jewish-Islamic disposition toward distinctive legal traditions

11

12

Jewish, Islamic, or Mediterranean?

in family law on the one hand, and toward a universal local custom in commerce on the other. Goitein’s sense of a common universal custom was voiced in his statement that “such matters as practices of commercial cooperation, sales, and rents, were developed not so much by Islam as a religion as by the interconfessional community of merchants and were accepted as such by the Jewish authorities.” 58 He did acknowledge that economic interactions were part and parcel of religious law59—at least, of Islamic law—but he also understood customary practices to have been integrated into those legal norms. Furthermore, the latitude extended to individuals who wished to adopt supererogatory practices or conventions that did not conflict with those legal norms meant that “man-made financial matters” could be considered universally followed tenay mammon (“financial conditions”). Yet Goitein went farther. In seeing the high middle ages to be a period of “creative Jewish-Arab symbiosis” during which “traditional Judaism received its final shape under Muslim-Arab influence,” 60 he understood the Jewish community not only to have incorporated into its practice the customary law of the marketplace but even to have integrated into its own legal codes the norms of Islamic law: The impact of Islamic law could be felt in different ways. It could be direct by outright adoption of the practices of the environment; indirect, by adjustment of Jewish institutions and concepts to those of Islam. It could be opposed by measures taken by the Jewish authorities or by the actions of private persons while settling their legal affairs.61

Yet Goitein was careful to frame his discussion of “man-made financial matters” only in terms of “conditions.” That is, in understanding custom to inform both practice and codified law, he did not need to claim that the practice of Jews in the commercial marketplace would necessarily have transgressed codified norms per se. Rather, as did Islamic law, Jewish law as codified would have accommodated, and essentially canonized, much of the detail of commercial practice; and those areas not falling within the purview of codified law would simply have been those “conditions” that were instead governed by the marketplace of ideas.

Historiography and the Cairo Geniza

The framework with which Goitein understood the relationship of Jewish law to the practice of the commercial marketplace as a whole was informed and confirmed by his survey of the Geniza documents. That is, he did in fact find areas of conformity of practice to canonical Jewish norms beyond those areas he described as “specifically Jewish.” For instance, he noted that “even a cursory examination of the Geniza material reveals that lending money for interest was not only shunned religiously, but was of limited significance economically.” 62 Further, Goitein did mull over the possibility that Jews might have adopted legal terms from the marketplace of ideas yet have maintained a distinctively “Jewish” practice: “When the modern reader finds Arabic terms in Jewish contracts he might be in doubt whether they represent assimilation in substance or only in juridical wording.” 63 Yet, noting that both Jewish and Islamic law permitted “considerable freedom with regard to the legal form of their economic undertakings,” 64 he understood the appearance of the Judeo-Arabic term “qirād al-gōyīm” (which he described as a “mutual loan according to Muslim law”) in documents emerging from the Jewish courts to indicate a prevalence, even a preference, for the mutual loan seen in Muslim law rather than its analog in Jewish law.65 The term qirād might itself mean any number of things, but qirād al-gōyīm seems to suggest quite clearly a single practice that transcended confessional lines. Having hypothesized that the Geniza documents represent “in the first place the class, the period and the country from which they come, while only a limited section of their contents is peculiar to the religio-national group in which they originated,”66 Goitein nonetheless expected that subsequent studies “in the related fields of Islamic and European history” would either vindicate or vitiate this “working hypothesis.” 67 Such an understanding suggests that Goitein was well aware of the social position of the writers of the documents that emerged from the Jewish community, and that he knew confessional identity may indeed have played a role in behavioral choice. Perhaps unsurprising given his historiographical approach, Goitein even found in the Geniza documents explicit confirmation that Jews laid aside classical Jewish norms in favor of the practice of the marketplace as a whole. Thus, a twelfth-century court document

13

14

Jewish, Islamic, or Mediterranean?

alludes to “the customary practice of merchants in Misr” (in JudeoArabic: “al-‘āda bi-Misr bayn al-tujjār”)—that is, Fustāt, Old Cairo. Apparently, this “customary practice” consisted of merchants gathering together spontaneously to form a partnership and one of them appointing an agent to transact on behalf of the partnership, either before or perhaps even without “the kinyan, the symbolic taking possession, which according to Jewish law would have been obligatory in such a case.” 68 The allusion in a document to a common commercial practice that would seem to stretch if not breach classical Jewish law is paralleled in a geonic responsum alluding to “the customary practice of merchants” (in Judeo-Arabic: “ke-ĥukm al-tujjār”).69 It would seem, then, that the frequency of commercial contacts between Jews and Muslims combined with a general tendency to minimize the influence that classical norms had on commercial practice, to engender an environment in which the profit motive and a sense of embeddedness on the part of the Jewish mercantile class led to a uniform practice across confessional groups. Goitein also saw the habits of “Mediterranean People” as transcending geography; in discussing the application of law, he writes that “it is hardly necessary to quote Geniza texts to prove that the same law was applied to the members of one religious community throughout the Mediterranean area.” 70 Goitein saw the connection between the Jewish and Islamic communities in the domain of religious practice as more nuanced and complex than that of commerce. He sees Jews as open to Muslim practices, but not necessarily taking them on: pointing out that “Jews were . . . attracted by the teachings and the example of the great masters of the Sufi movement,” 71 he nonetheless explains that “Judaism in the East was in full decline, but it was still strong enough to repudiate pietism, which Abraham [Maimonides] tried to inject into it.” 72 Despite his general tendency to see particularism in ritual life, he acknowledges that Abraham “went so far as to introduce into the Jewish ritual certain religious practices” 73 rooted in Sufi pietism— though, once again, Goitein explains that Abraham did so by making recourse to traditional Jewish texts.74 Furthermore, Goitein’s work suggests that the penetration of Sufi practices into the Jewish community was anything but restricted to the upper echelons; his article

Historiography and the Cairo Geniza

“A Jewish Addict to Sufism” traces the experience of a Jewish bell maker named Basīr who “became infatuated with the Sufi way of life.” 75 Yet despite seeing such continuities, Goitein hardly seems to have been willing to claim that Geniza records of ritual practice might have been descriptive of practices universal among the Mediterranean People, in the same way he claims this for commerce. Goitein’s general approach in A Mediterranean Society was thus to sketch out the details describing the Jewish community from the Geniza documents that he could comfortably fit along the contours he had drawn for the “Mediterranean People.” In those areas in which his working hypothesis had led him to believe that the contours were smooth, he extrapolated from the Jewish community to the Mediterranean People as a whole. He could therefore see the commercial life of the entire middle class to be depicted in the Geniza documents. Occasionally, he would even sketch out this continuity in areas where he, generally, saw a discontinuity along confessional boundaries, such as in the case of the “usual condition” in Jewish marriage documents—though he did so there only with circumspection. The paucity of documents from the Muslim community within which the Jewish community that produced the Geniza documents was embedded made difficult the confirmation—or, for that matter, the rejection—of Goitein’s hypothesis. Nonetheless, as mentioned, Goitein admitted that the boundaries of Mediterranean peoplehood could have differed from those described by his hypothesis. Although the Geniza documents could act as a proxy for the records of the Muslim or Christian communities in certain areas of daily life, he did envision and perhaps even hope that broad applicability of the Geniza finds would eventually be established with documentary evidence from those communities. In the meantime, his model of the “Mediterranean people” allowed him to put the enormous corpus of Geniza documents to work in writing the history of a region, civilization, and “people.” The part of Goitein’s endeavor that involved extrapolating from the Geniza documents to Islamic society as a whole, particularly in the domain of economic and social life, built on his understanding of the “interplay” between Jewish and Islamic law—if not in other domains

15

16

Jewish, Islamic, or Mediterranean?

as well.76 He saw this relationship as occurring in two distinct stages, the first extending from the foundations of Islam to the ninth century, during which Islamic law flowered and coalesced into its stable form under the influence of Jewish law; and the second occurring in subsequent centuries, when the course of influence was reversed. The relationship of Jewish and Islamic law was “symbiotic” in his conception because each system benefited from the other in time, although in any given period the flow of influence was unidirectional.77 Significantly, he had a complex view of the effects of that influence. In Libson’s words, Goitein understood the “impact” of Islamic law to be felt in Jewish law “through three channels: directly, when Judaism adopted Islamic laws; indirectly, when Jewish law adapted itself to the ruling system; and in reverse, as a negative reaction to that system.” 78 Since the flow of influence or “impact” was unidirectional, Jewish life could be seen primarily as an object acted on by Islamic law and culture, rather than as a distinctive subject that might reflect norms or behaviors influencing Islamic life or might even be essentially independent from it. Goitein seems to have assumed that economic and social life presented a special case of this “impact,” taking form only in the first two of these three “channels.” That is, Jewish economic and social life drew on that of the medieval Islamic world, with Jews either adopting “Islamic” norms wholesale or adjusting “Jewish” norms to fit those of the Islamic marketplace. In support of this assumption, Goitein turned to the Arabic aphorism “al-nās bi-azmānihim ashbah minhum bi-aslāfihim” (“People resemble their contemporaries more than their own ancestors”).79 In economic life, he considered it “natural”80 that the constancy of contacts would lead to the absorption by the Jewish community of the norms of the marketplace. He may even have assumed that this “absorption” would have led Jewish legal authorities to assimilate these norms and incorporate them into their codes and responsa alike; as he notes, Hai Gaon accepts the suftaja (“order of payment”) despite an explicit talmudic prohibition,81 ruling that “I have decided to rule [concerning the suftaja] in accordance with the ‘law of the merchants’ (‘ke-mishpat ha-tagarim’), neither to add nor to take away from it.”82 The similar turn of phrase cited above from another geonic responsum,

Historiography and the Cairo Geniza

alluding to “the customary practice of merchants,”83 may have seemed to Goitein to have been sufficient evidence for a broad-based practice on the part of Jewish jurists honoring the norms of the marketplace. Seeing the practice of Jewish merchants and the geonim from whom they drew spiritual succor as conforming to the pragmatic norms of the marketplace, Goitein understood the “resemblance” between Jews and their Muslim colleagues to extend to the very details of commercial cooperation including the qirād al-gōyīm (Judeo-Arabic for a term I will translate from this point forward as “Islamic commenda”). Having seen in the Jewish community a willingness to depart from classical Jewish norms, Goitein pointed out that the terms Jewish merchants used to describe their practice happened to comport with those seen in the classical compendia of Islamic law.84 Over time, A. L. Udovitch would make explicit the connection between Islamic law and Jewish (and Muslim) practice, but Goitein saw in the flexibility of Jewish and Islamic law the opportunity for merchants to shape their economic relations according to the law of the marketplace. However, Goitein also saw areas of life that were more closely circumscribed by Jewish law, including ritual practice or family law, to bend to the practice of a Muslim population that was not only numerically superior but also culturally dominant. The subordination of Jews (and Christians) in the legal domain notwithstanding, he understood medieval Islamic civilization to be “largely secular, so that non-Muslims could feel themselves to be equal heirs to a great cultural tradition.”85 This led to the humanistic conclusion in his 1955 Jews and Arabs that Jewish participation in medieval Islamic society “must be regarded rather as contribution to human progress in general than to a specifically national culture.”86 As Mark Cohen points out in his introduction to the 2005 edition of Jews and Arabs, the book “addressed a world in which Jews lived in conflict with Arabs.” 87 Indeed, Cohen suggests that Goitein’s humanistic perspective communicated a contemporary political message. Part of this message was the “hope that integration between Jews and Arabs was yet possible . . . due to shared elements of their history.” 88 Even so, Cohen infers a second message within Jews and Arabs: unlike “modern Western civilization,” which Goitein described as “essentially at variance with the religious culture of the Jewish

17

18

Jewish, Islamic, or Mediterranean?

people,”89 Goitein saw Islam as “a recast, an enlargement of the latter. . . . Therefore, Judaism could draw freely and copiously from Muslim civilization and, at the same time, preserve its independence and integrity far more completely than it was able to do in the modern world.”90 Cohen explains that Goitein’s description of the Jews of the medieval Arab world as “thoroughly enmeshed in Arab-Islamic civilization” and therefore confidently embedded in Islamic culture was a direct critique of the “Jewish elite who sought to imbibe German culture to compensate for doubts they had about their Jewishness.” 91 Cohen traces the roots of Goitein’s view of Jewish-Muslim relations in the medieval period, uniting the political drama on the world stage that accompanied the rise of Zionism and the emergence of the State of Israel with the problems of cultural integration faced by Jews in Germany in the first half of the twentieth century. Cohen even sees Goitein’s humanistic or cosmopolitan attitude toward Jewish life in the medieval Islamic world as intensifying over time and being expanded in A Mediterranean Society, the first volume of which was published some twelve years after Jews and Arabs. In Cohen’s view, Goitein’s subtle 1955 message of Jewish independence and integrity, necessary to “[validate] the European character of Israeli society and its differentiation from the Arab world around it,” 92 had disappeared by 1967, by which time Israel had emerged on the world stage as an independent state. Cohen explains that the later work moves on from vindicating a distinctive Jewish identity: “the mixed message of Jews and Arabs is gone.”93 To support this reading, Cohen points to intercommunal connections in commerce, domestic life, and even in law, all of which are described in A Mediterranean Society. The subtle political message resident in this humanism can also be seen in the testament of Goitein’s student Eric Ormsby that “his emphasis on this profound kinship among the three faiths and their cultures arose from his fervent hope for reconciliation and peace among them.” 94 However, even though the possibility that Goitein’s historiography did develop over time should be maintained, it is equally possible that Cohen’s own view of Jewish-Muslim relations has shaded his reading of Goitein. Indeed, a close reading of Goitein’s work suggests that his approach to connections between Jews and Muslims in daily life

Historiography and the Cairo Geniza

was rather stable. Even after the publication of the first volume of A Mediterranean Society (subtitled “Economic Foundations”), Goitein persisted in explaining that Islamic legal terms cropping up in Jewish documents could assume a distinctive form in practice,95 just as the year before its publication he had affirmed that common practice in the marketplace was nothing other than a “working hypothesis,” which could only be vindicated in the future by studies of Islamic history.96 That is, Goitein did not necessarily see his further Geniza studies between 1955 and 1967 as having definitively proven his working hypothesis. Even so, if Cohen’s work is any indication, it would seem that the reception of Goitein’s work has taken as axiomatic that which the master himself only admitted as a hypothesis. When discussing Goitein’s own approach, however, it is important to return his conjecture to its rightful place as a hypothesis. At times, Goitein could find confirmation of detail he discovered in the Geniza documents in Islamic sources. However, the absence of an “Islamic Geniza” and the paucity of documentary evidence from the medieval Islamic world generally demanded of him that he turn to edited literary works for corroboration of detail seen in the Jewish documents. In using edited works, he traversed not only confessional boundaries, in accordance with his “working hypothesis,” but temporal ones as well. For instance, he adduces a high degree of specialization of labor “in the Mediterranean basin” as a whole from the great multiplicity of titles given to craftsmen, including “manufacturers of leather bottles, who had a bazaar of their own in Old Cairo” 97 seen in Geniza documents from the Jewish community. He finds confirmation of this specialization in the late-fourteenth- and early-fifteenth-century history of al-Maqrīzī, which describes some twenty-four bazaars in Cairo in the Mamlūk period,98 perhaps some two hundred years after the bulk of the Geniza documents. Goitein was indeed aware that his working hypothesis could, on occasion, lead to some untenable conclusions. Thus he writes that “timber was a very important item of export from India, but never occurs in my texts, which obviously can only mean that at that time Jews did not specialize in this commodity,”99 since one might other­ wise conclude from its absence in the documents that Egypt as a

19

20

Jewish, Islamic, or Mediterranean?

whole imported no timber in the Geniza period—a conclusion Goi­ tein would be unwilling to accept. It is unclear, however, whether he would reject this conclusion specifically because he had seen references in literary sources to the importation of timber by Muslim merchants, or simply because he sensed that such a conclusion was totally illogical within the economic environment of medieval Egypt. That is to say, his own sense of the necessities of quotidian life trumped the silence of the Geniza documents—a manifestation of what Libson calls Goitein’s “intrusion of the present on the past.” 100 Seeing himself as having once been “a thoroughly medieval man . . . [who] lived comfortably at the same time in the opposing worlds of Faith and Reason,” 101 he felt very much at home making frequent recourse to what he perceived as parallels with his own culture when he described medieval Egypt 102: “he explained his interest in the inner life of the simple Jew, even his bedroom behavior, on the basis of personal feelings.” 103 It is worthwhile, then, to look to Goitein’s biography for the humanism that pervaded his reading of the Geniza documents and his study of medieval Egypt. In his biographical sketch of Goitein, Jacob Lassner writes that he “combined his interest in Judaica with the fruits of a German secondary and university education—the kind of education that characterized German schooling before the darkness descended on that bright world.” 104 Lassner may have in mind the scientific methodology that underpinned Wissenschaft des Judentums, but his description also brings to mind the term Bildung, the development of character and Jewish acculturation to German norms through education, which the historian of German Jewry George L. Mosse describes as “a prime means through which German Jews hoped to acquire respectability in the eyes of the German educated bourgeoisie, their chosen reference group . . . a surrogate, secular faith . . . Enlightenment ideals of humanism, universalism and rationalism, the stuff of Bildung, were the very basis for Jewish existence outside of the ghetto.” 105 As sensitively explicated by Cohen and mentioned above, Jews and Arabs was a subtle rebuke to German Jews who had imbibed German culture “to compensate for doubts they had about their Jewishness.” 106 Thus, despite his apparent willingness to see disjunctions in quotidian

Historiography and the Cairo Geniza

life between the Jewish and Muslim communities, it would seem that the framework for the continuities he saw between those communities was at least influenced if not definitively shaped by both his formative years in Frankfurt and his years in the United States, during which he pursued the majority of his Geniza studies and wrote A Mediterranean Society—indeed, Miriam Frenkel writes that Goitein’s study of economic life envisioned a “free, commercial society, relying on market forces and personal initiative, exactly like the American society which Goitein had come to recognize in his adult life.” 107 An example of this phenomenon can be found in the aforementioned discussion of market specialization. Goitein explains the highly ramified markets he detected in the Geniza documents by turning to two distinct strands of reasoning: “In some occupations, it reduced the skill and technical knowledge required to a minimum, comparable to that of a modern factory laborer working on an assembly line. In others, it gave opportunity for reaching highest perfection.” 108 The first of these strands reveals Goitein’s tendency to use the structures of modern economic behavior to explain detail in the Geniza documents. This is not to say that specialization did not serve the function to which he alludes; indeed, the twelfth-century commercial handbook of al-Dimashqī explains that “due to the shortness of his days, an individual cannot learn every industry.” 109 Yet the level of specialization Goitein finds in the documents far exceeds that conceived by al-Dimashqī, despite the latter’s contemporaneity with the documents themselves.110 Rather than seeing the flexibility and opportunism that characterized traders’ behavior in choosing their investments carrying over to the domain of industrial production and commerce, which would have allowed individuals to practice their various crafts in a variety of closely related subfields, Goitein sees in the Geniza documents a specialization that modern economic theory would ascribe only to industrial economies that had reached a “threshold population,” 111 the likes of which would be seen in Europe only in the nineteenth century.112 Furthermore, there is no reason to believe that any transformation in production technology akin to what facilitated the assembly line and is seen as essential to industrialization 113 actually took place in Fātimid Egypt. Rather, Goitein’s statement that the primary benefit of

21

22

Jewish, Islamic, or Mediterranean?

specialization “reduced the skill and technical knowledge required to a minimum” describes what economists Martin Goodfriend and John McDermott call a pre-industrial “no-learning corner,” 114 indicating a situation in which a pre-industrial household specializes in production yet “devote[s] no time to devising fundamental improvements in technology.”115 The pre-industrial “no-learning corner” does not take advantage of the technical advances brought on by actual industrialization. Thus, even though specialization certainly did take place, the nature of the specialization cannot be likened to that of the assembly line, since “productivity gains during the pre-industrial period arise primarily from an ever-finer division of labor without much improvement in fundamental productive techniques themselves.” 116 Yet it is important to note the connections Goitein drew between medieval Egypt and the modern assembly line because they demonstrate his own subtle tendency to turn to twentieth-century Western culture and its institutions to elucidate that of Jewish culture in medieval Egypt instead of seeking “a chosen set of cultural attributes” 117 sought by anthropologists, or simply details within medieval Jewish culture and then using those details to describe Jewish culture on its own terms. Goitein also turned to the Jews of Yemen, the object of his early ethnographic studies, for comparisons he could draw across time. He saw the Jews of twentieth-century Yemen as the “most Jewish and most Arab of all Jews,”118 and A Mediterranean Society is peppered with parallels between the Jews of eleventh-century Egypt and the Jews he met over the course of his own ethnographic studies.119 Goitein’s tendency to see modern American and German culture reflected in medieval Jewish culture can also be seen in his description of medieval Islamic society as both “more modern than that of contemporary Europe” and “secular.” 120 He may even have seen himself in his subjects, as he described the Jews of the Geniza documents to be “Jews in the flesh, but not in the spirit. They were simply members of the vast subject population of the Middle East which was assimilated to Arab ways of thinking and expression.” 121 In his critical review of A Mediterranean Society, Haim Hillel Ben-Sasson even explains that Goitein brought “a sense of life and spiritual approaches of twentiethcentury German Jewry.” 122 Goitein’s own complex relationship with

Historiography and the Cairo Geniza

Jewish tradition can be seen as no less cosmopolitan than that of the Jews he described.123 Thus, in tandem with his own universalistic outlook, which he saw reflected in the German and American societies in which he found himself, he understood Geniza evidence concerning the Jewish community to be largely indicative of life in Fātimid Egypt in general and even the Mediterranean as a whole,124 crossing bounds of confessional community, space, and time. Goitein’s distinction between ritual law and commercial practice, then, may have reflected his experience in Germany in the early twentieth century and America in the second half of the twentieth century as much as a disciplinary distinction in the study of Middle Eastern law prominent in Bergsträsser and Schacht, among others. Indeed, the experience of Jewish political and intellectual enlightenment in Germany from the middle of the eighteenth century led to the expansion of contacts between maskilim, Enlightenment Jewish intellectuals, and the mercantile elite who sponsored and patronized them.125 Although these contacts faded toward the end of the eighteenth century,126 the period nonetheless heralded a transformation in economic life in the nineteenth and twentieth centuries producing precisely the sort of associations Goitein found in the Geniza period. Although the Haskala (Hebrew, “enlightenment”) was not the sole force behind European Jewish acculturation, and the Haskala itself was a complex phenomenon through which some Jewish intellectuals—particularly those in the early part of the movement—sought to harmonize Jewish tradition with emancipation, 127 the movement can be seen as symptomatic of a rising European secular culture. Indeed, Goitein was reared in the wake of thinkers such as Judah Leib Gordon, whose dictum “Be a man abroad, and a Jew in your tent”128 drives a wedge between behavior in the marketplace of human interactions and internal behaviors, whether the latter were influenced by Jewish “ritual practice” per se or simply represented a broader concept of Jewish cultural values. A desire to see his own environment or history in the object of his analysis is not the only possible explanation of the methodological contours of Goitein’s work. In distinguishing between ritual law and commercial practice, he may have just been implementing the

23

24

Jewish, Islamic, or Mediterranean?

methodological boundaries of the study of ritual, religion, sociology, and economics that infused his intellectual milieu. Thus, despite his description of the “medieval man” as one “for whom religion is the overriding concern in life,” 129 his understanding was that “religion formed the frame, rather than the content of daily existence.”130 Like Max Weber, then, Goitein understood religion to form the lens through which daily existence was viewed. Driving a wedge between “frame” and “content” suggests that Goitein saw a distinction between “religious” and “secular” akin to that outlined by Clifford Geertz in his analysis of Weber’s “rationalized religion,” 131 which itself also drew a line between the religious realm (that is, the domain of ritual) and that of the secular. Mapping economic and social contacts onto the “secular,” Goitein internalized an understanding of ritual as “a type of activity to be classified separately from practical, that is, technically effective, behavior.” 132 This distinction is likewise reflected in Weber’s understanding that economic life was driven by Zweckrationalität—“instrumental rationality”—and was therefore ordered and organized according to the most efficient means to achieve an instrumental objective.133 The practical dictates of the marketplace would not, then, have been seen as the province of “ritual,” or perhaps even the “consciously systematized, formal, legal-moral code consisting of ethical commands conceived to have been given to man by the divine, through prophets, holy writings, miraculous indications, and so on” 134 that Weber understands (according to Geertz) to be the primary nonmystical bridge between man and the sacred in rationalized religion. Thus Goitein would never have considered the possibility that Jewish economic actors would have used their commercial contacts to establish their communal identity, as he would have seen economic behavior as purely instrumental, directed at the profit motive. Finally, Goitein’s predisposition toward correspondence between Jews and Muslims in the cultural domain may have been a response to the “Jerusalem Historical School,” whose major exponents saw in the vicissitudes of Jewish History a single organic Jewish nation that reacted to its historical context but nonetheless maintained its fundamental unity.135 The nationalist agenda of Jews and Arabs may be

Historiography and the Cairo Geniza

seen in the context of the work of Goitein’s colleagues at the Hebrew University—Yitzhak Baer, Benzion Dinur, Haim Hillel Ben-Sasson, and Gershom Scholem—all of whom understood that “Jewish history is the story of a single, autonomous nation, comparable to that of other nations.”136 Yet with his move to the Diaspora, Goitein pursued a more integrationist agenda in A Mediterranean Society that “de-centers the Jews as the subject.”137 While the precise contours of his humanism— specifically, that commerce was an area of Jewish assimilation—cannot be explained purely as a reaction to the Jerusalem School, the role of these scholars as Goitein’s interlocutors should be considered. I have suggested a number of forces that may have led to Goitein’s humanism: the normative claims of Enlightenment politics separating commerce from religious life; a European secularism that came out of his own Bildung; an unwitting objectification of the past, seeing its reflection in contemporary German, American, or Yemenite culture; the methodological practices of the disciplines underpinning his “sociography”; and a response to the Jerusalem Historical School of Dinur, Baer, and Ben-Sasson. Whatever may have driven Goitein’s humanism, it was nonetheless sufficiently circumspect and self-aware to remain open to the possibility of Jewish distinctiveness even in those areas of most intense social and economic contact between Jews and Muslims—even if he would have seen such distinctiveness as an exception to the rule. Some of Goitein’s successors in the field of Geniza studies have understood the master to enumerate “an interdenominational story of Mediterranean and Indian Ocean traders, wage earners, and craftsmen in general.”138 Though this description of Goitein’s work does not acknowledge the hypothetical nature of that “interdenominational story,” it would seem that Goitein himself would have done so. Yet seizing on the ramifications of this hypothesis for the study of medieval Islam, ramifications that were both methodological in giving the scholar a modus operandi filling in the lacuna of documentary evidence from medieval Islamic traders with corresponding material from the Geniza, as well as political in depicting a humanistic interfaith convivencia—though significantly not a utopia—in the Fātimid Empire, some of Goitein’s successors fully embraced his hypothesis.

25

26

Jewish, Islamic, or Mediterranean?

Indeed, these scholars would integrate the hypothesis so completely as to neglect its hypothetical element, instead calling his musings that the Jewish documents described economic and social institutions and practices shared by Muslims a “bold claim” that supported the broadbased applications of Geniza study.139 The vanguard of what Cohen has dubbed the Princeton School140 is undoubtedly A. L. Udovitch, whom Cohen describes as having “showed, among other things, that prescriptions in early Islamic law regarding commercial practice, formerly thought to have been entirely theoretical, were applied in real life by Jewish merchants of the Geniza in the eleventh and twelfth centuries.” 141 In fact, as will be seen, Udovitch traced out claims that were even broader than those ascribed to him by Cohen.142 It is worthwhile noting that Cohen applies the moniker of Princeton School to those scholars who embrace the “Goitein tradition”; the ascription to Princeton and not to Goitein in specific is absolutely appropriate, since none of the six doctoral dissertations written at the University of Pennsylvania under the master’s tutelage, which used Geniza documents to illuminate life in the medieval period, 143 actually focused on Islamic economic, cultural, or social institutions.144 Rather, these dissertations examined circumscribed corpora of Geniza documents with an eye toward expanding the analyses Goitein included in A Mediterranean Society (or, in some cases, was yet to include, since the completion of the dissertation preceded publication of the relevant volume of the broader work), thereby describing medieval Jewish society in greater depth and detail. Furthermore, with the very important exception of Yedida K. Stillman, whose Arab Dress 145 was published posthumously, none of these scholars even made the mainstay of his or her scholarship the study of Islamic social, cultural, or economic institutions. It was actually North American scholars whose research was influenced by Goitein but whose dissertations were supervised by others—notably Udovitch, who wrote his dissertation under the great economic historian Robert Lopez at Yale University, and Cohen himself, who wrote his dissertation under the Jewish historian Gershon D. Cohen at the Jewish Theological Seminary, even though Goitein served on his dissertation committee—who embraced this “tradition” wholeheartedly. Udovitch came to Princeton in 1968, shortly after

Historiography and the Cairo Geniza

obtaining his Ph.D. in 1965; and Cohen came to Princeton some five years later, even before completing his Ph.D. dissertation. These two scholars would certainly have been influenced by their interactions with Goitein as junior colleagues rather than as students. Although the early work of Goitein’s advisees can be seen as projects literally required to garner his scholarly approval, the work of the Princeton School, as it emerged, can and should be seen as independent of Goitein’s own work, if nonetheless tangent to it at certain points. Therefore, a close examination of the vanguard of the Princeton School can shed light on the reception of Goitein’s work by these scholars, now senior in the field, who interacted with him during the last decade and a half of his life while he served as a long-term member of the Institute for Advanced Study in Princeton, and while they themselves taught or studied at Princeton University.

A. L. Udovitch: Vanguard of the Princeton School As noted by Cohen, it was Udovitch’s Partnership and Profit in Medieval Islam, published in 1970 by Princeton University Press, that revealed a continuity between prescriptions in Islamic legal codes concerning commercial practice and the details of actual commercial practice found in Geniza documents. Yet Udovitch makes an even more momentous claim in the work itself: One further point concerning the relationship of the Geniza documents to the Islamic legal texts should be noted. The personae of this material are almost all Jewish; yet when entering into associations even with their co-religionists, they frequently preferred contracts according to Islamic law. . . . Indeed, the Islamic commenda was much more frequently used than the commercially less flexible talmudic ‘isqa. There is also evidence for the adoption of Muslim forms of commercial activity by Christian merchants living under Muslim rule. This suggests that in Ĥanaf ī law we have the most up to date medieval Near Eastern Law Merchant that has come down to us.146

That is, surveying both Ĥanaf ī law147 and documents from Jewish traders, and finding the typical structures of commercial partnership

27

28

Jewish, Islamic, or Mediterranean?

described by these sources to be identical, Udovitch concluded that Ĥanaf ī law not only was descriptive of commercial practice but even represented a codification of that practice.148 Udovitch’s understanding that Christians took part in the very same commercial melting pot as did their Jewish fellows turns to an analysis of payment orders by the economic historian Sobhi Labib, as we may see in his claim of “evidence for the adoption of Muslim forms of commercial activity by Christian merchants.” Labib’s analysis relies on the fourteenth-century report of a Coptic monk who gave alms using orders of payment; Labib compares these orders of payment to those seen in both Islamic and Coptic legal works, concluding that “Coptic law differs little from Islamic law.” Although Labib restricts this inference to payment orders, 149 Udovitch extrapolates and relies on the seeming parallel between Labib’s conclusions concerning the Copts and his own conclusions concerning the Jews to observe that dhimmī 150 practice generally (at least, in the commercial domain) was reflected in Islamic legal codes as normative for Muslims as well. Yet he takes these connections further, extending the nexus he finds between dhimmī practice (both Jewish and Coptic) and Islamic law to Islamic practice, concluding that Ĥanaf ī law represents a “Near Eastern Law Merchant.” That is to say, finding Jewish practice to reflect institutions seen in Islamic law and reading Labib as finding Coptic practice to reflect institutions seen in Islamic law, Udovitch seems to have reasoned that Islamic practice would also have reflected those very same institutions and structures. Importantly, Udovitch brings to bear neither documentary evidence from Muslim traders nor an explicit model for extrapolating from Jewish or Coptic practice to Muslim practice in drawing such inferences. Udovitch seems to assume that no such evidence is required to support his claims; this suggests he understood the Zweckrationalität of Islamic merchants to have demanded that Muslims, like their Jew­ ish and Coptic brethren, adhere to “the customary practice of merchants” in order to take advantage of the economic opportunities of the marketplace. Surprisingly, perhaps, Udovitch vindicates this approach with recourse to Islamic legal texts and assumes these texts themselves describe a Zweckrationalität employed by all participants

Historiography and the Cairo Geniza

in the marketplace: “The early texts themselves recognize the supreme goal of commercial association as that of ‘the attainment of profit’ (taĥsīl ar-ribĥ); this was a goal shared by all merchants, regardless of madhhab, or of religious or ethnic affiliation.” 151 Having found the details of Islamic law manifest in Jewish and Coptic practice, Udovitch might have been able to make the claim that Islamic law bore a normative stamp on Islamic mercantile practice, or perhaps that a productive tension animated the relationship between mercantile practice and classical Islamic legal codes. Indeed, he explicitly considers this possibility in his 1970 article “Theory and Practice of Islamic Law: Some Evidence from the Geniza,” pointing out that “one could speculate that Ĥanaf ī law influenced later practice.” 152 However, he dismisses this possibility, noting this explanation “would not fit very well with what we know of the formation and early development of Islamic law.” 153 Specifically, Udovitch dismisses the possibility that Islamic law influenced practice because of “the absorption of foreign elements and the adaptation of pre-Islamic practices of the conquered areas.” 154 Thus his extensive discussions of ĥiyal, “legal devices,” focusing on the manner in which “commercial practice was absorbed into Ĥanaf ī law,” 155 suggest only that Islamic legal codes were shaped by practice (and, conspicuously, not the reverse). Udovitch simply dismisses the converse of his own assumption, the possibility that the legal codes influenced the practice of participants in the “Islamic” marketplace. Further, he does not seem to explore the possibility that Muslims maintained a distinctive commercial practice. Rather, bringing together his assumption of Zweckrationalität among traders with his understanding that law was shaped by practice (and not the other way around), Udovitch generally concerns himself with “the responsiveness of Ĥanaf ī law to economic needs and realities.” 156 Yet in his reading of law as responsive to economic needs, Udo­ vitch’s approach was nuanced. Contrasting sharply with his reading of Ĥanaf ī law, Udovitch concluded that Shāfi‘ī law “apparently developed entirely in disregard of economic considerations.” 157 For this reason, Udovitch attenuated the relationship of Shāfi‘ī law to commercial practice, despite the fact that the Shāfi‘ī school was dominant in Egypt during the Fātimid and Ayyūbid periods.158 Explaining that the

29

30

Jewish, Islamic, or Mediterranean?

dominant legal school held “non-economic” views, Udovitch stresses the role of Ĥanaf ī law as canonizing practice rather than ­shaping it. Just as Goitein’s hypothesis would make it possible for scholars to rely on Geniza documents as a proxy for an “Islamic Geniza,” helping them to depict Islamic social and economic history in the medieval Mediterranean, so did Udovitch’s understanding that the relationship of commercial practice to codified law was one of accommodation rather than dialogue responding to an important scholarly need. Although Goitein seems to have relied on the legal categories and analysis of Schacht that responded to the challenge of the “Skeptical Approach” to classical Islamic sources, 159 Udovitch was able to buttress Schacht’s analysis by turning to actual documentary evidence. In his dissertation research 160 Udovitch outlined the approaches to commercial partnership described by classical Ĥanaf ī, Shāfi‘ī, and Mālikī law; in Partnership and Profit in Medieval Islam, he built on his earlier research and introduced the Geniza documents as evidence that Ĥanaf ī law was not simply a “dead letter,” which proponents of the Skeptical Approach had always been able to claim. Significantly, even though Udovitch vindicated “the validity of legal material as an acceptable source for the social and economic history of Islam,” 161 he was not making the more aggressive claim that legal codes actually shaped social and economic reality, but only that law reflected this reality. Understanding “no religious or ethical value” 162 to have been attached by the medieval Islamic community to the structure or details of commercial practice, Udovitch could also argue that the bounds of commercial practice extended beyond narrow confessional boundaries to include the whole of the marketplace, and that the marketplace was unencumbered by pressure from the particularistic legal traditions of those confessional communities. Partnership and Profit does not bolster Udovitch’s conclusions that Islamic legal codes canonized the practice of Muslim merchants by turning to documentary evidence emerging from Muslim hands. Rather, Udovitch relied on the available Geniza documentary materials to describe mercantile practice as a whole. It would seem, then, that Udovitch simply internalized Goitein’s “working hypothesis.” Indeed, Udovitch’s statement excerpted above cannot be understood to say

Historiography and the Cairo Geniza

anything at all about Muslim merchants without either documentary evidence emerging from Muslim hands or a hypothesis like Goitein’s that makes for the description of Islamic practice even in the absence of such documents. Udovitch’s silence on these matters suggests he did not articulate Goitein’s hypothesis simply because he assumed it to be incontrovertibly true. Indeed, Udovitch would argue in this vein elsewhere quite explicitly. In his article “The Jews and Islam in the High Middle Ages: A Case of the Muslim View of Differences,” 163 Udovitch maintained that political and social concerns, as opposed to religious concerns, were the primary forces behind communal divisions established by medieval Islamic law and practice.164 Seeing confessional concerns as secondary in negotiating the relationship between Jews and Muslims, Udovitch follows Goitein in seeing religious “identity” in the Islamic world to be matched, if not even trumped, by “other loyalties—be they ethnic, local or national.” 165 In commerce, then, Udovitch seems to understand (as did Goitein) that an esprit de corps persisted among members of the same economic and professional grouping (to wit, merchants) despite their confessional differences. Significantly, Udovitch does consider the possibility that economic life could be a medium for expressing distinctive confessional identity in some of his other work—notably, in his anthropological study of Jews of twentieth-century Jerba, Tunisia.166 Describing a world he understood to be vastly different from medieval Egypt, Udovitch departed from the paradigm he established in Partnership and Profit in Medieval Islam. He wrote concerning the Jews of Jerba that “the marketplace is also the locus of the most frequent and varied contact between Jews and Muslims, and consequently is the area in which most important aspects of identity, self-image and mutual perceptions are defined and enacted.” 167 Indeed, The Last Arab Jews presents a paradigm much different from the one Udovitch established in his earlier work for viewing interconfessional contacts in the commercial marketplace. Thus he explains: Although the ethnic and religious boundaries separating Muslims and Jews are by no means absent or obliterated in the marketplace, it is here that the lines of demarcation are most fluid and permeable. . . . [Jerban Jews’] conception of what economic life is all about,

31

32

Jewish, Islamic, or Mediterranean?

of how it should be conducted, is shared with Jerban Muslims and, indeed, with Muslims in North Africa generally. Yet the actual shape and arrangement which these notions and practices take on are very markedly affected by their Jewish identity.168

Surprisingly, Udovitch reports that the most common form of business cooperation among the Jerban Jews was not the qirād (that is, the Islamic commenda), which he understands to be the standard form seen in the Geniza documents, but instead the talmudic ‘isqa  169—the very instrument he found to be “less flexible” than the Islamic commenda and to have been employed less commonly than the latter.170 Clearly, then, Udovitch avoided Goitein’s tendency to draw on twentieth-century anthropological research for insights into the Geniza community. Yet the humanism resident in Goitein’s work is equally apparent in Udovitch’s. Citing the disparaging attitude of Moses Maimonides toward the Jerban community, Udovitch discerns a broad-based Jewish antipathy for the confessional particularism of Jerban Jews171 and explains that their particularism was exceptional. Speaking generally, Udovitch writes, “Other Jews, especially those of North Africa, have passed through a process of secularization which, when not displacing religious practice entirely, has isolated it from other activities.” 172 Explaining that “economic life, no less than family life, was embedded in a dominant system of values and notions of sociability,” 173 Udovitch understands local practice throughout the Islamic world to reflect “shared basic cultural and social values” 174 that led to the transformation of all “those areas which were within the purview of religious courts.”175 Sharing Goitein’s humanistic strain, Udovitch lionizes the efforts of Abraham Maimonides “to absorb and Judaize all that was best in the Islamic and Greek cultural traditions to which he was exposed.” 176 Udovitch clearly thinks that the particularism for which he believes Maimonides père to have excoriated the Jews of Jerba was exceptional, perhaps throughout Jewish history in Islamic lands but certainly in North Africa from the twelfth century to the twentieth. With this humanism in mind, Udovitch could have essentially ignored or at least minimized the importance of the positionality of

Historiography and the Cairo Geniza

the Geniza writers. Indeed, it seems this is exactly what he did. For instance, his 1977 article “Formalism and Informalism in the Social and Economic Institutions of the Medieval Islamic World” 177 mentions “Jew” or “Jewish” not once,178 despite the fact that the documents Udovitch cites emerged from Jewish hands in the “Jewish” language of Judeo-Arabic. Even though some of the parties mentioned in these documents may have been Muslims, the subjects—that is, the writers and addressees of these letters—were all Jewish. This sentiment underpinning Udovitch’s writing builds on Goitein’s 1971 article “Formal Friendship in the Near East.” 179 The article, mentioned by Udovitch at the very beginning of “Formalism and Informalism,” 180 was also concerned with the (informal) structure of longstanding partnerships, both personal and economic. Prefiguring Udovitch, Goitein notes that “the social notions expressed in it, were, as a rule, not specific to any particular group.” 181 Yet Goitein nonetheless qualifies this statement by mentioning that the Geniza documents emerge (primarily) from Jewish hands, although any such acknowledgment on Udovitch’s part is strikingly absent. As Mordechai A. Friedman has pointed out, commonalities in language between the Geniza documents and the Qusayr documents are patently obvious and “mutually illuminating.”182 These commonalities suggest points of continuity in realia and worldview that permeated medieval Islamicate culture, but they need not imply that this continuity was complete across subgroups within that culture. Seemingly aware of this, Friedman points out specifically that “the Quseir collection nevertheless provides an opportunity to complement the Geniza data and test Goitein’s hypothesis on the commonality of experience.” 183 If Goitein’s picture of a medieval Jewish-Arab symbiosis was a subtle critique of his early contemporaries in Germany, Udovitch’s humanism had an equally powerful and no less contemporary message. Writing later that “the economic life of traditional Middle Eastern Societies . . . was embedded in a comprehensive social and political framework that produced similar patterns of economic activity and interaction throughout successive periods of Middle Eastern history,” 184 and editing a work entitled The Middle East: Oil, Conflict and Hope,185 Udovitch certainly saw his work, rooted in the medieval

33

34

Jewish, Islamic, or Mediterranean?

period, as bearing consequences for the politics of his time. The hopefulness of his humanism can also be seen in Udovitch’s forays into political activism: in early December 1988, he went as one of five American Jews to Stockholm to meet secretly with Palestine Liberation Organization chief Yasser Arafat in attempt “to discuss the prospects for peace in the Middle East.” 186 In the context of his activism, Udovitch’s scholarship can be seen as exactly the sort of work imagined by Cohen in outlining the potential of the Geniza to “provide a neutral ground for a scholarship of commonality that is immune from the contentious politics that often drives a wedge between” Jews and Arabs/Muslims187—although it should be clear that Udovitch’s work is hardly neutral. In Udovitch’s view, the Jerban Jews whom the elder Maimonides called “dull and coarse” 188 were an exception to the rule that the Jewish community was culturally embedded in an environment in which “as urban residents, they participated in the economic life of the Islamic world, most notably as merchants, but also as craftsmen and artisans, in the medical and related professions, and even, to some extent, as civil servants and government officials.” 189 Seeing this embeddedness playing out in shared economic practices (if not other shared practices as well), Udovitch yet held out hope for the contemporary period. It would seem, then, that despite Richard Bulliet’s declaration that Goitein’s work “misses a centralized discussion of the evident convergence of Muslim and Jewish social life in the medieval period,” 190 Goitein’s “evident convergence” was the point of departure for Udovitch, who would perhaps have seen particularism in economic behavior to be anathema to Jewish cultural embeddedness in medieval Islamic society. The positive reception by scholars of Udovitch’s own work allowed Cohen some decades later to promote the “Geniza for Islamicists,”191 and for Cohen to claim that the Princeton School had even “produced many representatives of the Goitein tradition besides Udovitch.”192 Yet the manner in which Udovitch’s successors among the Princeton School have viewed the contribution of the Geniza to the writing of medieval Islamic social and economic history differs slightly from that of Udovitch and therefore merits independent examination. Examining the reception history of Udovitch’s humanism,

Historiography and the Cairo Geniza

which joined together the concepts of embeddedness and assimilation or conformity in order to use the Geniza documents to underpin his study of economic life in the medieval Islamic world, I proceed to reveal a range of approaches to the idea of a common Jewish-Islamic economic koiné, and a concomitant range of approaches to the use of Geniza documents to describe that koiné.

Udovitch’s Successors As Cohen points out, a number of important works have emerged since Partnership and Profit that turn to Geniza documents to study Islamic social, economic, and legal history. Indeed, three of the scholars who produced such works were Udovitch’s own doctoral advisees in the Department of Near Eastern Studies at Princeton: Olivia Remie Constable, whose dissertation “At the Edge of the West: International Trade and Traders in Muslim Spain (1000–1250)” was completed in 1989; Hassan Salih Khalilieh, whose dissertation “Islamic Maritime Law and Practice During the Classical Period (200–900 A.H./815–1494 C.E.): A Study Based on Jurisprudential, Historical and Geniza Sources” was completed in 1995; and Roxani Eleni Margariti, whose dissertation “Like the Place of Congregation on Judgment Day: Maritime Trade and Urban Organization in Medieval Aden (ca. 1083–1229)” was completed in 2002. All three of these dissertations subsequently formed the foundation for important books in the field of medieval Islamic social, economic, and legal history.193 Just as the Geniza-based dissertations that Goitein supervised were reserved in their acceptance and application of his humanism, so too did the dissertations of the second generation of Udovitch’s Princeton School bear a complex relationship to their teacher’s humanistic assumptions about the commonality of practice among Jewish and Muslim merchants. Closely examining the works of these scholars makes for a detailed picture of the reception history of Goitein’s humanistic assumptions. In his analysis and history of the Princeton School, Cohen ex­ plains that Constable “combed the Geniza (with the help of Goitein’s

35

36

Jewish, Islamic, or Mediterranean?

notes . . .) and mined it for data on her subject . . . fully aware that only in the Geniza would she find documentary material from ­everyday economic life.” 194 Cohen seems to have chosen his words carefully here, because Constable explains in her introduction to Trade and Traders in Muslim Spain that “although there is some ­question as to the degree to which Geniza materials represent gen­ eral trading ­patterns in the contemporary Mediterranean, or merely Jewish trading patterns, at the very least they provide data on the ­movement of Jewish traders and their goods to and from Andalusi ports.” 195 Cohen is correct, then, that Constable relied on the Geniza documents for “data” concerning trade—though she is careful in assessing the degree to which the patterns of trade suggested by the data are general or not. Cohen is also correct that the Geniza forms the primary documentary basis for Constable’s work, though Constable also relies heavily on edited Islamic literary sources, such as the medieval trading manual of Abū al-Fadl Ja‘far al-Dimashqī,196 for the very same kind of data that emerges from the Geniza documents. Importantly, when Constable mines the Geniza documents for such data, they are often brought together with supporting information from Islamic sources, suggesting an unwillingness to accept the sort of assumptions made by Udovitch without supporting data. For example, Con­stable writes concerning the textile ‘attābī, “a heavy silk taffeta which one twelfth-century Andalusi geographer described as black and white like a zebra,” that “Geniza letters mentioned ‘attābī from ­a l-Andalus, Ibn Sa‘īd reported that it was exported from Minorca, and perhaps the baghdādī cloth which Ibn Ghālib cited in ­connection with Almeria was also this type of material.”197 Although such analyses could indeed be read as pointing to general trading patterns when Constable gleans such data from Geniza documents, she refers specifically to the merchants described in those documents as “Geniza merchants” 198 without making any such universal claims beyond the merchant community that produced the Geniza documents. Indeed, Constable remains ever open to the possibility that Jewish and Muslim trading patterns differed from one another, pointing out elsewhere that “Muslims continued to operate in Andalusi trade into the early thirteenth century,

Historiography and the Cairo Geniza

in spite of the appearance of Christian competitors and after the demise of their Jewish compatriots.”199 Constable’s openness to the possibility that the data from Geniza documents did not point to general patterns is even clearer when she moves on from outlining data concerning commodities and trade routes to describing the actual organization of economic relationships among traders. Unlike Udovitch, who projects the patterns of economic cooperation that he finds in Geniza documents onto the Muslim merchants who worked alongside Jewish Geniza merchants, Constable takes a more conservative approach. Indeed, she even leaves open the possibility that long-distance trading relationships within the Jewish community did not follow the model of the “Islamic” qirād which Udovitch sees as vindicated by the Geniza documents.200 Furthermore, even though Udovitch rarely noted the positionality of the Geniza documents and he treated Goitein’s working hypothesis expansively, Constable takes into account the possibility of differences in social organization and carefully notes when an extrapolation from the Geniza documents is only a conjecture. For example, she writes that “Jewish Andalusi merchants working abroad formed ‘a kind of closed club, known to each other’. . . . It is probable that Muslim and Christian Andalusis subscribed to a similar religious clannishness.” 201 Hassan Khalilieh undertakes an enterprise very different from Constable, in examining Islamic maritime law in great detail. Indeed, his sketch of the framework and features of Islamic maritime law, though regularly making reference to the manner in which that law was implemented by jurists, sea captains, and merchants alike, is reminiscent of Udovitch’s work in outlining Islamic partnership law. However, Khalilieh (like Constable) relies heavily on literary sources, including the tenth-century ‘Ajā’ib al-Hind (Wonders of India) of Buzurj Ibn Shahriyār, 202 of which Khalilieh says “most of his tales have a solid basis in fact and illustrate the human side of economic history.”203 Like Constable, Khalilieh seems to restrict the detail he teases out of Geniza documents to his conclusions about “Geniza merchants,” and he freely differentiates between the portrayal of navigation and maritime trade provided by classical Islamic histories and the Geniza

37

38

Jewish, Islamic, or Mediterranean?

documents. For example, he explains that fourteenth-century Islamic historians “subdivide commercial ships navigating the Nile into three subcategories,” 204 each of which served a distinct role in navigation. But he also notes that “Geniza merchants themselves remained seemingly oblivious to such distinctions.” 205 Khalilieh’s note might simply point to his understanding that maritime law and practice developed and changed over time, since the Geniza documents represent an earlier period than the fourteenth-century works of narrative history. Yet it actually seems he sensed that maritime practice among the Geniza merchants was indeed different, however subtly, from that portrayed by Islamic legal and literary sources. In this vein, Khalilieh writes that “whereas the Arabic travel accounts and historical references rarely mention the names of seagoing and river vessels, many letters about commerce from the Geniza do place great emphasis on a ship’s name.” 206 That he supports the first part of this statement with Arabic primary sources whose composition spanned from the tenth to the fourteenth centuries, 207 straddling the classical period of the Geniza documents, challenges Cohen’s statement that Khalilieh shows “how merchants’ stories recorded in the everyday correspondence of the Geniza echo principles and practices of Islamic maritime law.” 208 Khalilieh’s use of documentary evidence is actually quite conservative and nuanced: when challenging a statement of Goitein’s that he understands to be a categorical denial of the use of lifeboats on seagoing craft in the Mediterranean, 209 Khalilieh first considers the twelfthcentury traveler Ibn Jubayr, who encountered inclement weather while traveling on a Genoese vessel on 11 November 1184 and recounted that a lifeboat was readied “to remove the most important of their men, women, and effects,”210 after which Khalilieh notes, “This quotation should not be interpreted to mean that only Christian vessels were equipped with lifeboats.” 211 However, Khalilieh moves on to support this statement not only with documentary evidence from the Geniza but also with material from the travelogue of the fourteenth century Muslim traveler Ibn Battūta. Where Khalilieh finds evidence from the Geniza that challenges the depiction of maritime practice seen in Islamic legal sources, his avoidance of broad generalizations suggests one of two possibilities: first,

Historiography and the Cairo Geniza

the detail that emerges from the Geniza documents reflects a distinctive Jewish practice, shedding no light on the question of whether or not Muslim practice implemented the norms seen in the Islamic legal codes; or, second, the Geniza documents are indeed descriptive of a widespread reality, but this reality was at odds with the Islamic legal codes. However, there are clearly situations in which Khalilieh, like Constable, teases out details from Geniza documents concerning the entire merchant community; for example, he supports his statement that “each vessel had to have two mu‘allims, a chief and a vice mu‘allim” 212 with Geniza evidence alone, 213 explaining that it was “Islamic maritime practice in the Indian Ocean” 214 for ships to have two “captains.” 215 Importantly, Khalilieh clearly understands these mu‘allimūn (plural of mu‘allim) not to be (or not all to be) Jews.216 Here, Khalilieh’s method differs from that of Udovitch, who extrapolated from documents written by Jews, for Jews, and about Jews, in order to describe Muslims. Instead, Khalilieh seems to rely on Geniza testimony that explicitly describes (often in passing) Muslim commercial patterns or institutions for their descriptions of such patterns or institutions among Muslim merchants. He shares this technique with Constable. Both scholars see the Jewish “Geniza merchants” as part of the merchant community as a whole, but they carefully leave open the possibility that they maintained their own practices within the community. For example, Constable’s evidence that “tin was another Andalusi export” 217 is a Geniza document in which a merchant asks, “Perhaps you could buy me some tin.” 218 But, significantly, Constable is not claiming in such a statement that it was specifically Muslim merchants who transacted in tin; rather, she makes the more restrained claim that tin was traded. Yet commonalities in realia—for example, the fact that tin would have been used by Jews and Muslims alike—point to the central role Geniza documents may play in reading medieval Islamicate culture. As I have already mentioned, Friedman has demonstrated the importance of the Geniza documents for understanding corresponding documents emerging from Muslim hands. And it is with the work of Udovitch’s remaining Geniza student, Roxani Margariti,

39

40

Jewish, Islamic, or Mediterranean?

that the Geniza documents are used to their fullest in concert with archaeological sources and Islamic literary and documentary materials to depict the physical and human environment of the medieval port of Aden. Margariti picks up the gauntlet thrown down by Bulliet, contending that “nowhere is . . . convergence treated as a problem in itself” 219 when she asks “how can a record of evidence dominated by Jewish documentary material represent the physical and institutional realities of the city as a whole?” 220 Margariti turns to Cohen’s use of the concepts of hierarchy, marginality, and ethnic diversity in his 1994 work Under Crescent and Cross, 221 “to explain how and why the dhimmī system embedded nonMuslim groups in Muslim-ruled societies and rendered them organic parts of the whole.”222 As “organic parts of the whole,” Margariti “read[s] the Jewish merchants of the Geniza documents as representative members of a diverse commercial world and as valid witnesses of life in a diverse commercial city.” 223 Cohen’s work on embeddedness, hierarchy, and marginality can be seen, then, as providing not only a theoretical explanation to the work of earlier scholars such as Goitein and Udovitch but also the foundations on which subsequent work such as that of Margariti would depend. Thus, although Cohen might have sensed continuities in letter writing and understood these continuities also to exist at the level of quotidian behavior, and although he might even have accepted the Goitein-Udovitch hypothesis that Geniza documents could stand in the breach as a proxy for documents from Muslims, any conjecture relying on Cohen’s analysis to extrapolate from data concerning Jewish life seen in the Geniza documents to Muslim life for which no such documents existed would be inherently unfalsifiable unless such Islamic documents could indeed be found. That is to say, notwithstanding Cohen’s attempts to “construct[] a paradigm” to explain “why Jews in the Islamic world were so thoroughly immersed in the culture of their surrounding society,” 224 Cohen’s “paradigm” actually goes no farther than Goitein’s own hypothesis in justifying scholars’ practice of extrapolating from the Geniza documents to the medieval Islamic world as a whole.

Historiography and the Cairo Geniza

Despite his claim that “the Geniza itself is not just for Judaicists” 225 and his attempts to market the Geniza as an important source for students of medieval Islamic history, Cohen’s own scholarly oeuvre has not been focused on Islamic social or economic history per se. Although he seems to believe that the Geniza documents furnish details concerning Jewish life under Islam that can be extrapolated to describe the Islamic world itself, Cohen establishes his paradigm only to “explain, comparatively, why anti-Jewish hatred and violence were so much less severe in Islam than in Christendom.” 226 Yet those who rely on Jewish embeddedness to extrapolate in areas concerning specific quotidian behaviors may run into problems. Applying this method, one could conclude from Goitein’s statement that “there is in the whole of the Geniza, as far as I have read it, not a single reference to slave trade by Jews” 227 that slaves were also not traded by Muslims in the Fātimid and Ayyūbid empires, despite the prominence of slaves in historical and documentary sources from this period. The working hypothesis would have led the historian into manifest error but for the happy accident of the sources that militate against the application of the hypothesis. Indeed, Cohen’s work might encourage a causal connection be­t ween “embeddedness” and the “fusion” of cultural practices, but it could equally be used to support the contention that Jews and Muslims developed divergent practices in order to maintain their own sense of ethnic identity. Such practices could even have augmented the dhimma “system,” which Cohen acknowledges to have been only part of the behavioral constructs that “reinforced ethnicity and regulated relations with other ethnic groups.”228 In the next section, I discuss an alternative to this “fusion” that nonetheless accepts Cohen’s vision of Jewish “embeddedness” in the medieval Islamic world.

An Alternative: Embeddedness Without Humanism If the “humanistic” approach has relied primarily on the hopes of scholars rather than on actual documentary evidence revealing a commonality of practice between Jews and Muslims, then the possibility

41

42

Jewish, Islamic, or Mediterranean?

of relaxing this humanistic assumption should be considered, as well as the ramifications of doing so for the study of medieval Jewish and Islamic social history. The convenience of the humanistic approach cannot be gainsaid, though it is not clear that the boundaries or contours of this approach are native to the societies being examined. That is, it is not clear without Goitein’s historiographical assumption (which itself, once again, may well be rooted in the contemporary studies of Max Weber and not in the history of the medieval Islamic world) why one would assume a commonality of practice in the domain of commerce but not in the domain of devotional prayer. Yet no scholar would claim that Jewish prayer texts would be indistinguishable from those used by Muslims.229 Relaxing this assumption can allow an alternative to emerge that explains the connections between Jewish and Islamic cultures and accounts for the extant data no less effectively than Goitein’s model, which makes this weighty assumption. Just such an alternative is outlined in greater detail further on in this book, but the alternative also bears mention here in its generalities to demonstrate that the potential for using Geniza documents for the study of Islamic social history does not rely on or require Goitein’s humanistic assumption. Indeed, a brief study of the concept of cultural embeddedness and the use of this concept by scholars examining Jewish communities in other locales and in other periods reveals that embeddedness need not imply a commonality of practice among subgroups. An example of this phenomenon can actually be found in Udovitch’s own work, as his study of the Jerban Jewish community found particularism amidst a deep cultural embeddedness in its broader Islamic environment. However, Frederik Barth’s work on ethnicity and Clifford Geertz’s work on social organization, both of which are used by Cohen, 230 suggest that the very sort of behavioral distinctions seen in Jerba could contribute to Jewish ethnic identity, even in an environment of cultural embeddedness and “a modern vestige of classical Jewish-Arab interethnic coexistence.” 231 In such an environment, Cohen explains that “external signs such as distinctive clothing . . . enforced their ethnic and religious identity.” 232 Barth’s work suggests that the existence of such cultural signifiers can be predicted a priori, though he does not specify (nor does Cohen’s use

Historiography and the Cairo Geniza

of Barth’s work help specify) the behavioral areas in which those distinctive cultural signifiers might be found. Although Margariti’s work seems to have understood embeddedness as leading to fusion in social and economic behavior, important case studies of Jewish life both within and outside the Islamic world reveal that embeddedness can and should be viewed as independent of any specific points of commonality or divergence between minorities and the majority cultures that host them. Exploring some of these case studies underscores the independence of embeddedness and the “fusion” of behavioral norms and, by extension, problematizes Goitein’s working hypothesis. The “shared cultural values” Bernard Lewis saw in the JudeoIslamic symbiosis can be viewed through Barth’s analysis of “the emergence of boundaries” to suggest that embeddedness need not mean a commonality of practice. Robert Bonfil’s study of Jewish life in Renaissance Italy233 sheds light on this point. Bonfil challenges what he calls a “traditional historiography,” explaining that “since they were necessary to the economies of the Italian cities, the Jews were integrated fairly easily into the socioeconomic fabric of these econ­ omies. An accelerated process of acculturation inevitably followed, a process that the modern eye can only interpret in terms of cultural assimilation.” 234 Responding to this historiography, Bonfil warns that one should “be extremely careful not to interpret the various expressions of cul­tural interaction between Jews and Christians as a result of the alleged high level of social integration, or to present them as manifestations of Jewish assimilation.” 235 That is to say, Bonfil is prepared (and rightly so) to disconnect “integration” or “embeddedness” from “fusion” or “assimilation.” His discussion of cultural practices common to Christian and Jewish society in Italy in the fifteenth and sixteenth centuries is reminiscent of Lewis’s description of the shared study of grammar among Muslims and Jews in the medieval period.236 Yet, avoiding the pitfalls of other historians who (understanding “em­bedded­ness” to imply “assimilation”) understand the commonality between Christian and Jewish society to exist at the level of behavioral content, Bonfil adduces shared structures, which manifest as slightly different behaviors in each confessional community.

43

44

Jewish, Islamic, or Mediterranean?

A case study from within the Islamic world sharpens this point: Abraham Marcus’s study of eighteenth-century Aleppo237 highlights the role that differentiation played in the establishment and maintenance of ethnic boundaries. Marcus writes that “while they resented the official restrictions, the non-Muslims had no interest in becoming indistinguishable from the majority.”238 On the contrary, Marcus explains that these boundaries “were so clearly drawn and religious beliefs so little open to debate that people could associate freely in various spheres without compromise.” 239 Rather than leading to an environment of fusion or assimilation, the “symbiosis” manifest in the Aleppine Jewish community engendered cultural signifiers which were prominent and distinctive. These distinctive behaviors were manifest among minority communities that were in fact highly embedded in their Islamic milieu, as Marcus demonstrates: Sharing a common cultural heritage, Muslims, Christians, and Jews were hardly strangers to each other. Their religions, based as they were on many of the same traditions, instilled in them similar visions and social ideas. They also shared much of the same repertoire of attitudes, tastes, superstitions, and prejudices that made up the contemporary urban culture.240

Along with Udovitch’s study of Jerban Jewry, these two case studies suggest that the “shared language, shared culture, and shared history”241 understood by Margariti to have underpinned Jewish-Muslim relations in the medieval Islamic world need not have implied “similar and in several instances interchangeable business and legal practices.”242 Goitein seems to have been somewhat aware of this in enumerating the various and disparate ways in which Jewish law responded when coming into contact with Islamic law.243 Unfortunately, the circumspection with which he viewed his own practice of history writing seem to have been let go by some of his scholarly descendants who have used the Geniza as a major source of Islamic history. Bulliet’s statement that “I felt on finishing [Goitein’s A Mediterranean Society] that I had learned more about medieval Islamic society than I had from any other single book”244 attests to the great value in exploring the vast breadth and depth of the Geniza corpus, but as Bulliet

Historiography and the Cairo Geniza

seems to understand, the Geniza can be used effectively only after the problem of “convergence” has been addressed “as a problem in itself.” The analysis in this chapter has endeavored to demonstrate that this problem has relied on a solution that is tentative at best, and, in light of the case studies presented here, is perhaps worthy of review and revision. The Geniza documents attest both to behaviors and to “attitudes, tastes, superstitions, and prejudices,” yet as Marcus suggests, convergence of ideas need not imply common behaviors. A model for cultural embeddedness without the humanistic assumption of a commonality of practice could look to a commonality in attitudes and tastes rather than a commonality of behavior, understanding that the specific manifestations of behavior could differ from one subgroup to another. Thus, in his description of an emerging secular trend in Jewish and Christian society in Italy, Bonfil explains: The cultural identity of the Christians could be constructed along the lines of gradual detachment from the field of religion in the proper sense of the word, without necessarily endangering their Christian identity. Things were quite different in the case of the Jews. Jewish otherness was essentially a matter of religious belief, so that any cultural deviation from a religiously based culture would have immediately put their Jewish identity in crisis.245

That is, the identity politics of Christian and Jewish society made for different behavioral manifestations of secularism: “the Christians marched on toward modernity separating secular thought from the strictly religious sphere, [while] the Jews continued to follow the opposite course: that of an ever closer link between secularization and religious expression.”246 Yet both groups absorbed secularist ideas. A model akin to Bonfil’s addressing the problem of convergence in renaissance Italy could perhaps be applied fruitfully in the study of the medieval Islamic world.

45

46

Jewish, Islamic, or Mediterranean?

The Emergence of Documentary Evidence to Support Goitein’s “Working Hypothesis” Any solution to the problem of convergence that uses the documentary evidence of the Geniza as a proxy for the missing documentary evidence from the medieval Islamic world is, by definition, unfalsifiable. That is, if such documentary evidence were to be found, there would no longer be any need for the Geniza documents to be used as a proxy for such evidence.247 Further, even documentary evidence indicating convergence in one area of social or economic life is not sufficient proof for predicting such convergence in other aspects of interconfessional connections. If the surviving written correspondence from Islamic hands was indeed rich and varied, scholars such as Margariti might have been expected to rely on such correspondence rather than on Geniza materials, or at least to have made recourse to this correspondence wherever it might have supported the conclusions derived from Geniza correspondence. In the domain of commerce and trade, a number of collections of papyrus and paper have been examined by scholars, including business letters transcribed and translated by Werner Diem 248 and the merchant’s archive from the Red Sea port of Qusayr al-Qadīm that Cohen has dubbed a “geniza.” 249 Yet Cohen focuses only on linguistic and philological correspondences when discussing the relationship between Geniza documents and the documents brought to light by Diem when he writes that “[Diem] discovered Goitein and the Geniza and the usefulness of Judaeo-Arabic for deciphering and understanding letters of medieval Muslims.” 250 That Margariti does not even list Diem’s work with business letters in her bibliography suggests that those letters would not in fact have contributed to her discussion of the structures and institutions of the twelfth-century India trade. Margariti does say that “comparison of the Cairo Geniza documents with the Qusayr material is instructive,” 251 but how she finds it instructive is in “the mechanics of commercial record keeping and on the linguistic specificities of merchants’ writings.” 252 Although the Qusayr corpus would be ideal for confirming the central methodological hypothesis underpinning her work, Margariti does not shed

Historiography and the Cairo Geniza

much ink demonstrating the “typicality” of economic relationships and structures seen in the Qusayr documents. However, the fragmentary state of the vast majority of the thirty-seven “commercial letters” Li Guo transcribes and translates among his editions of the Qusayr documents253 and the scant information they provide concerning the actual organization of trade, as opposed to the commodities traded, suggests that the Qusayr corpus cannot provide adequate evidence for any declaration as sweeping as Cohen’s alluding to “typicality.” In his review of Guo’s work, Friedman does indeed demonstrate the usefulness of each of these corpora of documents for understanding the other.254 But Friedman is nonetheless careful to avoid making a definitive pronouncement that Jewish and Muslim commercial practices were completely identical.255 That legal documents supply specific detail into the organization of trade and economic life in general that is visible in letters only by inference and interpretation is discussed elsewhere in this book, but it bears mention here because the Qusayr “geniza” contains no such legal documents. This makes the venture of comparison even more speculative than if one were to rely only on the presence of common words despite Goitein’s caveat that such words could have a distinctive meaning within the Jewish community.256 Geniza scholars attempting to portray the medieval Islamic world may have avoided the particularistic Jewish legal documents out of a sense of humanism and hopefulness. However, such documents are actually the most effective tool for understanding how Jewish economic actors themselves understood their business relationships to have been structured, rather than how modern scholars would like for them to have been structured. In the following chapters, then, I expand the corpora reviewed by scholars such as Udovitch. I explore the mercantile relationships of the Jews of medieval Egypt through the legal documents of the Cairo Geniza, discussing in depth the nature, structure, and significance of these relations in the economic and social ideational universe of the writers of these documents. This sort of detailed discussion allows me to revisit the scholarly understanding of Jewish “typicality,” and I explore the possibility that economic life was a vehicle for the establishment and maintenance of Jewish identity, much as Bonfil and

47

48

Jewish, Islamic, or Mediterranean?

Marcus view other aspects of quotidian life as vehicles for the expression of Jewish identity in other locales and periods. Such an analysis, of course, sets the problem of convergence in relief, and I offer a possible solution to the problem that accounts for the rich insights of the legal documents as well as the letters examined by other scholars. My solution ultimately relies on Bonfil’s analysis, taking advantage of the flexibility it offers in understanding the points of connection between subcultures to be at the level of ideas rather than behaviors, avoiding the weighty assumption that embeddedness implies assimilation. This allows the documentary production of the Jewish community to be read holistically, on its own terms and for the data it provides, instead of forcing the researcher to read into the lines of every Geniza letter the details of Islamic partnership law, which may well have been of little interest to Jewish merchants and traders whose counterparties were Jewish, whose agreements were initiated and maintained in Jewish courts, and whose commercial practice may well have been structured to express an affinity for or even loyalty to the rules and norms of Jewish law.

Tw o  

Partnership as Culture Jewish Law and Jewish Life

In the first chapter, I examined the efforts of a number of important scholars to describe the daily life of Jews in Islamic lands in the medieval period and the connections that the daily life of those Jews might have had with that of the Muslims in whose midst the Jews found themselves. My analysis there, as in this chapter, focuses on mercantile cooperation as one aspect of daily life that has received special treatment by scholars. A number of these scholars, the principal exemplars of the Princeton School, assumed that Jewish merchants followed the common practices of a broad marketplace, which included both Jews and Muslims. This assumption was animated by a number of factors: first, a need (particularly in light of the paucity of other documentary sources) to use the documents of the Cairo Geniza as a tool for describing the medieval Islamic world as a whole; second, an approach that saw commercial activity as driven by the search for profit; and, third, a humanistic viewpoint that understood the Jewish writers of the Geniza documents to have been motivated by a sense of common identity extending beyond narrow confessional boundaries. Even though most of the documents of the Geniza were written by Jews and those that involve commerce generally concern commerce transacted by Jews and between Jews,1 these scholars rejected a Jewish particularism. They did not examine the possibility that the Geniza merchants followed practices identifiable as specifically “Jewish” either because they reflected the norms seen in classical Jewish legal codes or because they were reminiscent of other behaviors also recognizable as distinctly “Jewish” as opposed to “Islamic.”

49

50

Partnership as Culture

In the current chapter, I challenge the Princeton School’s fundamental assumption. The new data that my study brings to the fore emerge from legal documents from the Geniza, a relatively underserved area of Geniza study where business partnerships are concerned. Legal documents make for a very different picture of commercial cooperation than do letters, which were the mainstay of Goitein, Udovitch, and their methodological successors. A starting point of my analysis is a survey of data from the legal documents in light of classical Jewish and Islamic legal sources of the period that tests the robustness of Udovitch’s statement that “when entering into associations even with their co-religionists, they [Jewish merchants] frequently preferred contracts according to Islamic law.” 2 Indeed, I show that the structures of economic cooperation employed by Jewish merchants actually often deviated from the models for such cooperation presented by the classical compendia of Islamic law. Unhitching Jewish commercial practice from Islamic law also challenges the humanistic assumption of the Princeton School, whose exponents understood economic life to be an area of shared practice between Jewish and Muslim merchants. These scholars understood Islamic law to have been a reflection of actual commercial practice,3 and so my conclusion that Jewish merchants strayed from Islamic law drives a wedge between the commercial behavior of the Geniza merchants and that of their Islamic fellows. Indeed, in light of my conclusion that Jewish merchants relied on models of commercial cooperation that were suggestive of the norms and structures of Jewish law instead of Islamic law, the only way to maintain the Princeton School’s humanistic assumption would be to conclude that it was Jewish law and not Islamic law that was the medieval Islamic world’s “Law Merchant.” These scholars would be unlikely to accept such a conclusion. As discussed in the previous chapter, doing so would also necessarily vitiate Udovitch’s important challenge to the Skeptical Approach to classical Islamic sources, were Udovitch forced to argue that Jewish law and not Islamic law described mercantile behavior in the medieval Islamic world as a whole. In this chapter, I survey legal documents from the Geniza not only to identify the central structures of economic cooperation but

Jewish Law and Jewish Life

also to show how these documents can shed light on more than economic cooperation when seen in the broader context of Jewish life in the medieval Islamic world. I aim at the anthropologist’s task of “partak[ing] of concepts that extend across many domains of social life.” 4 I begin by identifying the economic structures seen in the Geniza documents and then use these structures to illuminate the central ideas that motivate them and the corresponding concepts that infuse other aspects of the daily life of the Jewish community of medieval Egypt. In so doing, I am able to depict what the anthropologist Lawrence Rosen calls “an entire ethos in the complex exchange of shells.”5 That is, the Jewish community’s economic relations will be seen as emblematic of its interpersonal relationships in general. By revealing how the central concerns of Jewish merchants in their economic life also reflect concerns in other aspects of their lives, I show commercial relationships to be a microcosm of Jewish society in medieval Egypt. Hence, I have chosen to call this chapter “Partnership as Culture.” Searching for continuities across behavioral domains, I reveal commercial and industrial partnerships to share common features with partnerships in the ownership of property (“proprietary partnerships”), marital relationships, and even covenantal partnership relations between humans and God, as described in edited medieval Jewish literary sources and in Geniza documents alike. These diverse forms of partnership share a number of features, such as rituals of initiation and dissolution. Thus, although each type of partnership might have a slightly different initiation ritual, the common reliance on initiation rituals suggests that they are important in the mind-set of the Jewish community. Where those initiation rituals are regularly followed—and particularly where corresponding initiation rituals are not required by Islamic law—Jewish merchants can be said to be engaging in a practice they felt to be distinctively “Jewish.” Finding Jewish merchants engaged in such practices, I show economic life to have been a forum for identity formation and maintenance. This sort of analysis should interest not only historians of Jewish life in medieval Egypt but also those who focus on Jewish life in other periods or geographical locales (or, indeed, on identity formation among subgroups

51

52

Partnership as Culture

generally) who may not yet have seen the potential for economic life to reveal identity-producing behavior. The assumption that economic life is not an area of Jewish distinctiveness has served the Princeton School extremely well. Indeed, it has allowed scholars to use the documents to shed light on Islamic social and economic history, an area otherwise largely obscured by the dearth of documents that have come down to us from Islamic hands. However, my discovery of possible discontinuities between the mercantile practice of Jews and Muslims challenges the dominant paradigm modeling Jewish-Muslim social and economic relations, calling for an alternative paradigm that explains these relations. In the words of Thomas Kuhn: Discovery commences with the awareness of anomaly, i.e., with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science. It then continues with a more or less extended exploration of that area of anomaly. And it closes only when the paradigm theory has been adjusted so that the anomalous has become the expected.6

The regnant paradigm has understood commercial life to bear “no religious or ethical value.”7 Yet the Geniza evidence I bring in this chapter challenges this idea and therefore the paradigm relying on it, hence producing the very sort of “awareness of anomaly” with which Kuhn is concerned. The boundary maintenance function is seen as precisely the sort of “religious or ethical value” denied economic life by my predecessors. This chapter, therefore, upends the humanistic assumption that the specific behaviors seen in the Geniza documents are actually descriptive of the medieval Islamic community as a whole. This is not to say that the Geniza documents cannot continue to be employed as a source for Islamic social history, but only that the humanistic paradigm must be either modified or replaced by an alternative paradigm of Jewish-Muslim relations that can account for the possibility that at least a stratum of Jews, whose documentary evidence is preserved in the Geniza corpus, maintained a distinctive mercantile practice in the medieval Islamic world. In Chapter 4, I propose just such a paradigm that accounts for the conclusions of this chapter

Jewish Law and Jewish Life

yet nonetheless maintains primacy of place of the Geniza documents as one of the most important sources for the study of daily life in the medieval Islamic world. That is to say, I propose in this book what I hope social historians of the medieval Islamic world will find to be a meaningful and innovative solution to the problem of “convergence” highlighted by Richard Bulliet some three decades ago.8

Previous Studies of Mercantile Cooperation: A Focus on “Informalism” This study is not, of course, the first attempt to describe the deep structure of economic relationships among the community that produced the Geniza documents. Goitein and Udovitch, whose historiographical approach was discussed extensively in the first chapter, established the groundwork for the field of medieval Islamic and Jewish economic history using the Geniza; and their work led to a number of other significant studies that took these initial forays into new directions. However, one central question that animates nearly all of these studies from Goitein’s initial forays onward is the role of “informalism” in commercial partnerships. Goitein and Udovitch developed the idea that mercantile cooperation was largely informal and dependent on interpersonal ties between individuals. The economist Avner Greif expanded on the idea of informalism, claiming that Jewish merchants did not need to rely on formal legal agreements, but he also challenged his predecessors’ understanding that mercantile ties were necessarily personal. The past decade has also seen challenges to this concept from Moshe Gil and Jessica Goldberg. In this section, I outline the scholarly debate concerning formalism and informalism in mercantile relationships, and I also suggest how this emphasis is off the mark. In my detailed study of Geniza evidence further on in the chapter, I transcend the formalism-informalism debate by showing how merchants relied on both formal and informal commercial ties. As I mentioned in the previous chapter, Goitein himself was a pioneer in the study of social history through the “documentary Geniza,” and his work provides an excellent starting point for the study of

53

54

Partnership as Culture

mercantile partnerships. In 1971, he composed a brief diachronic study entitled “Formal Friendship in the Medieval Near East” 9 in which he traced the roots of suĥba, or “formal friendship,” from biblical literature through the sixteenth century. He found the most important economic relationships of the Geniza culture to follow this model, 10 which he described as simultaneously structured and unstructured: the suĥba was a relationship “formally concluded and formally dissolved” though “the words used in the correspondence were terms of friendship rather than business.” 11 Yet the actual tasks that made up the content of the relationship were highly variable, and the bounds of the relationship extended well beyond the favors each sāĥib (JudeoArabic, “friend” or “associate”) would perform for his fellow, acting “for him not merely as legal and business representative, but as his confidant in every respect. The list of services to be rendered by a sāĥib was interminable.” 12 In A Mediterranean Society, Goitein details some of these mutual services, demonstrating the great breadth of the range of informal commercial cooperation, but he also furnishes some detail concerning more structured mercantile partnerships.13 Despite this, he seems to have understood long-distance economic relationships largely to have avoided the formal legal system and instead to have been simply one facet of the complex ties that bound individuals together as formal friends and business partners alike. Building on Goitein’s work, Udovitch’s 1977 article “Formalism and Informalism in the Social and Economic Institutions of the Medieval Islamic World” 14 examined the letters of the “merchantbanker, scholar, and communal leader” 15 Nahray b. Nissim in order to describe the essence of commercial relationships in the classical period of the Geniza, finding these relationships to rely heavily on the model of formal friendship. Udovitch added nuance to Goitein’s depiction by explaining that not only were “relationships . . . flexible, open-ended obligations that are unquantified and probably unquantifiable,” but also that “the intensity of the personal guarantee and the consequent degree of personal trust could vary between individuals.” 16 Udovitch’s linking of the commercial and the interpersonal domains supports this analysis. This allowed Udovitch to sketch out a “life cycle” of sorts of a formal friendship: like any sort of human relationship, individuals had

Jewish Law and Jewish Life

to “work hard at creating a reputation of competence and reliability.” 17 Building just such a reputation would have been particularly important at the beginning of a relationship, as fellow merchants developed a sense of intimacy. Reading Udovitch’s analysis, one could conclude that in the initial stages of a relationship mentors or others might have to intervene as patrons to assure an individual that a potential “friend” was indeed trustworthy and reliable. Yet “once mutual trust and guarantee were established, the informal business cooperation that ensued constituted an open-ended relationship.” 18 That is to say, relationships were understood to be “dyadic,” between two individuals. Each individual sat at the center of a web of relationships that were “highly individual and nontransitive” 19 and (as also explained by Goitein) encompassed “intertwined personal and commercial ties.” 20 The personal and informal ties Udovitch found in the Geniza contrasted sharply with earlier depictions of commercial life in the medieval Islamic city. Earlier models of commercial cooperation in the medieval Islamic city had sought to “include Middle Eastern guilds and those of different countries in Europe at different times within the framework of a common term.” 21 That is to say, Udovitch’s focus on informal transactions as the mainstay of commercial cooperation was a corrective to a field in which scholars had sought to impose the model of the formal European guild on the medieval Islamic world. His writing about formalism and informalism should therefore be seen as a response to these earlier conceptions of the medieval Islamic city that had been imported from the study of medieval Europe, 22 as well as an attempt to paint a broad cultural picture of the city emerging from the letters of the Geniza. Udovitch’s contribution to the study of mercantile cooperation, finding economic partnership relations in Islamic urban society to have been contracted and maintained through informal rather than formal means, has been understood as but one example of a broad pattern of urban life. Thus Udovitch’s successors have understood his conclusions as carrying over into corollary domains; three decades after Udovitch’s article, Margariti alludes to a “general picture of informality of trading mechanisms in the medieval Middle Eastern world.” 23

55

56

Partnership as Culture

Udovitch’s (and Goitein’s) reliance on informal ties has been put to good use in subsequent studies. Just over a decade after Udovitch’s afore­mentioned article, the economist Avner Greif followed in Udo­ vitch’s footsteps in turning to a corpus of Geniza letters with an eye toward examining commercial cooperation.24 Like Udovitch, Greif emphasized the importance of interpersonal relationships in maintaining distant agents’ trustworthiness and accountability. His 1989 doctoral dissertation, completed in the Department of Economics at Northwestern University, developed further Udovitch’s theory that personal guarantee and trust, instead of formal contracts and the court mechanism, controlled trade relations. Greif revealed that traders’ letters periodically described their dissatisfaction with a distant agent’s performance, and that this dissatisfaction resulted in the agent being punished through denial of future opportunities to do business with his erstwhile fellow. Yet Greif moved beyond Udovitch in describing a “multilateral punishment mechanism” whereby merchants acted as a coalition, punishing as a group any coalition member who misbehaved and avoiding any future transactions with him. Thus Udovitch’s “dyadic” ties were taken by Greif actually to be “multilateral.” Greif saw the Geniza letters not only as communications between two individuals reflecting their opinions about one another but also as communiqués passing on information about third parties unrelated to any particular transaction involving either the writer of the letter or its recipient. In this manner, Greif saw the social function of letters as resources disseminating information to an entire group about the individual members of that group. Udovitch saw traders as developing and maintaining bilateral (dyadic) relations, through which each individual could be seen as the focal point from which many dyadic ties extended outward. But Greif saw these relationships—or, at least, the punishment mechanism that governed the relationships—to be multilateral. That is, whereas a principal-agent relationship was maintained at the level of the node, between those two individuals, a principal would express his dissatisfaction with any particular agent in his letters to his other associates, and this dissatisfaction would thereby be communicated to the group as a whole. According to Greif, those associates would show common cause with their fellow by shunning

Jewish Law and Jewish Life

the agent, agreeing never to employ an agent who cheated while operating for any coalition member. In an environment in which the legal system was expensive, slow, or generally inaccessible, this multilateral punishment mechanism could constitute a framework making for an economically efficient wage and providing the agent with a very powerful disincentive to cheat. Greif’s work demonstrated that this punishment mechanism was economically efficient and did not even require the intervention of an organized legal system in order to ensure distant merchants’ dependability and faithfulness in commercial relations. This work contributed greatly to the developing field of “lawlessness and economics.” 25 There have been some rejoinders to his work, but they have come from the field of institutional economics26 and primarily not from historians of the medieval Jewish or Islamic milieux 27—although the tide has shifted somewhat with the work of Jessica Goldberg, who has demonstrated regular reliance, and perhaps even a preference, on the part of Jewish merchants for formal contracts.28 Greif does not extend his depiction of commercial cooperation to other aspects of daily life, but the centrality of interpersonal ties and the lack of reliance on communitywide formal institutions such as legal courts suggests a continuity with Udovitch’s work in understanding the mind-set of the community of traders whose lives he wishes to depict and the “informal” nature of their ties. Greif’s model of agency relations turned to the multilateral punishment mechanism rather than the legal system as the merchant community’s tool for sanctioning agents who cheated. To support his model, he sought evidence of “implicit contracts” between principals and agents in the Geniza letters, as well as detailed Geniza evidence reflecting that multilateral punishment. A brief example from Greif will suffice: Around 1055 it became known in Fustat that Abun Ben Zedaka, an agent who lived in Jerusalem, embezzled the money of a Maghribi trader. The response of the Maghribi traders was to cease any commercial relations with him. His bitter letter indicates that merchants as far away as Sicily had ostracized him. Only after a compromise was

57

58

Partnership as Culture

achieved and he had compensated the offended merchant were commercial relations with him resumed.29

With information in letters about agents’ behavior playing a central role in monitoring and controlling that behavior, Greif followed Udovitch in seeing trade in the medieval Islamic Mediterranean to be organized primarily around informal agency relations rather than around instruments of formal partnership. However, rather than Udo­vitch’s “personal guarantee,” centered around bilateral relations, Greif saw multilateral relations among a somewhat tight-knit group of eleventh-century traders, whom (following Goitein) he calls the Maghribis, placing the ancestral center of their network nominally in the Maghreb (that is, northwest Africa), though he seems unwilling to describe this as a subculture per se and he rejects Werner Sombart’s reliance on relationships within “natural groups.” Greif argues that there was some sense of connection and esprit de corps among these traders, a sense prefigured by Udovitch’s allusion to “the network of informal business cooperation which is referred to with great frequency and the term is simply asĥābunā, our colleagues.”30 Further supporting Greif’s analysis is his claim that evidence of cooperation with non-Maghribi traders by members of this group is rare, and that connections within the group were often sustained for multiple generations, whereas Udovitch described these connections as intensely personal and noninheritable. Yet not every scholar of mercantile cooperation among the Jews of the medieval Islamic Mediterranean envisioned the same sort of informal cooperation championed by Udovitch and Greif. Moshe Gil returned to the topic of commercial partnerships in publishing transcriptions and translations (into Hebrew) of a massive corpus of traders’ letters,31 bringing to light much detail concerning formal partnerships, although as with his predecessors Gil’s work focuses on epistolary material. Given the forays of his predecessors in describing commercial cooperation, Gil’s conclusions should be seen as radical and surprising; he writes that “letters written by merchants in [my] collection give the overall impression that all of the transactions were carried out by partnerships.” 32 He further emphasizes that “all partnerships were based on a deed.” 33 Although Gil’s study focused

Jewish Law and Jewish Life

only on the details of mercantile cooperation and not on the broader aspects of Jewish cultural life of which those details of commercial life might be emblematic, his study is interesting because it suggested that formal modes of cooperation in trade did indeed play a significant role in the economic life of the Jewish community. Recently, Jessica Goldberg has presented a significant rebuttal to Udovitch, starting with Gil’s collection of transcriptions of merchant correspondence to produce a “typology” of letter writing within the Geniza.34 Her method involves analyzing the amount of space given over in letters to one type of transaction or another. Like Udovitch, she concludes that “the balance between transactions done in partnership and transactions done for a single individual tilts largely in favor of transactions done for individuals, whether the number of transactions is considered or the space devoted to them.” 35 Providing further detail, she adds, “For the content in which ownership is clear, 75 percent of transaction text involves goods belonging to an individual, while some 25 percent involves goods in a partnership.”36 It would seem, then, that despite the apparent prominence of informalism in commercial relationships, the quantitative documentary evidence aggregated over a large pool of letters37 also suggests a persistent and even important role for “formal” partnership. Goldberg’s assessment of the share of transactions managed through formal partnerships far exceeds what is suggested by Udovitch’s statement that only one out of twenty commercial contacts appearing in a letter of Nahray b. Nissim (shelf mark Bodl MS Heb d 75.20) actually “concern[ed] a formal business relationship, the nineteen others are all informal.” 38 The disparity between these two figures may rest on a methodological choice: although Goldberg’s quantitative analysis describes only those transactions “for which the ownership is clear” either as an agency commission (that is, in this context, an informal transaction) or as a partnership transaction (a formal transaction), Udovitch seems to describe all transactions that are not explicitly formal as informal, regardless of whether the precise ownership of the commodity to be traded is clear. Thus many of the transactions Udovitch describes as “favors” may actually have been tasks fulfilled by a distant merchant subject to the provisions of a formal “partnership.” Yet even Udovitch

59

60

Partnership as Culture

would admit that close formal friends who maintained longstanding mercantile ties with one another would periodically turn to structured partnership, if only rarely.39 Udovitch’s detailed work on partnership does present an account of how informal modes of commercial cooperation served to meet the needs of Jewish traders, but the paradigm it outlines describing relationships that develop over time from the formal (as merchants’ sense of mutual trust is in its infancy while they get to know one another) to the informal (once mutual trust has blossomed) is challenged even by his own finding that one in twenty transactions was formal. Indeed, the model of interpersonal and commercial ties emerging from Udovitch’s work cannot explain why any such formal business relationships would be employed whatsoever by two business associates whose relationship was already “very close and intimate,” 40 even if the merchants themselves were still only “in the early and vigorous state of their careers.” 41 Goldberg’s findings challenge Udovitch’s account further as they reveal an even more numerically prominent role for the very sort of partnership transactions Udovitch would have deemed formal, though they also challenge Gil’s understanding that formal partnership was the dominant mode of commercial cooperation. In the present chapter, I explain the persistence of both formal and informal modes of cooperation even between associates whose relationship had already developed into one of deep-seated mutual trust. In so doing, I propose a new model in this chapter for the ebb and flow of partnership relations between merchants, cutting the Gordian Knot of formalism and informalism and explaining the persistence of both sorts of economic institutions in the medieval Islamic city.

Informal vs. Structured: Commerce and Law “Informal” hardly means “anarchic,” and Udovitch’s understanding that informal relationships were the dominant form of commercial cooperation did not prevent him from weighing in on the important issue of what sort of structured features economic cooperation would take on. Indeed, Goitein, Udovitch, and Greif all considered this

Jewish Law and Jewish Life

question, drawing connections between the details of commercial cooperation and the models for commercial life established by one community or another. For Goitein and Udovitch, the Jewish community relied heavily on the models also seen in Islamic law, while Greif saw merchants’ expectations as set by the local subgroup of merchants and therefore to have been distinguishable from competing sets of norms such as Jewish and Islamic law. In this section, I highlight what I believe to be a methodological limitation in earlier studies of commercial cooperation that have focused on Geniza documents: the near absence of legal documents in the documentary corpora underlying those studies. To address this limitation, I devote much of the later part of this chapter to challenging the connections these scholars have drawn between commerce and law by turning to legal documents from the Geniza corpus extensively. In my analysis, I suggest that Jewish merchants actually drew upon the commercial models seen in the classical compendia of Jewish law. To review: Udovitch’s reading of Geniza documents led him to conclude that Jewish merchants managed their relationships according to the features found in the classical compendia of Ĥanaf ī law. Envisioning this as the law of the marketplace, he dubbed Ĥanaf ī law a “medieval Islamic Law Merchant.” Goitein, too, understood Islamic law to play an important part in the management of the Jewish marketplace. Like Goitein and Udovitch, Greif understood the bounds of mercantile behavior to be defined by the norms of the commercial environment, but he defined that “environment” as the specific coalition of merchants who would then proceed to enforce those behavioral expectations as a coalition. Typical allocations of profits and losses from trading, the divisions of responsibility and labor, and the definition of cheating would all be determined locally, by members of the coalition. Greif dubbed the medieval Islamic environment in which the eleventh-century Maghribi traders found themselves to be “collectivist,” by which he meant that [i]n collectivist societies the social structure is “segregated” in the sense that each individual socially and economically interacts mainly with members of a specific religious, ethnic, or familial group in which contract enforcement is achieved through “informal” economic and

61

62

Partnership as Culture

social institutions, and members of collectivist societies feel involved in the lives of other members of the group.42

Within the Geniza society, Greif saw the Maghribi traders as a distinctive subgroup—a conclusion certainly supported by Udovitch’s observation that personal and mercantile contacts were often bound together in a single Geniza letter. Yet this segregation meant that the group’s behavioral expectations were also bound together and highly localized. Thus Greif focused greatly on how individuals could become acculturated to the norms of the group, explaining, “Once these expectations were formed . . . only descendants of Maghribis were perceived by others as members, and hence only they could become members.”43 Attaching behavioral norms to a distinctive group identity suggests that the ultimate source of those norms could not be Islamic (or Jewish) law generally, but rather it must have been the specific behavioral norms explicitly understood by the members of the subgroup. For Greif, the form and the content of mercantile relationships are linked: for the coalition to succeed, it must define and transmit its own distinctive set of behavioral expectations. Greif’s model for commercial cooperation represented not only a sea change from the model of dyadic ties envisioned by Udovitch but also a new approach to the specific content of those ties shifting away from Islamic law and toward localized subgroup norms. Although both Gil and Goldberg have asserted a significant role for formalized partnership, neither scholar has evaluated the relationship between the content of partnerships—formal or informal—and the canonical sources of Jewish and Islamic law. Gil did explore the structure of the partnership instrument referred to as a “mu‘āmala” in Judeo-Arabic,44 but his analysis makes no effort to place Jewish partnership practice in the context of the competing legal sources to which the Geniza merchants might have been exposed. Likewise, Goldberg’s survey of the language used by letter writers distinguishes between various forms of agency and partnership but does not draw connections between these forms and the legal sources that may (or may not) have influenced them.45 Yet one common thread among all these studies is their overwhelming focus on the epistolary corpus of the documentary Geniza,

Jewish Law and Jewish Life

to the exclusion of legal documents from the Geniza. Although letters might contain sufficient detail to determine whether an item is held in partnership between two merchants or whether it was accepted by a merchant as an agency commission, they generally do not allow the researcher to ascertain the fine details that make up actual partnership agreements. This limits the contemporary reader’s ability to determine what sort of behavioral expectations might have governed the commercial arrangement. Greif’s specific interest was not in the content of those behavioral expectations per se, but only in the mechanism through which those behavioral expectations were enforced; Goitein and Udovitch relied overwhelmingly on the general detail from letters for their conclusion that commercial cooperation relied on structures seen in Islamic law. In the material that follows, I introduce legal documents concerning commercial cooperation—partnership agreements, release agreements, agency appointment documents, court reports, and the like— in order to reexamine the connections between commerce and law among the Jewish community of medieval Egypt. Legal documents have become an important area of Geniza study,46 but where commerce is concerned they are somewhat underexplored territory; even though there are a number of significant exceptions, it seems that “the distance with which courts and lawyers are viewed in Western culture” 47 has caused scholars to deemphasize the documentary production of the legal aspects of commerce in favor of personal letters. Scholars may also have simply deemed it unnecessary to attend to boring legal documents when personal letters did much of the work of such documents; indeed, Udovitch understood business correspondence found in personal letters even to have been a “substitute for business contracts and agreements.” 48 In contrast, in this chapter I give a close reading of the Geniza evidence, focusing particularly on legal documents, in order to reveal the central structures of mercantile cooperation as well as the how those central structures reflect the Geniza culture generally. As I have intimated, this close reading shows the aforementioned debate on formalism and informalism to be off the mark. Turning to these legal documents also allows me to challenge Udovitch’s understanding (discussed in Chapter 1) that

63

64

Partnership as Culture

Jewish merchants preferred to structure their contractual partnerships according to Islamic law. Indeed, I demonstrate that a significant number of Geniza documents describe partnerships whose characteristics resonate with Jewish legal norms even where those norms explicitly contravene Islamic legal norms. Finally, as mentioned, the characteristics of the partnerships described by the Geniza evidence are shown to reflect a set of distinctive Jewish cultural ideas that cuts across domains. Thus the choice of Jewish merchants to structure their economic relations in a manner that reflects these distinctive cultural ideas should be seen as the manifestation of these distinctive cultural ideas in economic life. Since the legal documents of the Geniza concerning commerce have gotten relatively short shrift among contemporary scholars (notwithstanding the aforementioned significant exceptions),49 much of the documentary evidence underpinning the analysis to come has never seen the light of publication. In preparing my analysis, I made recourse to more than one hundred heretofore unpublished legal documents concerned with commercial partnerships from the major collections of Geniza documents. I have cited these documents in the notes when necessary, but the reader may wish to access the language of the documents directly. To this end, I have included at the end of the book an appendix providing actual transcriptions and translations of fifteen legal documents from the Geniza concerning mercantile partnership relations. Because I reevaluate the connections between the behavior of Jewish merchants and Jewish and Islamic legal traditions in this chapter, the section that follows introduces the reader to the key figures and sources of medieval Jewish and Islamic law. Thereafter, I turn to detailed discussion of the Geniza documents themselves.

The Primary Strands of the Jewish and Islamic Legal Traditions In this section, I briefly introduce the Jewish and Islamic legal traditions—particularly the individual jurists, literary genres, and legal

Jewish Law and Jewish Life

sources featured in the detailed discussion that follows. The published literature on this material is obviously immense, and the reader may wish to consult it. However, the sketch offered here should identify for the reader some salient details concerning a number of the primary exponents and sources of Jewish law and Islamic law that come into relief in the subsequent discussion—which would not be accessible to the reader from a simple table of abbreviations. Following my discussion of the Jewish and Islamic legal traditions, I introduce very briefly a pair of modern scholarly Geniza studies that attempt to shed light on moments in the legal history of the Jewish community in the lands of Islam by bringing together documentary evidence. In the analysis that follows, I rely on this evidence extensively.

Jewish Law Jewish legal sources used in my analysis of Jewish partnership law fall into a number of distinct genres: classical rabbinic sources; ­geonic monographs (including formularies), comprehensive codes, and re­ sponsa; and postgeonic medieval materials, most prominently Moses Maimonides’ Mishneh Torah, responsa, and commentary on the Mishna. The principal collections of rabbinic legal material—the Mishna, To­ sefta, and the Talmuds, as well as the classical collections of midrash halakha—do not include topically organized sections of material devoted specifically to an analysis of the law of mercantile cooperation. Nonetheless, such material can be found dispersed throughout these sources; and where such material appears, there is no reason to ­believe that the material in the rabbinic literature of late antiquity did not influence subsequent Jewish legal literature. But it would be an anachronism or perhaps simply pious fantasy to suggest that rabbinic literature was descriptive of the state of Jewish law half a millennium or more after the redaction of the rabbinic sources; semantic shift and changing economic realities meant not only that Jewish legal authorities of the medieval period would not necessarily even have understood the linguistic referents of earlier rabbinic literature but also that the vicissitudes of history would have led subsequent authorities to take advantage of legislative means to depart from talmudic

65

66

Partnership as Culture

law.50 Nonetheless, despite the ineluctability of legal change, medieval Jewish jurists sought to maintain a sense of continuity with their predecessors. As Menachem Elon writes: The very nature, as well as the binding force, of Jewish law derives from its continuity—the chain of tradition from generation to generation. Every rule or norm added to the corpus of the law by means of any of the halakhic legal sources is effective because it draws its sustenance from the Written Law and the Oral Law.51

Innovations can be and were therefore couched in the form, exegetical methodology, and substance of earlier materials.52 Therefore, even in studying the medieval period, some attention must be given to tannaitic materials, particularly the Mishna and Tosefta—both of which may be ascribed roughly to the third century ce—as well as to the Palestinian and Babylonian Talmuds, the redaction of which may be ascribed to the fifth century and the sixth and seventh centuries, respectively. These sources are followed chronologically by geonic compendia, which emerge in the wake of the redaction of the Babylonian Talmud. These compendia include the ninth-century Halakhot Gedolot, written in Aramaic and attributed to one Simeon Qayyara, who apparently came from Basra in Iraq. Drawing heavily on its predecessor Halakhot Pesuqot, attributed to Yehudai Gaon (d. 761 ce), this work was widely used in various ways by important Babylonian geonic authorities.53 Perhaps the most prominent of these authorities was the Suran gaon Sa‘adya b. Joseph (882–942 ce), who left the Fayyūm province of Egypt for Tiberias and eventually settled in Baghdad.54 Sa‘adya Gaon helped foster a geonic tradition of halakhic monographs on specific legal topics which, according to Robert Brody, “differed in kind from anything previously seen of rabbinic literature.” 55 One such monograph (in Brody’s estimation, Sa‘adya’s most ambitious) is Kitāb al-Shahāda wa-al-Wathā’iq (Book of Testimony and Legal Documents), written in Judeo-Arabic.56 This work is an expansive formulary that may have been used by court scribes in the Mediterranean diaspora who wished to study the laws of legal documents. Sa‘adya’s later successor Samuel b. Ĥofni (d. 1013 ce), who came to serve as gaon of

Jewish Law and Jewish Life

the Suran academy less than a decade after its reconstruction in 987 ce, developed the literary tradition of composing halakhic monographs to which Sa‘adya contributed, composing approximately fortyfive monographs on a broad range of subjects.57 Among these is Kitāb al-Sharika wa-al-Mudāraba (Book of Partnerships and Commenda), extant fragments of which have been published by Israel Friedländer and B. Z. Lewin.58 Samuel seems to have counted among his supporters many intimates of the ‘Abbāsid court, notably Jewish court bankers who may have been descended from the famous Netira family.59 David Sklare’s study of Samuel points out that “the most profound manifestation of Samuel ben Ĥofni’s exposure to Arabic culture was his absorption of Mu‘tazilī Kalām as his epistemological and theological framework,” 60 but Samuel’s work also includes both formal and substantive parallels with the contemporary Islamic legal literature.61 Particularly important for the material discussed in this chapter is Gideon Libson’s insight that “it seems possible that Shmuel ben Hofni’s reference to agency in connection to surety law . . . may relate to an Islamic context.” 62 At least in matters concerning mercantile cooperation, then, the possibility must be considered that Islamic legal material found its way into Samuel’s halakhic monographs, perhaps by way of the institution of custom.63 For much of his tenure at the Suran academy, Samuel’s opposite number in the Pumbeditan academy was Hai b. Sherira (b. 939 ce; r. 1004–1038 ce),64 who also happened to be Samuel’s son-in-law. Hai’s Kitāb al-Shirā’ wa-al-Buyū‘ (Book of Purchase and Sale) is widely represented among the Judeo-Arabic fragments of the Geniza and has also been translated extensively into Hebrew; another of Hai’s works is his Book of Documents, primarily known from its Hebrew translation (that is, as Sefer ha-Shetarot) but also extant in a few Judeo-Arabic Geniza fragments (and published by Simĥa Assaf).65 Hai’s life marked the twilight of the geonic period; he may even have been the last gaon of the Pumbeditan academy. Abraham Ibn Daud’s twelfth-century chronicle of the rabbinic tradition, Sefer ha-Qabbala, records that the rise of talmudic scholarship in the Mediterranean diaspora (and particularly in Iberia) led to a decline of Babylonian spiritual hegemony. In his account, the captive

67

68

Partnership as Culture

Rabbi Moses b. Enoch was redeemed by the Jewish community of Cordoba, which eventually discovered his great learning and subsequently appointed him master of the local academy.66 Although Ibn Daud’s sacred history is rife with embellishments and hyperbole, its claim that toward the end of the tenth century “all questions which had formerly been addressed to the academies”67 found their way westward, to Cordoba, is certainly suggestive that the spiritual influence of the Babylonian geonim as typified by their production of a rich and widely disseminated responsa literature gave way to authorities in the Mediterranean diaspora in the tenth and eleventh centuries. The geonic responsa that emerge from the heyday of Babylonian and Palestinian authority, prior to and contemporary with the expansion of the diaspora community, must be read for the important contributions they can make to understanding the commercial life of the Jewish community of the Mediterranean diaspora as well as contemporaneous geonic readings of Jewish law. To this end, I discuss the major published collections of geonic responsa in addition to the aforementioned geonic monographs and codified material. The degeneration of geonic hegemony and the concomitant rise of local centers of study in the Mediterranean led to the proliferation of “marked differences in laws and customs” in local diaspora communities.68 Isaac b. Jacob Alfasi (1013–1103 ce) filled a void in terms of halakhic authority, composing a work of halakhot—discursive legal interpretations and decisions69—entitled Halakhot Rabbati, that strove to resolve some halakhic disputes authoritatively and also to facilitate talmudic study generally. Alfasi studied in the Qayrawānese academy of Ĥananel b. Ĥushiel and settled in Fez, though he fled to the Andalusian Jewish center of Lucena in 1088 ce after being denounced by his enemies. The arrangement of material in Alfasi’s work (which follows the Babylonian Talmud) as well as the work’s frequent citation of material from both Talmuds earned Halakhot Rabbati the epithet “Talmud Qatan” (Hebrew, “Little Talmud”). The success of Halakhot Rabbati, a work that maintained the structure and form of the Talmud yet aimed to provide definitive rulings to the Talmud’s meandering arguments, seems to point to an emerging sense that “in the search for a clear legal rule in the dense foliage in

Jewish Law and Jewish Life

the Talmud, there is a risk that something will be misunderstood and an improper distinction will be made.” 70 This concern deepened over the course of the eleventh and twelfth centuries. From this environment emerged the Mishneh Torah of Moses Maimonides (1138–1204 ce), which avoids the discursive and analytical model of halakhot generally retained by Alfasi in favor of pesaqim, rulings. Maimonides is famously explicit in his introduction to the Mishneh Torah that “a person will not need to have recourse to any other work to ascertain any of the laws of Israel.”71 As such, Maimonides claimed that his work conserved and preserved the tradition up to his time.72 The aforementioned factors of semantic shift and changing social and economic realities would have naturally affected Maimonides’ reading of his sources, and his reading of those sources certainly differed from the meaning of those texts in their late antique context. Yet Maimonides’ introduction to his code (at least) suggests that he did not take it upon himself consciously to reform Jewish law so much as to restructure and preserve it. Maimonides acts as an eisegete, reading the realia of his period into his talmudic and geonic sources. His desire to preserve the law and give it continued relevance would have led him to rule in consonance with his reading of the earlier sources rather than doing violence to those sources as he understood them. Since law might generally be described as an autoregressive social process—that is to say, the present state of affairs is most closely defined by the immediate past—the temporal and geographic proximity of Maimonides’ code to the individuals who composed the Geniza documents as well as the absence of explicit statements from Maimonides that he intended to reform the law suggests that the Mishneh Torah may be used as a proxy for how Maimonides’ direct rabbinic predecessors and his contemporaries in positions of rabbinic legal authority might have understood classical rabbinic and geonic materials even prior to the composition and dissemination of the Mishneh Torah. Thus, though the Mishneh Torah was composed contemporaneous with or even subsequent to many of the legal documents found in the Geniza, Maimonides’ work can be used to represent the juristic mind-set of the period and the legal environment of which he was an exceptionally brilliant exponent. His responsa

69

70

Partnership as Culture

also shed light both on contemporary realia and, obviously, on how Maimonides negotiated that realia in making legal decisions. Two other Jewish legal authorities bear mention here because of their contributions to the Jewish legal literature. The first of these, Judah b. Barzillai al-Bargeloni, was in Barcelona in the late eleventh and early twelfth centuries; his work draws heavily on the halakhot of Alfasi.73 Al-Bargeloni’s compendium of civil law, Sefer ha-Din, includes a formulary published a number of times independently under the title Sefer ha-Shetarot.74 The second authority, Isaac b. Abba Mari of Marseilles (ca. 1120–1190 ce), composed his Sefer ha-‘Ittur in a manner that restructured Jewish law no less than his younger contemporary Maimonides: Sefer ha-‘Ittur organizes halakhic material under alphabetical topic headings. Significantly, Sefer ha-‘Ittur often engages Alfasi’s Halakhot Rabbati and geonic materials as well as classical rabbinic materials. Additionally, the narrative material in the sections of the work that deal with legal documents is often supplemented with an archetypal formula, and so this work should be examined along with the other aforementioned formularies.75

Islamic Law The breadth of Islamic expansion from the seventh century onward, as well as the range of cultures and legal environments that the emerging Islamic community encountered, led Islamic practice to grow in due course over a number of centuries from a nascent local tradition situated in the Arabian Peninsula to accommodate extensive variations across a huge geographic expanse. Yet these variations were not simply regional. Interaction with local cultures led to differences both substantive and methodological, but the Prophet’s companions and followers also maintained distinctive traditions and approaches to the textual sources of Islamic law as it developed. Over time, adherents of these distinctive traditions and approaches developed allegiances to their particular exponents, and what may have begun as disciple circles eventually developed into a number of discernible legal schools.76 These schools differed in terms of the content of positive law (furū‘ al-fiqh) and of analytical methodology (usūl al-fiqh). Contemporary

Jewish Law and Jewish Life

scholars of Islamic law generally focus on four of these legal schools that later emerged as dominant, dubbed the Ĥanaf ī, Ĥanbalī, Mālikī, and Shāfi‘ī schools after the jurists to whom the schools putatively ascribe their approaches. However, the youngest of the eponyms of these four schools, Aĥmad b. Ĥanbal (d. 855 ce), was known for his extreme legal conservatism and unvarying reliance on citation of textual sources rather than exegesis of those sources per se in his opinions. Therefore, some medieval scholars ignored this school when discussing comparative jurisprudence, Muĥammad b. Jarīr al-Tabarī (838–923 ce) being a particularly prominent example in composing his Ikhtilāf al-fuqahā’ without reference to the Ĥanbalī school. Udovitch follows this practice when he begins his own introduction to Islamic law in Partnership and Profit in Medieval Islam with a discussion of some of the major compendia of the Ĥanaf ī, Mālikī, and Shāfi‘ī schools, leaving off the Ĥanbalī school.77 Since the analysis he provides in that work supplies much detail as to the opinions of the primary exponents of Islamic law from these schools, my own background sketch of these figures will be somewhat brief. However, I do mention some of the most important compendia of positive law from each of these schools, as well as several works from the formulary literature that are important for understanding the implementation of Islamic law in the high middle ages. In addition to the scholastic literature emerging from one or another school among the four “orthodox” schools of Sunnī Islamic law, I add a brief introduction to a couple of prominent works of comparative medieval Islamic law bearing important witness to the range of opinions that might have been in the intellectual ambit of the writers of the Geniza documents, including one work of the so-called Zāhirī school, whose jurisprudential method was quite different from the other primary schools of law and which can be thought of as located on the periphery of the four “orthodox” schools of Sunnī jurisprudence. In Partnership and Profit in Medieval Islam, Udovitch turned to a number of published compendia from important Ĥanaf ī, Mālikī, and Shāfi‘ī authorities. These compendia underpin my discussion as well, though Udovitch also used two manuscripts of Kitāb alAsl of Muhammad b. al-Ĥasan al-Shaybānī (749–805 ce)

71

72

Partnership as Culture

concerning the laws of partnership and commenda that I am unable to access at present. Unfortunately, the published editions of Kitāb al-Asl leave off Shaybānī’s material on partnerships and commenda. However, Kitāb al-Mabsūt of Muhammad b. Ahmad al-Sarakhsī (d. ca. 1090 ce) is a commentary on the mukhtasar (epitome) of Muĥammad b. Muĥammad al-Marwazī (d. 945 ce), which itself relies on the work of Shaybānī. Although Sarakhsī lived in Transoxania and not the Mediterranean and his work “draws on the independent Transoxanian Ĥanaf ī tradition,” 78 Udovitch found this compendium to be the “most extensive treatment of the subjects in Ĥanaf ī law” 79 and therefore useful for outlining the approach of Ĥanaf ī law to mercantile cooperation, particularly in the eleventh century. My study also refers periodically to the popular legal epitome of Ahmad b. Muhammad al-Qudūrī (972–1037 ce); Qudūrī was the primary exponent of the Ĥanaf ī school in Iraq of his period. As Udovitch mentions, the legal flexibility of the Ĥanaf ī school and Ĥanaf ī jurists’ focus on ra’y (Arabic, “independent reasoning”) and istiĥsān (Arabic, “juristic preference”) made it possible for Ĥanaf ī law to incorporate “the custom of the merchants,” bridging the gap between legal theory and the practice of the marketplace.80 Udovitch describes al-Muwatta’ of Mālik b. Anas (ca. 708–795 ce) as “the earliest extant work of Islamic law.” 81 Mālik is the eponym of the Mālikī school of law, which claims its roots in the practice of the Muslims of Mālik’s birthplace, Medina. Indeed, one of the sources of Mālikī law is said to be ‘amal ahl al-Madīna, the “practice of the people of Medina.” Udovitch points out that al-Muwatta’ includes a substantial treatment of the investment partnership or commenda, but it does not contain an independent section on the law of ordinary partnerships. Although the Mālikī school has its putative origins in the East (that is, in the Arabian Peninsula), the eastern branch of Mālikī law seems to have waned in the eleventh century. However, the Mālikī school made inroads into North Africa from as early as the ninth century and also came to dominate Andalusian Islamic jurisprudence. Mālik is understood to have taught Muhammad b. Idrīs al-Shāfi‘ī (767–820 ce) for about ten years. Subsequent to his Medinan period, Shāfi‘ī is said to have lived in Iraq (where he visited

Jewish Law and Jewish Life

the aforementioned Ĥanaf ī jurist Shaybānī) and eventually to have settled in Egypt. Shāfi‘ī’s teaching had an important impact on early Islamic jurisprudence in Egypt; Shāfi‘ī jurisprudence emerged as a distinctive school of law and came to displace the Mālikī school in Egypt toward the end of Shāfi‘ī’s life—indeed, Shāfi‘ī himself may have died at the hands of a fanatical Mālikī.82 Shāfi‘ī’s primary surviving work of furū‘ al-fiqh (Arabic, “positive law”) is Kitāb al-Umm. In his survey of Islamic partnership law, Udovitch avoids discussing the Ĥanbalī and Zāhirī schools, “because no systematic treatises of th[ese schools] exist for the early period.”83 Despite this, it is worthwhile mentioning Kitāb al-Muĥallā of the Cordoban jurist ‘Alī b. Ahmad Ibn Ĥazm (994–1064 ce), who is perhaps the most prominent exponent of the Zāhirī school. This school is best known for eschewing the interpretive tool of qiyās (Arabic, “analogy”) and for limiting the scope of ijmā‘ (Arabic, “communal consensus”) by focusing on the consensus of the Companions of the Prophet rather than on the consensus of subsequent Islamic communities (as do Mālikī jurists in turning to the practice of Medina). Kitāb al-Muĥallā is not only a compendium of Zāhirī law but it also often recapitulates the opinions of the scholars of other schools; to this end, Kitāb al-Muĥallā can be used as a work of comparative law. Although Ibn Ĥazm’s digest of positive law as laid out by other scholars is secondhand testimony to these scholars’ own views likely colored by Ibn Ĥazm’s desire to defend the Zāhirī school, the work is proximate both geographically and temporally to the composition of the Geniza documents, and the details included therein should therefore be considered in the ideational universe of Islamic legal authorities of the period. Another important work of comparative law that I include in the fol­ lowing discussion is Kitāb Bidāyat al-Mujtahid by the Mālikī scholar Muhammad b. Ahmad Ibn Rushd (“Averroes,” 1126–1196 ce). Like Ibn Ĥazm, Ibn Rushd was born in Cordova. Although Ibn Rushd’s philosophical works are perhaps better known than his legal writings, Kitāb Bidāyat al-Mujtahid is a detailed compendium recapitulating Ĥanaf ī, Mālikī, and Shāfi‘ī law, often outlining the sources of disagreement between these schools. As a narrative work of fiqh, it is

73

74

Partnership as Culture

more discursive than al-Muwatta’, the latter being more conservative than analytical and systematic. Islamic jurists, like their Jewish counterparts, composed a number of works that contained formulary material. I incorporate this material in my discussion in order to narrow any perceived gap between the theoretical discussion of a few legal scholars and the practice of court scribes who may have studied the formulary literature in order to practice their trade. The Egyptian jurist Ahmad b. Muhammad al-Tahāwī (d. 933 ce) composed three formularies, a “greater” (Kitāb al-Shurūt al-Kabīr), a “middle” (Kitāb al-Shurūt al-Awsat), and a “lesser” (Kitāb al-Shurūt al-Saghīr), which are important early treatises on the composition of documents. Parts of the greater and all of the lesser are currently extant in manuscripts and have been published, the former in Western scholarly editions. Taĥāwī contributed to the development of the Ĥanaf ī school in Egypt, and material from his formularies was incorporated into subsequent compendia of a number of important Ĥanaf ī jurists. In this discussion, the Mālikī formulary tradition is represented by the work of Ahmad b. Mughīth al-Tūlaytulī (d. 1067 ce), whose al-Muqni‘ fī ‘Ilm al-Shurūt provides basic introductions and formulary exemplars for ordinary partnership and investment partnership/commenda alike. Finally, I will turn to formulae written by the Cairene Mamlūk polymath Ahmad b. ‘Abd al-Wahhāb al-Nuwayrī (1279–1333 ce) as exemplifying Shāfi‘ī jurisprudence. These formulae can be found in Nuwayrī’s monumental encyclopedia, entitled Nihāyat al-Arab fī Funūn al-Adab.

Geniza Studies The classical edited Jewish and Islamic legal formularies are augmented in this study by Gershon Weiss’s attempts to reconstruct “formulary manuals” of the eleventh- and twelfth-century Jewish court scribes Hillel b. ‘Eli and Ĥalfōn b. Manasseh;84 as well as the eleventhcentury legal documents of the Jewish community of Lucena published by Joseph Rivlin.85 The scribal traditions that these scholarly studies reflect are used to identify yet another register of Jewish writing: unlike the edited Jewish legal compendia or even the exemplars

Jewish Law and Jewish Life

in the edited Jewish formulary literature, Weiss’s and Rivlin’s efforts bring together actual documents that emerged from the hands of scribes in the period.

Partnership as Culture: The Voice of the Legal Documents The legal documents from the Geniza open up a heretofore largely unexplored universe of data about the nature and structure of mercantile partnerships. But it is my assertion in this chapter that the data in the legal documents speak about more than commerce. How the Jewish merchants whose record is retained in the Geniza chose to collaborate and manage their economic relationships is actually representative of how these merchants (and, by extension, the Jewish community at large) managed and structured all their relationships. In the balance of the chapter, I review the evidence from the Geniza documents and attempt to draw out how this evidence speaks to broader cultural concepts that reached across domains within the Jewish community. Since mercantile cooperation is the point of departure for this discussion, I structure my discussion around the key aspects of mercantile cooperation that emerge from the documents themselves. The questions surrounding mercantile cooperation that surface in the documents are, perhaps, fundamental to any cooperative enterprise: With whom can one cooperate? What role does each individual play in the cooperative enterprise? How exactly are these roles communicated to and understood by the participants? What sort of latitude do participants have in carrying out their respective roles? What if one or more of the participants violate the terms of the enterprise? How do unforeseen events affect the cooperative enterprise? How are proceeds—whether they reflect profits or losses—to be divided among the participants? What if one or more of the participants wishes to terminate the relationship? Jewish law and Islamic law both respond in detail to all these questions and more; and detail from the Geniza documents weighs in on them as well. But rather than trudging through Maimonides’ Mishneh Torah or Sarakhsī’s Kitāb al-Mabsūt

75

76

Partnership as Culture

and illuminating the points of connection or contrast with the Geniza documents, I instead turn to the Geniza documents directly to give voice to the motifs central to mercantile cooperation. These motifs form the headings for the subsections in the rest of the chapter. In brief, these motifs are treatment of common capital (“Bailment vs. Ownership”), initiation rituals (“Executing the Qinyan”), defining and managing participants’ behavior (“Discretion and Its Limits”), the treatment of gains and losses (“Liability for Loss and Eligibility for Profit”), termination and settlement of accounts (“Deposing Before God”), and the management of uncertainty (“Trust, Malfeasance, and Suboptimal Risk Taking”). Discussing each of the motifs in turn, I expose the harmony or disharmony of corresponding ideas in the legal literature with those motifs. To provide the reader with a narrative line, I arrange these motifs around the biblical verses Exodus 22:6–7: When a man gives money or goods to another for safekeeping, and they are stolen from the man’s house—if the thief is caught, he shall pay double; if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other’s property.

Although these verses are devoted to bailment rather than mercantile partnership in their biblical context,86 they nonetheless address an ongoing cooperative relationship (as opposed to a transactional relationship, such as a sale) between counterparties, and so these verses may be used to highlight the concerns surrounding mercantile cooperation that the Geniza documents call to mind. Bailment amounts to a close and meaningful proxy for commercial partnerships, which seem to be absent from the Bible as such. Indeed, it would seem that detailed notions of mercantile cooperation have yet to flower even in late antiquity; when rabbinic sources such as the Mishna and Tosefta describe paradigmatic “partners” (Mishnaic Hebrew, “shutafin”), they refer not to mercantile partners but to proprietary partners, owning an item (such as a courtyard) in common—while mercantile partners actually transact on each other’s behalf with shared capital. Yet rabbinic sources do reveal an emerging conception of commercial cooperation: for example, the Mishna describes “partnerships” in commonly owned produce (Mishna

Jewish Law and Jewish Life

Terumot 3:3), a slave (Mishna Pesaĥim 8:1), or a courtyard (Mishna Bava Batra 1:1). The Tosefta does allude to a partnership in a store (Tosefta Demai 3:8, Tosefta Terumot 10:9), but early rabbinic (that is, tannaitic) sources nonetheless do not seem to have a distinct term for mercantile partners. Rather, the Tosefta mentions “two [individuals] who put [money] in a common purse—one of whom put a maneh (one hundred zuz) and the other two hundred [zuz], and they engage in business (Hebrew, ‘praqmatya’)” (Tosefta Ketubbot 10:4). Corresponding material in the Mishna also mentions “three (individuals) who put (money) in a common purse” (Mishna Ketubbot 10:4). Although there may not be a specific term for partners, the notions of bailment to which the Bible alludes do develop into a structured typology from the earliest stages of rabbinic literature.87 Thus, once again, biblical verses concerning bailment are a convenient proxy to organize the discussion of commercial cooperation, since the latter is itself only embryonic in early rabbinic sources. Whereas the agricultural economy of the Land of Israel in late antiquity may not have encouraged the extensive development of commercial law, the subsequent urbanization understood by many scholars to have taken place in Babylonia over the first few centuries of Islamic rule may have encouraged its development in the Babylonian Talmud and geonic literature. Further support for recourse to bailment in order to understand mercantile cooperation comes from much later formulations of Jewish law, as the legal foundations of partnership law are drawn in part from the law of bailment. Additionally, the law of agency commission—a close cousin to commercial partnership—comes to rely on the law of bailment. Maimonides juxtaposes agency commission and partnership in the section of his Mishneh Torah known as Hilkhot Sheluĥin veShutafin (“Laws of agency and partnership”), and he makes recourse to the laws of bailment in his discussion of both agency commission and something that he (following the Talmud)88 calls an “investment partnership” (in Talmudic Aramaic, “‘isqa”; in Maimonides’ Hebrew, “‘eseq”). Unlike an “ordinary” partnership (Hebrew, “shutafut”), for which both partners work actively with common partnership capital, an “investment partnership” is a commercial relationship for which

77

78

Partnership as Culture

only one individual works actively—the contribution of his fellow being the partnership capital. Explaining that the investment of the nonworking partner in the investment partnership is to be considered “half a loan and half a deposit” (Mishneh Torah Sheluĥin ve-Shutafin 6:2), Maimonides turns to the laws of loans and the laws of bailment to describe this relationship. In the same vein, Maimonides relies on the laws of bailment in enumerating agency commission: for instance, he points out that an agent making the claim that his commission suffered an unavoidable loss is required to “take the bailees’ oath” (Hebrew, “shevu‘at ha-shomrim”; Mishneh Torah Sheluĥin ve-Shutafin 2:9). The appropriateness of the aforementioned biblical verses to the task of fruitfully outlining the legal issues agents and partners encounter in the establishment, maintenance, and termination of commercial relationships should be clear. What follows, then, is an analysis structured according to the language of these biblical verses, using the legal issues animated by the biblical language as an entrée to the broader cultural ideas these legal issues evoke in the Geniza documents and in medieval Jewish society generally. Those cultural ideas reveal the economic cooperation of the Jewish merchants who produced the Geniza documents to have been an area in which those merchants expressed their distinctive subgroup identity in the medieval Islamic marketplace. To make the connections between the biblical verses and the Geniza documents more explicit, in what follows I introduce the section discussing each phrase within the biblical verses by bringing an excerpt from a Geniza document underscoring the aspects of commercial life that the biblical phrase brings to light. As mentioned, I have included an appendix of full transcriptions and translations of fifteen such documents at the end of the book, should the excerpts pique the reader’s curiosity.

“When a man gives money or goods to another for safekeeping . . .” The circumstances envisioned by the Bible are specific: money or goods are given by one individual to another for the purpose of

Jewish Law and Jewish Life

safekeeping. However, the primary goal of mercantile cooperation is presumably not simply the preservation of one individual’s assets under the aegis of another but rather the expansion of assets through commerce. The central structures of mercantile cooperation as seen in Jewish law, Islamic law, and Geniza documents alike all fall into a few broad categories: agency commission, “ordinary” partnership, and “investment” partnership. Essential to the different ways in which the various systems understand these broad categories are a number of central concerns, particularly whether ownership of the property is joint (partnership) or ascribable to only one of the individuals (bailment); the process by which property might migrate between these two categories (that is, how property owned by two individuals might be transformed into common capital); liability for losses to the capital or bailment; and the discretion that an individual has in executing his or her role as an agent or a partner. mer­ Laying the groundwork for my detailed discussion of com­ cial cooperation, I divide this section into three subsections. In describe the distinction between bailment and ownership the first, found both in Geniza documents and in the classical sources of Jewish law, and I introduce the liminal role of the qinyan (a publicly executed legal act denoting acquisition and the transfer of ownership) in ­nego­t iating these categories. In the second, I discuss the mechanics of the ­qinyan in greater detail. In the third, I discuss the limits of ­d iscretion afforded both agents and partners in mercantile cooperation.

Bailment vs. Ownership

‫ סאלנא אלי מצר ובקי אלשי בידה עלי חאלה אנפצל אנא‬. . . )4( ‫) מנה עלי מא אכתאר ומן כאן לה עאקה ומקאם פי תלך‬5( ‫) בידה ויבריה ממא קבץ לא גירה והדה‬6( ‫אלדיאר יקבץ מנה מאלי‬ ‫) אחצרתה‬7( ‫נסכה גמיע מא חואלי אלשטר אלמדכור לעילא אלדי‬ ‫אלינא מראש ועד סוף ונסכה שהודה אות באות ומלה במלה‬ . . . ‫שהדותא דהוה‬

79

80

Partnership as Culture

(4) We sent an inquiry to Fustāt and the matter remained in his hand such as it is. I am disassociating myself (5) from him concerning what he has chosen, and one who has restraint and power there shall receive my assets from him (6) in his hand and shall release him from that which he has received—no one else. This is the complete text of the aforementioned document that (7) was brought to us, from beginning to end; and the text of the witnesses letter for letter and word for word: “Testimony which was . . .” TS NS J 11, ll. 4–7 (2 in the Appendix)89

A popular adage in British law explains that “possession is eleven points in the law and they say there are but twelve.” 90 Yet possession does not unequivocally designate ownership. In this section, I discuss how bailment and ownership differ in the eyes of the legal systems that surrounded the Geniza merchants, and then expose how the Geniza merchants reflect the models of one or another of these systems. In summarizing the section, I discuss how the Geniza merchants use both bailment and ownership—that is, both agency and partnership relations—to strengthen their commercial ties with their fellows.

Joint vs. Separate Ownership Jewish law generally differentiates between agents (individuals who are given a task to fulfill on behalf of their principals) and partners (who have mutual discretionary power to transact with partnership capital that is held jointly). On the other hand, Islamic law does not recognize this distinction quite so starkly. The Geniza documents themselves seem to recognize this distinction, distancing them from Islamic law, particularly as the Geniza documents focus on the role of the qinyan in the process of initiating partnership relations.91 The document cited at the beginning of this section points to this distinction, common in Geniza documents: for instance, an individual (one Abū al-Ridā Solomon b. Mevorakh) is appointed as an agent to collect a debt on behalf of three of his fellows, but since he acts here as an agent he is given only limited power—specifically, to collect the debt

Jewish Law and Jewish Life

and release the counterparties from further obligations—and not the more extensive power held by a principal—say, to transact further with the received funds. Another document from the Geniza, TS 10 J 4.16 (14a*), excerpts in detail a document that may have been the partnership agreement engendering this debt. However, in that agreement, Solomon is described as sharing in the work as well as in the proceeds of the transactions—that is, as a joint stakeholder or owner in the partnership. According to Maimonides, an agent can be appointed orally 92 —perhaps explaining why Geniza documents describing agency appointment are few—and the act of qinyan that initiates actual partnerships need not take place. As I discuss below, the writers of the Geniza documents see the act of qinyan as central to initiating actual partnerships, as opposed to agency relationships. Since qinyan can effect ownership, the economic roles of agents and partners neatly correspond to the categories of separate ownership and joint ownership, and generally to the absence or presence of the qinyan. Maimonides’ own survey of the law of agency commission and partnership also suggests rigid typological boundaries between these two categories based on the joint (or separate) ownership of assets: he begins Mishneh Torah Sheluĥin ve-Shutafin with a discussion of the law of agency commission (chapters 1–3), proceeds to discuss partnerships (chapters 4–5), moves on to the investment partnership (chapters 6–8)—for which he ultimately relies on the law of agency commission—and then closes with a discussion of legal issues surrounding the unwinding of partnerships (chapters 9–10). Though the Mishneh Torah does not include a programmatic statement that agency commission and partnership are entirely separate institutions,93 and there are occasions in which Maimonides alludes to partners in his material on agents and vice versa where his discussion of one illuminates issues faced by the other (cf. Mishneh Torah Sheluĥin ve-Shutafin 2:9), he seems generally to understand the two as somewhat conceptually distinct.94 As I show later on in this section of the chapter, Maimonides’ requirement that partnership be initiated with a qinyan—which transforms the status of an item from separate to joint ownership—reflects his typological distinction between partnership and agency.

81

82

Partnership as Culture

Yet Jewish law is not in universal agreement in drawing this distinction: Maimonides’ predecessor, the Suran gaon Samuel b. Ĥofni (d. 1013 ce) whose Kitāb al-shirka wa-al-mudāraba (Book of Partnership and Commenda)95 survives only in fragmentary form,96 seems not to distinguish between agents and partners. Like his Islamic contemporaries, Samuel seems to disagree with the conception of partnership reflected by Maimonides and instead to concur with the Ĥanaf ī belief that “the concept of agency is the very cornerstone of contractual partnership,” 97 a sentiment echoed by the eleventh-century scholar Muĥammad b. Aĥmad al-Sarakhsī when he writes that “the permissibility of partnership relies on that of agency commission.” 98 Consistent with this view, Samuel also does not require partners to effect the ­qinyan (by placing their joint funds in a common purse, which I discuss extensively below),99 even when both partners are actively involved in transacting with partnership capital. Likewise, Samuel describes the partner as “like the agent” (Judeo-Arabic, ­“ka-al-wakīl”).100 However, Samuel’s view seems exceptional among Jewish jurists: both Maimonides (as mentioned) and Isaac Alfasi require the qinyan,101 and they understand partnership and agency commission as distinct areas of law. The possibility that the attitude of Islamic legal thinkers such as the predecessors of the aforementioned al-Sarakhsī influenced Samuel b. Ĥofni’s view toward the partneragency divide is discussed below, but it is sufficient for the moment to point out that the primary Jewish legal compendia of the eleventh and twelfth century do distinguish between agency and partnership, requiring a qinyan to effect for the latter that reflects the partners’ mutual ownership stake in the capital. And yet, while layering the distinction between separate and joint ownership onto the economic categories of agency and partnership, Jewish law does consider one case in which the agent is given an ownership stake of sorts in his bailment just like the partner: when the agent has run afoul of his assignment. This debate, which appears in the Talmud,102 is ultimately rooted in a tannaitic dispute and may reflect the emerging development of commercial law in late antiquity. The outcome of the talmudic debate would seem to assign to the agent at least a share of the profits (as well as all of the losses) when the agent

Jewish Law and Jewish Life

has deliberately contravened his instructions.103 Yet Alfasi104 explains (and Maimonides confirms)105 that unless the funds are given over explicitly as partnership capital, the agent has no stake in profits from his venture. Thus, although the agent may be liable for “damages”— that is, losses ascribable to his behavior—the agent is not entitled to reap any benefits that might accrue from it. It is clear, then, that at least in the codes of Alfasi and Maimonides, partnership is associated with the concept of joint ownership and the act of qinyan, as well as with a stake in the profits (and losses) from trading. However, agency is generally disassociated with the concept of joint ownership, and ­qinyan is not necessary to effect agency. Likewise, an agent generally does not bear the risk of loss, unless he fails to fulfill his duty as an agent, either by negligence or by running afoul of his assignment.

Liability for Losses Questions of ownership in mercantile relationships are bound up with those of liability for losses. Indeed, Jewish law seems to understand that holding an ownership interest in an item typically implies ultimate responsibility for losses to that item, though extenuating circumstances may place immediate responsibility for losses on the shoulders of another. Suggestive of the linkage between liability and ownership, Maimonides’ typology of partnership is arranged according to the various levels of liability borne by partners and agents. That is to say, he moves from models of commercial cooperation that carry less liability (agency), to those carrying more (partnership). As mentioned, Maimonides reckons the agent a bailee, who does not hold an ownership stake in his bailment. Nonetheless, bailees/ agents can still bear responsibility for losses to their bailment in certain circumstances—say, if they are negligent in caring for the bailment. Maimonides’ restatement of liability law emphasizes the distinction to be drawn between agents and partners. Following the Talmud, Maimonides explains that when an individual receives a bailment, he assumes no liability for “unavoidable acts” (Hebrew, “ones”)106 which damage or reduce the value of the bailment. He extends this ruling to all bailees, paid or unpaid, even though the Talmud considers the

83

84

Partnership as Culture

possibility that the bailee’s compensation might imply a higher level of responsibility for losses.107 Yet Maimonides does maintain a distinction seen in rabbinic literature between the paid and the unpaid bailee, assigning the paid bailee increased responsibility for losses corresponding to the fact that he has been paid for his services. Specifically, unpaid bailees bear no responsibility when a bailment is stolen or lost,108 even though the paid bailee does bear responsibility in such a case.109 Writ large, then, the paid agent or bailee is located on the middle of a range of liability extending from the unpaid agent or bailee (who bears the least responsibility) to the partner (who bears the greatest). The relationship between ownership and liability may be tested by reading Maimonides’ discussion of the ‘eseq, the “investment partnership,” since half of the capital investment in an ‘eseq is to be regarded as a loan from the investor to the active partner (and therefore the latter’s sole property) while the other half is considered a bailment placed with the active partner. Maimonides frees the active partner in an ‘eseq from any such responsibility for the half of the investment capital denoted a bailment,110 reiterating its nature as a bailment and the active partner’s role as an “unpaid” bailee. On the other hand, partners in an ordinary partnership are differentiated from bailees in that partners hold a stake in the profit or losses due to trading. Although profits or losses from the ‘eseq may seem to be divided between the parties as partners, in fact the profits or losses that accrue to the parties are calculated according to the share of the capital denoted a “loan” or a “deposit”; that is, liability follows ownership. Liability for losses, then, is allocated across three categories: unpaid agents, paid agents, and partners. These categories reiterate the aforementioned distinction between joint and separate ownership: an un­paid agent is not liable when the bailment is affected by ones, theft, or being lost. Nor does an unpaid agent have any stake in the successes or failures of the trading enterprise itself. Whereas a paid agent is liable when the bailment is stolen or lost (though not when it is affected by ones), he or she has no ownership interest and therefore no stake in the outcomes of the trading enterprise itself. Finally, a “partner” (Hebrew, “shutaf ”) is not only liable when the bailment is stolen or lost but is

Jewish Law and Jewish Life

also assigned a stake in the ownership of the enterprise. Therefore, the shutaf must be seen as distinct both from bailees and agents, as the latter lack an ownership stake in the property they hold. The ‘eseq would seem to muddy these waters, but Maimonides’ explication of the law is clear: the “mit‘aseq” (that is, the active partner in an ‘eseq) is considered an unpaid agent for the capital reckoned a bailment 111 and is correspondingly reckoned sole owner for the amount of the capital considered a loan. Once again, liability follows ownership.

Conversion from Separate to Joint Property: The Qinyan As mentioned, it is the act of qinyan that effects ownership, and Jewish law views agents as lacking ownership. Correspondingly, Maimonides decrees that agents need not be appointed by means of a qinyan. He even begins Mishneh Torah Sheluĥin ve-Shutafin with the very statement that agents may be appointed orally to buy and sell on behalf of their principals.112 In contrast, Maimonides explains that partnership is to be effected by means of a qinyan; in this case, the partners are to place their joint funds in a common purse, which is then lifted up by the two of them.113 Since ownership can only be effected by qinyan, he does not permit partners to commence their partnership simply by trading with the common partnership capital—even if the partners compose a legal document at the time they begin trading. Rather, he demands the establishment of joint ownership of partnership capital through a qinyan. Yet the alignment of qinyan with joint ownership of capital seems to be muddied by Maimonides’ treatment of a special case: when an agent is retained to collect on a deposit or a debt recorded in a document.114 In such a case, Maimonides actually requires both qinyan and the writing of an agency document. This would seem to be an exception to the idea that it is the qinyan that transforms separately owned funds into jointly owned funds in the eyes of Jewish law. However, Maimonides’ purpose in requiring these acts is not to transfer ownership of the debt. Rather, as he explains, the document is written in this case to avoid problems collecting the debt, since the debtor could simply refuse to pay on the grounds that his debt is to the creditor—and

85

86

Partnership as Culture

not to the agent!115 Thus the agency document serves to identify the agent as the legal representative of the creditor.116 Indeed, the text of TS NS J 11 (2*) (the document introducing this section), which retains the bearer as an agent to effect a settlement and to collect the assets of a partnership, copies the entire text of the partnership agreement itself, presumably to impress on the partners from whom the agent is collecting that this is indeed the agent’s role. The distinction seen in the Mishneh Torah between ordinary agents, for whom the qinyan and the writing of a document is not required, 117 and agents assigned to collect deposits and debts (for whom it is required) is also reflected throughout the literature concerning actual documentary practice: the formularies of both the tenth/eleventh Pumbeditan gaon Hai b. Sherira and the eleventh/twelfth-century Barcelonan jurist Judah b. Barzillai al-Bargeloni contain formulae granting agents permission to collect deposits and debts, 118 but they do not contain formulae for ordinary agency. Likewise, traders’ letters from the Geniza often ask fellows to perform specific tasks—part of the formal friendship relations detailed by Goitein and Udovitch—but ordinary agency appointment documents seem not to appear in the Geniza. This finding is consistent with Maimonides’ restatement of agency law and with the Jewish formularies alike. Thus the understanding that an ownership interest can only be transferred through qinyan is held throughout Jewish literature— both in classical codes and in the major formularies—and Geniza documents. Joint ownership and partnership are associated with one another, effected through a qinyan; separate ownership and agency are likewise linked, not requiring a qinyan, except, as mentioned, where the agent stands in place of his principal to collect a debt, a situation described by a number of Geniza documents, such as the document opening this section (TS NS J 11 (2*)).

Joint and Separate Ownership as Complements Jewish law emphasizes the distinction between agency appointment (the technical term for the relationship Goitein calls formal friendship), through which merchants simply performed tasks (or, perhaps,

Jewish Law and Jewish Life

favors) for one another, and partnership, through which merchants both transacted as joint owners for their mutual benefit. However, I will show that Jewish merchants actually used these two distinct forms of commercial cooperation as complements. Building ties of “mutuality,” inherent in partnerships, actually strengthened the ability of partners to turn to one another as formal friends (that is, as agents). This challenges Udovitch’s characterization of commercial cooperation as restricting partnerships to the early stages of a relationship, after which trust would have been established and partners would have been able to rely on mutual cooperation through agency relations.119 Udovitch explains that viewing formal friendship simply as a quid pro quo relationship is insufficient.120 Like Goitein, Udovitch sees mercantile relationships as long-term ventures; he sees the role of structured partnership as paving the way for informal agency commission, the long-term steady state for commercial cooperation.121 Yet the Geniza evidence reveals merchants to have relied on structured partnerships over the longue durée even with their most intimate trading companions. Thus the Geniza evidence begs for an explanation through which both types of mercantile relations—agency commission and partnership—can coexist and persist in a long-term complementary relationship, working together to strengthen social ties between merchants in a way that either instrument on its own could not. My explanation for this, which follows, turns to the essential relationship between ownership and qinyan, which I have already demonstrated is central both to Jewish law and to the Geniza documents. The qinyan, which was part and parcel of initiating partnership relations, effected mutual ownership in the partnership capital, giving partners not only a stake in the potential profits from the venture but also mutual responsibility for its losses. Agreeing to share in partnership losses would have maintained and even enhanced the sense of “personal guarantee” that allowed individuals to entrust their agency commissions to their fellows. Seen in this light, these two forms of commercial cooperation can be understood to have been complementary throughout the life of mercantile relationships rather than contradictory, and formal partnership not to have been restricted to the initial, formative stages of a relationship.

87

88

Partnership as Culture

Indeed, that partnership and formal friendship were complementary and perhaps even somewhat overlapping in the mind-set of the community of merchants is confirmed by the description in TS 10 J 4.16 (14a*) of a partnership investment as a “suĥba,” a term suggestive of formal friendship. The practice of writing letters to one’s fellows strengthened these complex social ties and generated the sense of mutual attention if not outright supervision; as pointed out by Udovitch, inclusion of personal details in such letters demonstrates that economic ties are but one node in the web of relationships be­t ween individuals.122 These relationships required continuous maintenance and were without a doubt continually tested by distance, lack of communication, and the periodic failure of individual transactions. A ritualized cycle of contract and release reaffirmed personal ties as much as the performance of favors and commissions. Thus, the Geniza reveals both documents that allude to the immediate renewal of a partnership whose term had come to an end 123 and multiple documents emerging from the same pair of individuals,124 all suggesting that “formal” relationships actually extended well beyond the brief terms outlined in individual agreements. Furthermore, regular accounting performed at the moment of release and renewal emphasized joint ownership, responsibility or liability, and the accountability of partners to their fellows. Partnerships followed a cycle that was short, yet regular renewal meant partnership relationships lasted for sustained periods.125 At times, partners might choose to restructure their relationship for a time as agency commission—or, at least, so claimed the merchant Musāfir b. Samuel in his testimony, which records that “I gave him funds on my own behalf with which he would transact, although we had partnered a number of times and [subsequently] separated.” 126 The majority of ordinary partnerships whose initial duration has been preserved and is visible in the document itself were contracted for one year or less; though there are exceptions such as ENA NS 21.1 in explaining that the partners contracted for “many years.”127 The public act of release, perhaps even effected by placing a copy of the release document in the hands of the partners, 128 could have mimicked the act of granting a bill of divorce, which must be received by the wife.129

Jewish Law and Jewish Life

That release documents often refer to copies made in duplicate and to the mutuality of the qinyan, the act effecting the agreement, supports this conjecture.130 Yet the union was often immediately renewed, reminiscent of the immediate remarriage of divorced partners to which the Mishna refers in Mishna ‘Eduyot 4:7—when a divorced couple are effectively remarried after spending an evening together in an inn. However, that such behavior is explicitly forbidden by the Qur’ān 131 suggests that the iterative practice of contracting a partnership with a qinyan, releasing one’s partner at the end of the contractual term, and then repartnering with the same partner may have been a distinctive practice among Jewish merchants—or at least, when this practice was carried out by Jews, that it resonated with other distinctively Jewish practices. That relationships were highly personal is critically important for understanding the combination of formal friendship and contract and the long-term persistence of these two modes of commercial cooperation side by side. The merchants in the legal documents and the epistolary corpora of the Geniza identified by Gil, Goitein, and Udovitch suggest the presence of overlapping commercial connections. These networks of overlapping connections are similar to the network of personal connections among notables identified by Mark Cohen in his study of the political elite of eleventh-century Fustāt and graphically depicted by him in a chart demonstrating that “each of the notables interacted with many of the others in at least one sphere of social activity.”132 Though Cohen’s work is concerned with a specific group of notables, it is logical to assume that these interconnections reached as far as the very periphery of the Jewish community and beyond. It is difficult to imagine, then, that relationships were, as Udovitch describes, “nontransitive,” since merchants would have been able to intuit a connection with each other even through a mutual acquaintance if they themselves had not previously transacted with one another. Indeed, the transitiveness of these connections is highlighted by the very recommendation letter from which Udovitch adduces “personal guarantee” within the asĥāb (the “community of merchants”).133 One vehicle for the expansion of relationships was forming partnerships with more than two parties, which Goitein thought to

89

90

Partnership as Culture

be “as common as those between two.” 134 The jurisprudential scholar Ian Macneil points out in his study of contract relationships that “increased numbers tend to increase primary relations.” 135 Once established, those primary relationships were a vehicle for mutual oversight, transmission of information, and further commercial and social connections that developed through formal friendship and continued contractual partnership alike. As revealed by the Geniza documents, Jewish merchants saw connections among joint ownership, partnership, liability for losses, and the qinyan; and they also saw connections among separate ownership, agency relations, and indemnity—in relations that did not require the qinyan. These two modes of commercial cooperation were distinct from one another, but Jewish merchants also saw them as interconnected. Merchants would commit and recommit to their partners, using their meetings in court as an opportunity to provide accountability; and along the way, they would continue to use agency commission as a vehicle for the fulfillment of specific tasks.

Executing the Qinyan

‫) אלשיך אברהים בן מוסי אלמאירקי ואברהים בן מוסי מן‬4( ‫) בגמיע‬5( ]‫ וקאלו לנא אשהדו עלינא ואכתבו ואכתמו‬. . .[‫מ‬ ]. . . ‫אלאלפאט אלמחכמה ואלמעאני אלמוכדה אן כל ואחד [מנא‬ ‫) צאחבה במאלה וגסמה באן יכרג כל ואחד מן מאלה מאיתין‬6( ‫) ווזנה ואצפנא גמלה הדה אלדראהם אלי כיס‬7( ] ‫ דראהם‬. . .[ ‫) ונשתרי ונאכד ונעטי ונתגר אתנינא‬8( ] ‫ נביע‬. . .[ ‫ואחד ואתפקנא‬ . . ‫חסב מא יקע‬ (4) the Elder Ibrahīm b. Mūsā al-Māyurqī 136 and Ibrahīm b. Mūsā from [. . . came before us, and said to us, “Perform a qinyan with us, write and sign] (5) using all the appropriate legal formulae and the expressions of certainty, that each one [of us . . .] (6) his fellow with his assets and his flesh, in that each one shall bring out two hundred [. . . dirhams] from his assets[. . .] (7) and we weighed it and combined all of these dirhams in a single

Jewish Law and Jewish Life

purse and agreed [. . .] the two of us [will sell] (8) and buy and transact and trade according to what shall befall. . . . TS 8 J 11.14, ll. 4–8

As mentioned, the classical sources of Jewish law rely on the institution of qinyan to effect mutual ownership, the sine qua non of ordinary partnership. Islamic law maintains a similar practice, despite understanding that partnership law ultimately relies on agency law.137 In this section, I explore the act of qinyan and its significance in mercantile cooperation and beyond in greater detail.

Fundamentals of Transferring/Transforming Ownership The Talmud envisions various methods by which an interest in a financial asset can be acquired; for instance, one may take ownership of an item simply by lifting it up in the air. However, not all of these methods are appropriate for every asset. For instance, it is difficult to lift up real property, and the Talmud does not allow an ownership interest in coins to be transferred simply by lifting them up if those coins are understood to be only a medium of exchange.138 That is to say, qinyan transmits ownership of a specific item; where coins are understood to hold exchange value rather than intrinsic value, lifting them up does not transmit ownership. Explaining this, the Mishna records that “gold acquires silver; silver does not acquire gold.” 139 Since Maimonides understands an ordinary partnership to be one in which each of the partners has an ownership interest in the invested assets of his partner, simply handing over coins to one of the two partners or dividing the coins among them would not be sufficient to effect joint interest; rather, he requires that each partner place coins in a common purse, which is then “lifted up” by the two partners together.140 When the object of the partnership is commodities rather than specie, the partnership is effected when the property of one partner is physically brought into the purview of the other.141 Maimonides’ view is not undisputed; as I have already mentioned, Samuel b. Ĥofni differs radically from Maimonides in likening partnership to agency commission,142 and so Samuel demands neither qinyan in general nor

91

92

Partnership as Culture

the common purse specifically.143 However, most Jewish legal sources hold that physical merging of common interests is fundamental to partnership, and that when partnership capital consists of specie the merging is enacted through qinyan. Islamic law seems to view the process of initiating an ordinary partnership in much the same way, but a closer look will reveal the common purse not to be required. Islamic legal material concerned with partnership law discusses many of the same issues analyzed by the talmudic sources and Maimonides’ code. The Ĥanaf ī jurist Aĥmad b. Muĥammad al-Taĥāwī (d. 935 ce), author of the important formulary Kitāb al-shurūt al-saghīr, begins his narrative discussion of the ‘inān partnership (that is, an “ordinary” partnership)144 in that work with the statement, “When two individuals contract an ‘inān partnership, as opposed to a mufāwada [that is, an ‘unlimited’ partnership], each of them brings out (Arabic, ‘akhraja’)145 the same type of assets as his fellow”;146 the importance of bringing together partnership assets at the formation of the relationship in the narrative fiqh and the Islamic formulary literature alike is made clear with the mention in the partnership formula in al-Muqni‘ fī ‘ilm al-shurūt, of the Andalusian Mālikī jurist Aĥmad b. Mughīth al-Tūlaytulī (d. 1067 ce), that the assets “are to be in the hands of the two of them, in a single purse (Arabic, ‘kīs wāĥid’).” 147 However, as Ibn Rushd points out in his work of comparative jurisprudence Bidāyat al-mujtahid, the Islamic legal sources are not in universal agreement in requiring the placement of partnership capital in a joint vessel.148 Indeed, by the account of Ibn Rushd, only one of the three eponyms of the primary schools of Islamic law actually declares this to be an absolute requirement.149 According to his analysis, the Shāfi‘ī school alone requires the common purse, and the Ĥanaf ī and Mālikī schools do not.150 Thus the common purse may be desirable, but its mention in the formularies does not mean it is a requirement of Islamic law. Indeed, Ibn Rushd explains that Abū Ĥanifa would even allow a partnership simply to be contracted by an oral statement.151 Ibn Rushd’s approach points to the general linkage in Islamic law between agency law and partnership law, which I have already mentioned.

Jewish Law and Jewish Life

Jewish formularies also reflect the requirement of placing coins in a common purse.152 This is seen most sharply in the distinction between formulae for ordinary partnerships and those for investment partnerships, since Jewish law understands the latter to be half a loan and half a deposit rather than an actual partnership per se. As noted by Joseph Rivlin in his study of eleventh-century legal documents from Lucena, Spain,153 the formularies of both Hai b. Sherira and Judah b. Barzillai contain distinct formulae for ordinary partnership and investment partnerships,154 referring to the common purse in the former and not in the latter.155 Indeed, according to Judah b. Barzillai, it is the very act of placing coins in a common purse that distinguishes between the two.156 Therefore, some exploration of the role of the qinyan vis-à-vis ordinary partnerships and investment partnerships, and the language used by Jewish and Islamic law and the Geniza documents to describe these various forms of mercantile cooperation is needed.

Ordinary Partnerships vs. Investment Partnerships Legal documents from the Geniza maintain the very distinction mentioned by Judah b. Barzillai: precious few documents that describe mercantile cooperation using the word “wasat” (Judeo-Arabic, “mid­ dle”)157 refer to an investment partnership.158 Some partnership agreements from the Geniza go so far as to mention explicitly the placement of partnership capital in a single purse; the document cited in the incipit to this section does so with the phrase “kīs wāĥid.”159 Additionally, a few documents refer to one or more of the partners “bringing out (Judeo-Arabic, ‘akhraja’)” partnership assets,160 reminiscent of bringing out partnership capital for placement in the common purse. The use of such language in Geniza documents concerned with ordinary partnerships and not investment partnerships (with rare exception) indicates that the writers of the documents clearly viewed ordinary partnerships and investment partnerships differently, with qinyan by means of the common purse as the vehicle whereby joint ownership is effected. At first blush, it may seem difficult to differentiate between ordinary partnerships and investment partnerships, for which one partner

93

94

Partnership as Culture

provides capital and his fellow all the work. For even where partnership capital comes from only one of the partners, Jewish law imputes the capital to both partners, reckoning half of this capital as a loan and half as a deposit.161 Indeed, one might be led to believe that the only difference between ordinary partnerships and investment partnerships is the presence of a “sleeping” partner in the latter. Yet how these two forms view the qinyan underscores the distinct social and economic roles they fulfill. First, the common purse, so central to ordinary partnerships, is absent from both Jewish legal codes and Geniza documents when these materials discuss investment partnerships. Investment partnership documents in the Geniza palpably eschew language of the common purse. For example, Bodl Ms Heb a 3.20 reads, “There was a partnership (shirka) between me and the Elder”; ENA 2727.23a Recto reads “we have accepted and received . . . twelve dinars . . . by way of a commenda”; and Firkovitch II 1700 12 a II (9*) reads only that one partner “handed over 150 (dinars)” to the active partner. The “handing over” of funds is functional as well as symbolic, even where the funds come from both partners,162 since the recipient is the sole partner engaged in mercantile transactions for the investment partnership (or commenda). As Maimonides points out,163 neither a written document nor the act of qinyan is necessary for an agency appointment; additionally, a principal has no claim against an agent who fails to perform his agency.164 In this sense, significant commonalities exist between agency agreements or formal friendships and investment partnerships. In both of these constructions, as opposed to an ordinary partnership, there is no sense of common ownership. Thus, in the case of the commenda, funds ascribable to the sleeping partner and those ascribable to the active partner are distinct—even if they all originally came from the sleeping partner. In the Geniza, investment partnerships largely follow the model of the ‘isqa rather than the Islamic commenda/ qirād (for which the active partner bore no responsibility for losses), although TS 16.23 (12a*) is a clear exception. That is, whether or not Goitein is correct that “a merchant who invested work but no capital often did not have much money. Consequently his responsibility for losses was of only limited value,”165 actual agreements did indeed often

Jewish Law and Jewish Life

hold such merchants responsible for the share of the losses to the invested capital that was reckoned a loan. The function of the public act of qinyan in initiating an investment partnership, as opposed to the lifting up of a common purse in initiating an ordinary partnership, is that it not only identified the roles of investor and active partner in the transaction but also underscored the active partner’s liability for part of the losses to principal that he himself had not even brought to the transaction, yet were ascribed to him as part of the investment partnership agreement. Unlike formal friendship, which is pure agency and for which a principal would have no recourse for unsatisfactory fulfillment, the investment partnership’s putative loan to the active partner gave him specific financial accountability. The qinyan would have acknowledged the change in the status of the capital into half a loan, half a deposit. Like the Jewish formularies and the Geniza documents, Islamic formularies might refer to “bringing out” partnership capital in the case of an ordinary partnership, but they do not mention this when discussing the formation of a commenda.166 In fact, al-Shurūt al-saghīr and al-Muqni‘ fī ‘ilm al-shurūt both refer to the investor “paying” (Arabic, “dafa‘a”) the capital amount to the active party rather than “bringing it out” to be held communally.167 This distinction is held in the narrative Islamic legal literature as well as in formularies;168 only sources of the Ĥanaf ī school refer to the participants in a commenda as “partners.” 169 The failure of Ĥanaf ī law to note the subtle distinction between participants in an ordinary partnership and those in an investment partnership is consistent with the view of Ĥanaf ī lawyers that I have already mentioned: first, Abū Ĥanifa did not absolutely require the common purse in initiating ordinary partnerships, and second, Ĥanaf ī law links partnership law to the law of agency commission. That the Ĥanaf ī sources might gloss over a distinction held among the other schools of Islamic law is unsurprising, but the fact that this distinction is retained in the Geniza documents questions the idea of “a remarkable symmetry . . . between the [Ĥanaf ī] legal formulations of the late eighth century on the one hand, and the documented commercial practices of eleventh-and twelfth-century Geniza merchants on the other.”170 The centrality of the qinyan in defining,

95

96

Partnership as Culture

classifying, and initiating modes of commercial cooperation among the Geniza merchants should be clear.

The Mu‘āmala: Demonstrating the Importance of the Qinyan The merchants who wrote the Geniza documents understood the qinyan to be central to the distinction between categories of mercantile cooperation: agents, merchants cooperating in an investment partnership or commenda, and ordinary partners. They also understood the qinyan to be a key component in the initiation of partnerships. Focusing on the importance of qinyan will allow us to understand the Judeo-Arabic term mu‘āmala, seen both in letters and in legal documents, the translation of which has presented a somewhat thorny problem for scholars of the Geniza. Even though Goitein believed the term to refer to “a relationship [that was] informal, not based on a legal instrument,” 171 the term does appear in legal documents—and the specific (“formal”) terms of the relationship it describes are, at times, explicitly laid out. For example, Mosseri VII 17 (3*) describes a mu‘āmala in which a merchant would travel to Alexandria and transact in unnamed commodities, with the (draft) document stipulating the division of profits and losses from the transactions; and TS Misc 28.263 reveals partners sending their assets “to the West” (Judeo-Arabic, “ilā al-gharb,” Northwest Africa) to be employed in a mu‘āmala.172 Indeed, the terms of the mu‘āmala are often explicitly stated in legal documents, suggesting almost no distinction with the shirka. Yet the juxtaposition of the terms shirka and mu‘āmala in release documents173 suggests that the two terms do indeed refer to different forms of partnership; together, they form a hendiadys referring to the sum total of ordinary partnership relationships.174 However, a close reading of the document ULC Or 1080 J 290 (15*) permits us to differentiate the two terms. This document reveals a witness stating that “what was between Khalaf the Ĥazzan and Suleymān b. Isaac was a partnership (mu‘āmala) and not a qinyan”; this would seem to support Goitein’s reading—that is, the mu‘āmala was informal and the qinyan referred to a formal partnership, and

Jewish Law and Jewish Life

indeed this document seems to be the evidence upon which Goitein relies for his understanding of the term mu‘āmala as an informal relationship.175 However, seeing the act of qinyan in lifting up the common purse as central to the formation of partnerships (that is, the shirka), the mu‘āmala can be understood as a joint enterprise no less formally or legally defined than the shirka yet for which no qinyan had taken place. Since some Geniza documents that contain the word mu‘āmala concern partnerships for which the partners would have been distant from one another—for example, some documents describing partners sending their assets “to the West” to be employed in mercantile enterprises there—the term may have been used to refer to partnerships for which partners, separated by distance, were unable to lift up the common purse. Merchants wishing to contract a partnership with one another and not an agency agreement would have been able to contract a mu‘āmala, perhaps contracting a shirka by means of the common purse when they were geographically united once more.176 Likewise, two debt collection agreements, Antonin 349 and INA D 55.7, both refer to a debt as the consequence of a mu‘āmala. The fact that agents were appointed to collect these debts gives weight to the possibility that the partnership itself was contracted while the partners were distant from one another and therefore unable to lift up the purse jointly in the act of qinyan. It would seem, then, that the merchants themselves no less than Maimonides understood the act of qinyan to effect a change in nomenclature and status of a relationship between two merchants—and agency and partnership to be fundamentally distinct forms of commercial cooperation. The distance separating partners in these mu‘āmalāt was not the only condition preventing a qinyan from being performed, and looking at other such possible conditions reiterates the importance of the qinyan in effecting a change in status. In the case of the mu‘āmala, the partners may not have been in the same place, making it impossible for them to effect the qinyan. In the case of a “work partnership,” the partners are both present, but the “capital,” so to speak, is absent. Maimonides declares work partnerships void, as the object of such a partnership is by definition not present at the moment qinyan

97

98

Partnership as Culture

would otherwise be effected. Here, he draws on the well-established Jewish legal principle prohibiting a qinyan on “an item which has not yet come into the world” 177—such as the work to be produced by two individuals in a work partnership. Thus, without a proper qinyan, partnership cannot be effected. Maimonides’ viewpoint is not universally accepted; his important Provençali commentator Abraham b. David of Posquières (“Rabad,” d. 1198 ce) permits just such a qinyan on the grounds that one may “effect a qinyan upon oneself” in the manner of slaves who are freed from their masters and can then be “acquired by themselves.”178 Likewise, the fifth chapter of Samuel b. Ĥofni’s (presently non-extant) Book of Partnership and Commenda discussed work partnerships;179 given his general approach to partnership as an adjunct to agency, it seems likely he would have allowed work partnerships. Nonetheless, the centrality of qinyan in the talmudic and Maimonidean mind-set alike is clear. Despite this, the Geniza does reveal work partnerships. INA D 55.8 (6*) describes a partnership among three individuals performing the service of washing the dead in preparation for burial, even though Maimonides would have prohibited such a structure. Goitein’s analysis of this document points out that the “newcomer[] to the partnership received a smaller share in the profit than the experienced members who were already established in the business,” 180 suggesting that the relationship described by the document was an apprenticeship of sorts. Goitein even points out that partnerships may have served as an alternative to employment agreements that would detract from the dignity of the “employee,” placing him in the service of another.181 However, some Geniza documents reveal apprenticeships that fall under Maimonides’ guidelines, by showing the junior partner to have participated in the investment by bringing a share of partnership capital—even if his contribution was but a token amount relative to the whole.182 Furthermore, at least one apprenticeship seen in the Geniza that is noteworthy for the absence of a financial investment on the part of the apprentice183 lacks any language suggesting that it was to be considered a partnership.184 Thus, even if Goitein were correct that many partnerships were “nothing but veiled forms of employment,” 185

Jewish Law and Jewish Life

apprentices periodically seem to have had a stake in the partnership capital. Although the Geniza does reveal exceptions to this general rule, documents yielding “work partnerships” are few, and their participants may not even have considered one another partners. Rather, the paradigm for partnership involved mutual investment of partnership capital and work, and it was effected with a qinyan—often before the court. Qinyan played a central role in changing the status of merchants from colleagues to partners, but commerce is hardly the only domain in which the qinyan served to redefine a relationship between two individuals. The centrality of the qinyan is actually a theme throughout medieval Jewish life, and I now proceed to explore its use in domains other than commerce.

Qinyan in Other Domains As I have already mentioned, the Talmud doesn’t establish a paradigm for commercial partnership, but instead establishes joint ownership in a courtyard as a paradigm for partnership, 186 akin to the general category of joint ownership (shirkat al-milk) in Islamic law.187 The inextricability of commercial partnerships and joint ownership in a courtyard from the earliest codifications of Jewish law strengthens the suggestion that data from the architecture of houses and social practice concerning the distribution and transfer of that ownership can shed light on practice in commercial partnership since, as Baber Johansen points out, “the degree to which a legal system differentiates and delineates legal subsystems is dependent on the degree to which the society in which it exists develops functionally specialized subsystems.”188 Briefly examining ownership of “immovable” property (in this case, a share interest in a house) sheds light on details central to the idea of partnership and the importance of these details in mercantile cooperation. In describing the general structure of joint ownership of a home in the Geniza period, Goitein points to a general division of homes into “common and undivided” shares as opposed to distinct units; 189

99

100

Partnership as Culture

in outlining domestic architecture, he understands Edward William Lane’s nineteenth-century description of “a central court around which the buildings would cluster” 190 to be important for understanding the architecture of the Geniza period.191 Goitein points out that the barriers to partnership in owning a home, such as they were, fell neither along familial nor confessional lines: ownership of the shares “frequently changed hands. Partnerships with outsiders, even members of another religion, were common. The right of preemption, intended to keep aliens out, was often waived or disregarded.” 192 Furthermore, individuals often owned shares in multiple houses. In this, the parallels with mercantile cooperation are suggestive: each merchant sat at the center of a constellation of overlapping relationships, and the pool of potential partners was not restrictive. Although Greif understood a guildlike coalition to exist among the “Maghribī” traders, which would not freely admit new members, real estate transactions suggest an openness to “outside” partners in immovable property. I submit that this “openness” cut across domains and included commercial cooperation as well. Furthermore, just as “descriptions of entrances in the Geniza documents are very explicit and profuse,” 193 marking the transition from public to private space, so too the commercial partnership agreements focus on the transition from being members of an undifferentiated public to being intimates in commerce.194 The initiation of an ordinary partnership through the requisite placement of coins in a common purse metaphorically brings the partners across the threshold. Although this act is mentioned throughout the Jewish legal sources and Islamic legal sources alike195 and its inclusion might be thought to be purely formulaic, Geniza documents allude to “al-wasat” in nonformulaic phrases as well as in formularies and legal documents, 196 suggesting that the partners did indeed conceive of their common corporate interest. There is no reason to believe that the act of lifting up the common purse did not actually take place when the partnership was committed to writing; almost invariably, the joint capital was brought as specie and could have indeed been raised in a common purse.197

Jewish Law and Jewish Life

The Geniza evidence supports the idea of a corporate identity for partnership: TS 10 J 7.6 B even allocates a certain share of profits for the “middle.” Merchants’ understanding that a partnership had an identity of its own parallels that of a shared courtyard, which itself has a common identity and does not simply consist of adjacent yet independent plots. Likewise, TS 13 J 8.13198 records that a “partnership owes [a certain individual] fifty-two and two-thirds dinars”: that the debt is ascribed to the partnership and not to specific individuals is striking, particularly in light of research pointing out that the medieval Islamic world rejected the concept of the corporate person.199 Full corporate identity, such as it was in the Jewish mind-set, was only established through the act of qinyan—that is, lifting up the common purse. The importance ascribed to the act of initiation is manifest in the parallels between the qinyan and the description of entrances from the street to the “private” courtyard. Another area in which the qinyan was obviously of great importance was the marriage ceremony. The joint obligations of partnership relations call to mind tenth- and eleventh-century Palestinianstyle marriage contracts from the Geniza, which also include “parallel undertakings of obligations by the groom and bride” 200 effected in a public marriage ceremony. Significantly, ketubbot (Jewish marriage documents) describe these very same marriages as “partnerships.” 201 Such textual traditions stand in sharp contrast to the formulary literature and geonic responsa alike.202 This suggests that medieval Egyptian Jewish culture conceived of marriage as including detailed— or, minimally, mutually understood—obligations effected through a marriage ceremony which might be likened to the mercantile partners’ lifting up of a common purse. The groom’s obligation to maintain the bride devolved on the former from this point, 203 though the union was actually consummated at the nuptials.204 Likewise, in the case of partnership, Maimonides points out that partners who suffer a loss after lifting up the common purse but before having actually transacted 205 are to divide the loss according to their investments; once they have transacted, the partnership is “consummated” and profits are generally divided equally by the partners.206 Yet some sense of mutuality is

101

102

Partnership as Culture

visible from the moment that the common purse is lifted, even if it is inchoate prior to the initiation of actual joint business. Connections between the marriage ceremony and the initiation of a partnership through qinyan extend to setting as well. Formularies and documents alike spill much ink establishing that the qinyan was confirmed by witnesses, and thus the role of environment or setting in executing the qinyan through witnesses merits discussion here.

The Setting of the Qinyan Although the qinyan could take place outside the court, ratification of an agreement inside the rabbinic court would both associate the partners with one another and make known their mutual obligations. Jewish texts extol the virtues of communal worship and the like (Proverbs 14:28a reads, “A numerous people is the glory of a king”); 207 and the public and above-board nature of transactions executed in the court was likewise undoubtedly seen to be praiseworthy. Seated in the synagogue, the locus of communal prayer, the rabbinic court was also the putative setting for human-divine interaction. Ratifying an agreement in the court could perhaps be seen as giving divine imprimatur to that agreement. Yet even a qinyan executed outside the court, in “private,” would nonetheless require witnesses who would act as a proxy for the community as a whole (and, by extension, as a proxy for that divine imprimatur). Neither partnership nor marriage could be effected without express permission and approval from on high. This divine approval, if you will, extended beyond rituals of initiation: a corollary to the divine imprimatur would certainly be divine oversight of the partners’ behavior over the course of their relationship. The public forum was employed to define the contours of the partnership and the partners’ mutual obligations before God and the community. Indeed, partners might wish to give one another latitude to take advantage of commercial opportunities; yet they would also want the general outlines of their partnership to be defined publicly, in full view of God and the community, lest their fellows transgress such bounds. Transaction-specific and time-sensitive detail is often the province of letters rather than legal documents. Yet partnership

Jewish Law and Jewish Life

agreements lay the groundwork as partners define the bounds of proper behavior, and the public aspect of the setting is clearly important as they do so. Partners periodically rely on the public setting even at the close of their relationship, as court-ratified statements provide final partnership accounting and outline precisely how the common capital had actually been employed.208 In the section that follows, I discuss how Jewish merchants defined the bounds of acceptable behavior in their partnership agreements, and I illuminate the role of discretion in defining many types of relationship.

Discretion and Its Limits

‫) זהובים ולי‬9( ]. . .[ ‫) לכיס מאתים זהובים טובים ושקולים‬8( ‫) בו בכל בידדי סחורה וכל‬10( ]. . .[ ‫אני מסעוד עשרה זהובים‬ ‫) כל דבר לישא וליתן בו כדרך כל‬11( . . . ]. . . ‫מיני פרקמט[יא‬ ‫) וכל אשר ירחמו מן השמים אפילו עד מציאה‬19( ]. . . ‫הסוחר[ים‬ ‫שתבוא לידינו שתהא בינינו באמצע‬ (8) (that we placed) in a purse two hundred good weighed gold pieces [. . .] (9) gold pieces, and I, Mas‘ūd, have ten gold pieces [. . .] (10) therein in all that is in my hands as merchandise and all types of goods [. . .] (11) transact in any item therein in the manner of all merchant[s . . .] (19) and all that which the Heavens mercifully bestow, even if it is a found item which comes into our hands, will be for both of us.209 ENA NS 17.35, ll. 8–11, 19 (5*)

Ownership implies discretion. That is to say, within the limits established by every society, one may treat one’s chattel as one might wish. Yet discretion in the use and disposal of one’s chattel becomes much more complicated when ownership is shared by two or more individuals. By the same token, when an individual acts as an agent with the property of another, the agent may be required to act with discretion—that is to say, to make decisions about how best to fulfill the role of agent. Cooperating with another person always requires negotiating competing interests; legal and economic structures exist

103

104

Partnership as Culture

in large part to order and organize how social groups navigate these interests. In this section, I discuss how the Jewish merchants of medieval Egypt organized their lives around the concept of discretion. I reveal commercial cooperation to rest on a continuum structured according to the varying levels of discretion afforded agents and partners. I also demonstrate the overlapping networks of commercial relationships undertaken by the Geniza merchants to reflect this continuum, and reveal how both Jewish and Islamic law integrate the concept of discretion into their formulations of the law of mercantile cooperation. Finally, by studying the social role of discretion, I will explain why the Geniza merchants simultaneously maintained the structures of both agency and partnership and continued to use them throughout their productive lifetimes.

Defining a Relationship Through Discretion Jewish law and Islamic law alike afford merchants the opportunity to define the bounds of acceptable behavior on the part of their agents and partners. Yet the economic and social role of agency transactions is typically much more circumscribed (though not necessarily less frequent or important) than that of partnerships. Partnerships may encompass multiple transactions and may be contracted for a substantial length of time—and, significantly, some types of partnerships involve two or more individuals acting with discretion. In contrast, specific “business-connected tasks or favors” described by formal friendship or quid pro quo agency would likely concern a single transaction and be subject to whatever narrow parameters were established at the time the agent was appointed. Geniza letters demonstrate that formal friends were often given limited discretion, as letters frequently include exacting detail as to the commodity to be sold or purchased, and sometimes even specify the anticipated transaction price. Formal friends are encouraged to “act according to your own judgment,” 210 yet even if one’s fellow was at some distance, the discretion granted the agent in executing a specific transaction was limited.211 In this subsection, I show how the limits on discretionary power defined agency

Jewish Law and Jewish Life

relationships as the Geniza merchants understood them, after which I proceed to discuss the broader discretionary power afforded partners as opposed to agents. That an agent’s discretionary power is to be limited is clear both from classical Jewish legal materials and Geniza documents. In the first chapter of his Hilkhot Sheluĥin ve-Shutafin, Maimonides relies on the talmudic principle “One’s agent is considered as oneself” 212 as a fundamental underpinning of agency law. Yet he also explains in light of the Talmud’s discussion of agency that the act of an agent who “transgressed the words (of the principal)” is considered null and void.213 This suggests that mutual understanding of the agent’s role and the bounds of the agent’s discretion is part and parcel of agency appointment. Maimonides explains that ordinary agents need not be appointed with a written document; such agreements would have been unnecessary when the nature of the task at hand was specific and clear. Maimonides therefore writes that when an agent oversteps these narrow specified instructions, the principal may nullify the agent’s action by claiming, “I sent you to advance my cause and not to pervert it.” 214 On the other hand, partners would be unable to make this sort of claim, since partnership relies on the idea of mutual ownership and (as will be seen) corresponding mutual discretion on the part of the partners. However, Jewish law does allow a principal to grant an agent broad discretion by waiving the right to such a claim.215 Geniza documents reveal just such waivers.216 Jewish formulary literature does not include this particular phrase in agency appointment documents, but Hai Gaon’s formulary does surprisingly reveal it in appointing an agent to effect a marriage.217 However, Jewish formularies do periodically employ a similar phrase deriving from the Talmud, “Whatever is im­posed by the court, whether to benefit me or to obligate me, I accept upon myself,” 218 thereby giving the agent broad license—although perhaps more limited than what would be granted by waiving the aforementioned claim. 219 That the language used by Maimonides, Jewish formularies, and the Talmud also appears in Geniza documents suggests both that ordinary agents have but limited power (although the power can be broadened) and that rabbinic structures

105

106

Partnership as Culture

for broadening this power were considered when actual powers of attorney were written.220 Indeed, detail, specificity, and circumscribed discretion accompany even broad agency agreements. The Geniza does reveal agency documents that are essentially unlimited powers of attorney, freeing the agent from the principal’s claim that “I sent you to advance my cause,” but even these documents often mention the specific claims the agents have been retained to prosecute, and they go so far as to outline the actions the agent may take in prosecuting those claims. One such document, TS 8 J 4.7, specifies the very commodities that made up the claim that the agent is to prosecute; and although ENA NS 50.32 (1*) empowers the agent to “claim from any person at all,” 221 it does specify “among them, (his) hon(or and) hol(iness) Mr. Tamīm.” 222 Even though the breadth of powers assigned to the agent confirm his or her place as the principal’s general representative, the added specificity serves to strengthen his or her role in the collection of a particular claim and to parry a debtor’s potential claim that the agent was not actually his or her counterparty (and therefore he or she need not repay the agent).223 Thus, where a principal assigns to his or her agent the right to claim from “a joint enterprise (Judeo-Arabic, ‘mu‘āmala’), a claim, and a rental agreement,” 224 an agreement so specified would give the renter, debtor, or former partner a sense of assurance that the agent was indeed empowered to settle the specific claim and release him or her from further claims. That is to say, the specificity of detail provided here in an unlimited power of attorney would actually help the agent settle his or her principal’s claims, and as such it stresses the fact that agency is indeed undertaken for specific ventures in which the agent is given little actual discretion—even when agency is enacted through an “unlimited” power of attorney. In certain situations, the line between agents and partners might seem cloudy: Maimonides rules that an agent may pursue claims against a principal’s entire bailment when the agent himself or herself is granted a portion of proceeds emerging from those claims.225 This approach follows the talmudic aphorism that “one who is empowered to pursue claims concerning part [of a bailment] may do so concerning the whole.” 226 In such a situation, the “agent’s” profit-sharing

Jewish Law and Jewish Life

stake in the outcome would make him or her seem like a partner, and indeed Maimonides’ commentators describe the agent as such.227 As we have seen before, ownership establishes the boundary between agency and partnership. Since he or she is a “partner,” this particular “agent” is granted discretion to pursue claims concerning the whole. Geniza documents reveal this very case: TS NS J 11 (2*) grants the “agent” Solomon b. Mevorakh power to collect on partnership assets and to release debtors from further liabilities on behalf of three other individuals. Yet since Solomon and the very same three principals seen in this document are found in another document (TS 10 J 4.16, 14a*) as partners, it would seem that Solomon was a partner retained by his fellows to liquidate assets and collect on debts for the whole. Sharing in the discretion ascribed to partners, Solomon would be empowered to act in such a situation on behalf of the whole even without a document granting him permission to do so.228 Significantly, the permissions granted Solomon in TS NS J 11 (2*; lines 4–6 in the document) are narrower than those appearing in other documents as well as in the formularies for agency appointment; 229 in particular, Solomon is explicitly prevented from appointing an agent to act in his place.230 Here, too, it would seem that the talmudic and Maimonidean distinction between agents and partners holds: since Solomon is considered a partner, the document explicitly prohibits appointment of a secondary agent, which ordinary agency documents would permit.231 If Solomon were to appoint an agent, this secondary agent would have the power to pursue Solomon’s own claims since the agent would have been appointed by Solomon. However, the secondary agent would not be empowered to pursue the claims of Solomon’s partners, since the secondary agent would neither have been appointed directly by Solomon’s partners nor have had an ownership stake in the partnership as a whole. When settling a claim, partners differ from agents in that the former have a share in the claim itself, whereas agents perform their task either expecting to be compensated with quid pro quo favors from their “business friends” or to receive a fixed compensation for their efforts. Both the range of activities that the agent may perform and the discretion afforded the agent are narrower than those of the partner—though, once again,

107

108

Partnership as Culture

the agent does typically have the right to appoint a secondary agent, who would likewise be afforded only limited discretionary powers. In order to emphasize this point, let us turn from discretion af­forded agents to that afforded partners. Although the role of agents as representatives of their principals in executing a single transaction was clearly defined and specific, partnership filled a broader range of economic roles. Therefore, Geniza documents reveal partners to have granted one another varying degrees of discretion; and partnership agreements established, described, and circumscribed this discretion in a manner clear to all concerned. Legal agreements from the Geniza show a continuum in ordinary partnerships from unlimited partnerships, for which the proceeds from every transaction of each of the partners are ascribed to the partnership (including, as seen in the incipit to this section, “even a found item which comes into our hands”), to limited partnerships, which might have focused on transactions in a single commodity. The incipit, from ENA NS 17.35 (5*), provides an example of an unlimited partnership, explaining “all that which the Heavens mercifully bestow, even a found item which comes into our hands, will be for both of us.” 232 Although some Jewish jurists point out problems with the concept of the unlimited partnership, 233 Jewish formularies do mention the possibility that found items could be ascribed to a partnership.234 Maimonides’ code does not explicitly discuss unlimited partnerships, but he would likely have allowed such relationships to stand, as he permits whatever conditions the partners might choose to make.235 Jewish law differentiates between partnership and agency, and it further distinguishes among partnerships between unlimited and limited partnerships. Limited partnerships also divide into general and specified partnerships. Limited partnerships could be contracted for business in a single commodity, but they also could be “general”; that is to say, the partners need not specify the commodities to be traded. Although Islamic law shares all these economic structures, it groups them differently. Islamic law turns to agency law for the underpinnings of partnership law, but Ĥanaf ī law also recognizes a mode of unlimited partnership (Arabic, “mufāwada”) whose structure is entirely distinct from agency law. However, the Geniza documents approach

Jewish Law and Jewish Life

the concept of discretion differently from Islamic law. In the following brief survey of the structures of Ĥanaf ī partnership, particularly through the eyes of Sarakhsī, I reveal some of these divergences— notably, that unlimited partnerships in the Geniza look nothing like the mufāwada, and that the limited partnerships in the Geniza often give partners broad discretion whereas the Islamic formularies do not. As we will see, Jewish merchants’ opportunism often relied on this broad discretion. Sarakhsī explains in his legal code that an ordinary partnership (Arabic, “‘inān”) can be either specified or general.236 The general partnership grants partners broad discretion and permits the sort of opportunistic mercantile activity suggested by the broad range of ­commodities often seen on bills of lading in the Geniza. Indeed, TS 12.710 verso, a document written in Hebrew, allows the partners to transact in “whatever sort” of merchandise presents itself. In the main, the preserved portions of Geniza documents concerning partnership also contain no specification whatsoever of the commodities to be traded. Of those that do provide some sort of specification, the vast majority are partnerships in a shop or a specific concern such as a sugar factory. Although the majority of ordinary partnerships situate the partners side by side, only about half of the ordinary partnerships involving long-distance trade furnish any description whatsoever of the nature of the commodities to be traded.237 Additionally, notwith­standing that Goitein believed traders typically “had one article as their main business,” 238 traders’ letters make it clear that the commodities in which any individual transacted were highly varied. Furthermore, if traders had indeed restricted their activity to a specific commodity or a narrow range of commodities, the expansive language seen commonly in release documents, containing a litany of potential claims, would have been entirely unnecessary.239 In contrast, Islamic formularies suggest an understanding that partnerships were often specified rather than general, 240 in consonance with the idea that ordinary partnership is based on the principle of agency in Islamic law. The linkage of agency and partnership also leads Islamic jurists to treat the sort of discretion granted ordinary partners differently from the way they are treated in Jewish law. One example of this is the

109

110

Partnership as Culture

treatment of a partner overstepping the bounds of discretion allocated to him or her in a limited partnership.241 Whereas Maimonides allocates profit from any trade in commodities other than those specified in the partnership agreement to the partnership as a whole, Sarakhsī holds that for a specified ‘inān partnership, a transaction in any commodity not specified in the agreement is to be completely alienated from the partnership and ascribed to the offending partner in its entirety.242 This sharpens the connection between Islamic partnership and agency law: partners act as mutual agents, with discretion limited to that defined in the partners’ agreement. Thus the Ĥanaf ī formulary of al-Taĥāwī and the Mālikī formulary of al-Tūlaytulī both seem to permit the commodities being traded by the partners to be detailed in the agreement, and the Shāfi‘ī formulary of al-Nuwayrī explains that the partners have agreed on the same.243 By contrast, the Jewish formularies do not contain such specifications.244 This suggests that discretion accompanies an ownership stake in the “bailment,” giving partners broad license to choose the commodities in which they may transact. The perspective of the Geniza documents on unlimited partnership also differs from that of Sarakhsī. His discussion of ordinary partnerships considers the latter only a concession to the difficulty in properly forming a Ĥanaf ī mufāwada.245 That is to say, Sarakhsī views the mufāwada as the paradigm for ordinary partnerships. However, as Udovitch explains, the mufāwada is a highly restrictive form of partnership and is difficult to form because it demands “equality of the partners in all respects. This applies not only to the amount of each one’s investment and to the division of profits and losses between them, but also to the personal status of the partners.”246 The mutual discretion granted to partners in a mufāwada suggests parallels with the responsibilities and privileges granted partners in Jewish law: Udovitch points out that the mufāwada partnership “would comprehend the power of agency (wakāla) with respect to an unknown subject and the obligation of surety (kafāla) with respect to a thing undefined.”247 Even though the mufāwada subsumes surety along with agency, the ‘inān subsumes agency alone, and this distinction plays out in defining the role of partners in an ‘inān. In light of

Jewish Law and Jewish Life

this, Sarakhsī’s ruling concerning the specified ‘inān is eminently reasonable: overstepping one’s limited discretion alienates the offending transaction from the partnership.248 Sarakhsī may see the mufāwada rather than the ‘inān as the paradigm for general partnerships, but the Geniza documents that describe unlimited partnerships do not fit Sarakhsī’s model for the mufāwada. Indeed, Sarakhsī’s testament that “most people do not know all the rules of the mufāwada”249 rings true; TS 8 J 27.11 describes an unlimited (and hence general) partnership by stating that the partners are to share “all that which God will obtain for them and profit them in any manner and [even an item] found on the ground,” 250 but the process through which the partnership was established does not fulfill the requirements of the mufāwada, since one of the partners has brought his investment not as ready cash but according to a payment schedule.251 Likewise, ENA NS 17.35 (5*) reveals an unlimited partnership to which one investor brings two hundred gold pieces and the other ten, contravening the principle of equality that is the basis of the Ĥanaf ī mufāwada.252 Sarakhsī’s concern that the basic rules of Ĥanaf ī mufāwada were not broadly known is also reflected in the fact that neither al-Taĥāwī’s nor al-Tūlaytulī’s formulary bears a separate formula for the mufāwada.253 If a dialectical relationship did indeed exist between the shurūt literature and documents in practice as posited by Wael Hallaq, 254 the absence of this sort of document from these important formulary works could suggest that the requirement that partners be equal in religious status, investment, profit, and loss placed a burden on potential partners so onerous that many chose to contract an ‘inān partnership instead of a mufāwada.255 Certainly, the requirement of complete “equality” would have made this an unwieldy and inflexible vehicle. Additionally, in a trading community relying on overlapping trading relationships, preventing mufāwada partners from investing outside their single dyadic relationship (as prescribed by Islamic law) might also have made this arrangement impracticable. The scant Geniza evidence of the term mufāwada suggests something other than the partnership of equals that Sarakhsī envisioned. Although the presence or absence of a particular term in the Geniza

111

112

Partnership as Culture

corpus is not definitive proof that a legal institution was not in use under a different name in either Hebrew or Judeo-Arabic, 256 this term appears in the Geniza to refer to mercantile cooperation very infrequently.257 One such document is ULC Or 1080 J 290 (15*), adjudicating a dispute between a junior partner and a senior.258 Although TS 28.6 B describes an agreement like an “unlimited investment partnership” in which the partners were prevented from participating in outside partnerships, this document does not use the Islamic legal idiom of mufāwada to describe this particular relationship. In sum, the discretionary structures seen in Jewish law for agency relationships as well as for general, specific, and unlimited partnerships all resonate with those seen in the Geniza documents, whereas the corresponding structures in Islamic law for the most part do not. Jewish merchants used agency and partnership models bearing different levels of discretion to maintain complex webs of commercial relationships. Because agents were granted only limited discretion, they could serve a number of principals simultaneously. Yet partners were often granted much broader discretion. Having shown in this subsection how levels of discretion defined the structures of commercial cooperation, I proceed in the next section to explore the specific role discretionary partnerships played in the web of merchants’ interrelationships.

Discretion and the Web of Mercantile Relationships Partners’ ability to manage their web of commercial relationships was defined in part by the demands of each “node” of the web. It may be useful to think of each individual as having a limited amount of discretion to distribute across his or her relationships, manifest in the time and attention demanded by each relationship. Obviously, each node of agency relations would have demanded only a small amount of this discretion. But where partners’ discretion was not limited by specification of commodities in a partnership agreement, or where partners took on an unlimited partnership, the partnership would certainly have demanded a larger modicum of discretion and correspondingly a greater amount of time and attention; a merchant could

Jewish Law and Jewish Life

obviously take on only one unlimited partnership at a time. Of course, the converse was true as well: the circumscribed nature of limited partnerships would have permitted a single individual to partake in a host of limited partnerships at a given time and to transact in a separate commodity for each partnership. Geniza documents periodically limit the time and attention to be devoted to a particular partnership: Bodl Ms Heb a 3.8 explains that a senior partner will work only two shifts a week with his fellow. Such an agreement would have given the partners time and attention to devote to other ventures. Merchants could thereby develop overlapping cooperative networks with multiple counterparties. However, Jewish law does regulate these networks: when an individual is involved in a discretionary partnership, his or her ability to pursue other interests beyond that partnership is limited. Indeed, Maimonides prohibits an individual from transacting on his or her own behalf in a commodity in which a limited partnership was not involved unless otherwise stipulated in the partnership agreement; 259 presumably, these outside interests would draw one’s attention away from the partnership.260 Geniza documents reflect Maimonides’ concern; Firkovitch II 1700 13 a I and 13 a III both explicitly prohibit one or more of the partners from involvement with other (perhaps competing) partners. But Maimonides rules that an individual may participate in several partnerships in the same commodity simultaneously.261 Although this might make accounting complicated, the partner’s attention would not be diverted from transacting in that particular commodity. Yet the possibility that an individual might take on multiple discretionary partnerships—and the effects this might have on his or her effectiveness in fulfilling the role of partner—should be considered. Although some Jewish legal opinions would technically have permitted an active partner to take on multiple discretionary partnerships, particularly those in a single commodity, 262 it is likely that the community of traders represented in the Geniza documents would often have restricted themselves to one such partnership at any given time. Likewise, though technically permitted by Jewish law, the practice of polygyny introduced a number of complications on marital partners.263

113

114

Partnership as Culture

As Friedman points out, the conditions for polygyny included establishing each wife in a distinct residence, 264 making the physical bounds of the wife’s relationship absolutely clear. The specification of profits and losses in relationships in which one or more partners had discretion, as opposed to formal friendship activities, is reminiscent of these boundaries. The practice among long-distance traders of establishing long-term sexual and possibly marital partnerships with local residents upon their settling in lands distant from their permanent homes, alluded to by Goitein 265 and colorfully described by Amitav Ghosh in his semi-autobiographical novel In an Antique Land, 266 could technically be described as polygynous, yet such relationships are enacted only when the primary relationship is suspended because of practical circumstances. Thus individuals could have wives in multiple locations yet have only one “active” relationship at a time; likewise, release agreements (seen widely in the Geniza) allowed partners’ relationships to be dormant until subsequently reenacted. While one relationship was dormant, the partners were free to take on other partnerships in which their role was that of discretionary partner. In this vein, Maimonides notes that an individual participating in several joint active partnerships simultaneously would not be able to “keep his eye on the shop while he was practicing his craft.” 267 Exercising discretion for two partnerships would keep one from giving either enterprise proper attention; doing so for long-distance partnerships would open to the door to confusion and even deception in partnership accounting.268 However, even if a single individual could hold discretion for only one partnership at a time, he or she could nevertheless combine being an active partner in either an ordinary partnership or an investment partnership with performing a limitless number of specific agency tasks as a formal friend, as well as being the investor in a limitless number of investment partnerships, and avoid any sense of impropriety or any suspicion of improper accounting. This would explain the allusion in letters to a large number of specific tasks relative to the number of partnerships, for which the recipient of the letter had been granted discretion. It is significant that Udovitch finds only one formal business relationship in a letter in which he sees “nineteen other[. . .]requests that the recipient of the letter carry out a

Jewish Law and Jewish Life

variety of business-connected tasks and favors.”269 Thus active partners described in Bodl Ms Heb a 3.16 are given explicit permission to take their own funds and invest them in other enterprises. The partners Abū al-Ĥasan Yaĥyā ha-Kohen b. Samuel ha-Kohen al-Baghdādī and Abū al-‘Alā ‘Ulla ha-Levi b. Joseph ha-Levi al-Dimashqī are seen in a number of documents, and their role is that of active partner (TS Misc 27.4.29, dated 1093 ce) and investor (TS 8 J 4.11, dated 1092 ce; and Bodl Ms Heb a 3.20, dated 1098 ce). Jewish law would have technically permitted a merchant to participate in multiple discretionary partnerships, just as Jewish law permitted polygamy—and some took part in each of them. Yet discretionary partnerships may have occupied a distinctive role among the strands of a merchant’s web of commercial connections, with merchants relying heavily on quid pro quo agency. The economic risks associated with granting discretion to a fellow would have been controlled in part by limiting the number of discretionary partnerships with which he or she could be involved at a given time. Yet this was not the only way Geniza merchants controlled these risks: merchants had a number of instruments of oversight that helped them manage their discretionary partnerships. I discuss these tools in the next subsection.

Oversight One tool merchants used to control the risks associated with ceding discretion to their fellows was direct oversight. A long-distance trading partnership demanded that partners exercise discretion in the absence of their fellows; not so a shop in a single location, where individuals could witness and approve each other’s transactions. Hai Gaon turns to the question of discretion in explaining whether or not partners will be anchored to a particular shop or commodity. He writes that the partnership agreement must record whether each partner “will transact on his own, or in the presence of his partner,” requiring the latter’s approval.270 Maimonides, too, addresses the issue of joint approval of an individual partners’ actions, explaining that a partner’s actions must be within the scope of local custom, or a priori conditions laid out by the partners in their agreement, or the approval of

115

116

Partnership as Culture

both partners at the moment of the transaction.271 Geniza documents reveal agreements in which a senior partner is given the power to approve all transactions, as well as others in which partners are given independent right of free disposal of partnership assets.272 The terms of discretion, including both the range of commodities to be traded and whether or not partners must approve each other’s transactions, are therefore an essential component of the partnership relationship and must be defined in advance. The Geniza documents reflect these concerns as seen in the Jewish legal literature. Direct in-person oversight was not the only tool Jewish merchants used; in granting each other discretion, partners often use the language of asking for divine oversight or guidance (Judeo-Arabic, “istakharna,” “We have asked [God] for guidance”).273 Goitein refers to this language in his discussion of travel and divination used to determine an auspicious time for a journey; 274 Cohen notes that Goitein veered away from taking this as magic, since merchants sought guidance from God, not from other supernatural forces.275 This plea for otherworldly intervention is emphasized with phrases pointing to providence or serendipity such as “we will buy the merchandise we chance upon.”276 These terms highlight the uncertainty involved in contracting a business partnership and the idea that the partners are metaphorically fellow travelers on a journey overseen by God. This use of the first person plural is significant, pointing to the joint investment of financial assets, physical labor, and psychological attentiveness from the partners. Indeed, the phrase is a hallmark of ordinary partnerships; TS 13 J 3.19 reveals partners agreeing to avoid deceiving each other and relying on divine supervision—and acknowledging the role of God in the success or failure of the venture.277 Ascribing divine guidance to the partnership highlights both the role of divine oversight and partners’ discretion in such partnerships. God is understood to punish a partner who defects, and also to facilitate the profitability of the partnership.278 Indeed, God not only inspires and guides the partners in the exercise of their discretion but even guides the forces of the market.279 The relationship between humans and God suggested in the Geniza documents and illuminated in biblical and rabbinic texts drives home

Jewish Law and Jewish Life

the disjunction between agency and discretion: indentured to God as described in Leviticus 25:55 (“For it is to Me that the Israelites are servants”), the Jewish people would not have had the power to exercise discretion within the divine covenant or even to negotiate this covenant.280 That is, although Jewish law often accepts multiple opinions as valid (cf. Mishna Yevamot 1:4), the individual cannot exercise discretion in choosing one of these opinions. Rather, the individual is bound to the opinion of the particular jurisprudential circle of which he or she is an adherent; Mishna Avot 1:6 reads, “obtain for yourself a master.” In this vein, Sifre Deuteronomy 154 explains that even if the individual believes legal decisors’ opinions to be incorrect, he or she is nonetheless required to adhere to such opinions. The practice of communities’ self-identification in the medieval period ­ rimary (although not necessarily exclusive) connecthrough their p tions to one ­academy (whether that of Babylonia or the Palestinian Academy) highlights this lack of individual discretion.281 It is safe to suggest, therefore, that Jewish tradition ascribed little if any discretion to the individual in his or her relationship with God. Thus the connections drawn by Goitein between formal friendship and the Biblical covenant are apposite:282 neither formal friendship nor the Biblical covenant was a relationship for which the agent was allowed to exercise any discretion. In contrast, partners with other human beings are allowed to exercise discretion, remaining servants to God alone; Talmud Bavli Qiddushin 22b looks disapprovingly on an Israelite who, having already been granted a Divine master, seeks to gain another master in the temporal realm. Yet rabbinic sources do suggest that God does partner with one stratum of Jewish society: the rabbinic elite. Talmud Bavli Shabbat 10a reports that “Scripture describes every judge who judges with complete fairness for even an hour as a partner with the Holy One, Blessed be He, in the act of creation.” The act of judicial discretion is seen as one of partnership, whereas Jewish practice (lacking discretion) is a relationship of indenture. In this same vein, Midrash Mishlei 86 reports that “anyone who hears a curse and keeps silent is a partner to the Holy One, Blessed be He.” Again, it is the exercise of discretion that defines one as a partner.

117

118

Partnership as Culture

Agency and ordinary partnership sit on a continuum of relationships defined by the levels of discretion afforded their various participants. Yet these are not the only two modes of commercial cooperation used by the Geniza merchants. Investment partnership also occupied an important economic and social role, as revealed by legal documents. The complex nature of investment partnerships as understood by Jewish law (half a loan, half a deposit) might seem to confound the neat typology of commercial cooperation organized according to participants’ discretion. However, in the next section I will show this complexity to support rather than challenge this typology.

Completing the Continuum: The Investment Partnership Distinct from the ordinary partnership, the investment partnership occupied a space in the economic and social life of the Jewish community that was in many ways at the opposite end of the spectrum from formal friendship. Whereas formal friendship allowed individuals to make specific requests of their fellows while they were distant from the actual locus of the transaction, the investment partnership allowed a distant partner to avail himself or herself of opportunities in the moment. Formal friendship was described by specific commands concerning a fixed number of transactions, although the active partner in an investment partnership would be able to transact at will. Thus the two models for commercial cooperation are distinguished by the level of discretion granted the distant merchant. Yet agency or formal friendship and investment partnership are alike in other ways that are no less significant. According to Jewish law, the investment partnership is to be considered half a loan, half a deposit. Therefore, the active partner in an investment partnership is acting in part as a bailee—just like the formal friend. Yet according to Maimonides, profits and losses from the investment partnership are not to be divided precisely along these lines—that is, with the investor receiving all the profits ascribed to the amount designated a bailment placed with the active partner, and the active partner receiving all the profits ascribed to the amount designated a loan. Indeed, according to Maimonides, such a distribution would generate the impression that

Jewish Law and Jewish Life

“the active partner was working with the half designated a bailment in return for the loan.”283 In light of this division of partnership division into “a loan and a bailment,” Maimonides requires the investor to pay the active partner some sort of compensation in return for his service, to avoid “the dust of usury.” This compensation or “wage,” 284 allocated to the active partner alone, acknowledges that only one party is exercising discretion in transacting business, and correspondingly the individual is to be compensated for exercising that discretion. In the case of ordinary partnerships, both parties may take some funds from common partnership capital for their personal sustenance, but wages in investment partnerships are to be allocated to the active partner alone. With this in mind, investment partnership agreements in the Geniza often allocate soannme amount (whether a fixed amount or a proportional share of the profits) to the active partner; and both Jewish and Islamic legal codes assign the active partner in an investment partnership (that is, the ‘isqa and the qirād, respectively) a larger share of profits than the investor.285 Notwithstanding that an agent would have been compensated for nondiscretionary transactions either indirectly through quid pro quo favors or directly through payment of an agency fee, discretionary investment partnership was often structured using the ‘isqa ­agreement, which compensated the active partner for the discretion he or she exercised but also held him or her accountable for that discretion (by holding the active partner responsible for a share of the losses). As investment partnerships assign discretion to the active partner alone, both the rights and obligations of the investing partner are more limited than those of partners in an ordinary partnership. Indeed, the limited role of the investor in such agreements is reminiscent of one who rents a share in a house instead of purchasing that share as a partner. Goitein mentions a betrothal agreement in which “a daughter receives the uppermost floor of a house; if she preferred to live elsewhere, she would receive the rent, but her father and his heirs were responsible for the payment of the ground rent and the watchmen”; and “a contract for the lease of a qā‘a [in this case, the ground

119

120

Partnership as Culture

floor of a house] for two years stipulates that the lessee was not permitted to install anything for the production of rose water or for the use of litharge or arsenic, or for other operations requiring the use of fire.” 286 It is significant that “a later Muslim author defines the term prostitute by ‘a woman living in a funduq (Arabic, ‘guest house’)’,” 287 as opposed to a wife, who is called “house.” 288 In all these materials, one-sided agency and bilateral partnership289 are clearly distinguished. The rights and obligations of renters, then, were more circumscribed than those of part-owners in a house; control was retained by the owners, those who received the rent. Rent was to be paid “without delay or argument,” 290 a phrase commonly seen in the repayment of loans.291 Interestingly, Bodl Ms Heb a 3.5 even relies on language often seen in loan documents to describe an uncle’s role in managing his orphaned nephews’ assets. Thus, initiating a loan, depositing investment capital with an active partner, and home rental would all be viewed similarly. Significantly, then, the transformation of a commenda into a loan to be repaid at fixed interest described in a Geniza document (BM Or 10126.6) represents but a subtle shift in the partners’ relationship. Just as the Geniza culture viewed those with an ownership stake in a home differently from those who rented, so too were investors who retained an active partner in an investment partnership viewed differently from joint active partners in an ordinary partnership. As mentioned, Jewish law grants no recourse to an investor whose active partner failed to fulfill his “agency.”292 However, the active partner is liable for losses to the portion of partnership capital that is described as a loan. The unilateral wage, allocated to the active partner in an investment partnership, is akin to the rent a tenant pays a landlord for the use of space that does not belong to him or her. Geniza documents reveal that even the wealthy rented living spaces, and some rented space in buildings in which they had an ownership share.293 By the same token, traders must have had both joint active partnership and investment partnership relationships with the same counterparties. At times, it seems that this could lead to confusion; the witnesses to ULC Or 1080 J 290 (15*) are apparently uncertain as to the specific nature of the relationship under discussion. Yet investment

Jewish Law and Jewish Life

partnerships were an important commercial vehicle, particularly for long-distance transactions, because they allowed the active partner to participate in the partnership and even gave the active partner discretion to act opportunistically, giving the investor the resources to focus on other ventures. Models of commercial cooperation as seen in the Geniza documents, then, should be viewed in light of the discretion they give to the counterparties. These models run the gamut from those giving the investor full discretion in trading decisions (agency) to those giving both partners discretion (ordinary partnership), to those giving the active partner full discretion to the exclusion of the investor (investment partnership). Partners who exercise discretion are also paid for that discretion above and beyond their share in partnership capital—whether this is a “sustenance” payment for ordinary partners or the usury-avoiding wage for the active partner in an investment partnership. Yet the Geniza documents also attach a further element to discretion: liability. When following the model of the Jewish ‘isqa, Geniza documents hold the discretionary partner liable for losses to the partnership. And so I now explore the role that liability played in structuring mercantile cooperation.

“and they are stolen from the man’s house” The second passage from Exodus 22:6 raises the question of what a bailee’s responsibility for losses due to theft might be—and taking on any such responsibility leads one naturally to think about what corresponding benefit might accrue to the bailee. Indeed, it is difficult to imagine anyone wishing to take on such a responsibility in the absence of some benefit, even if that benefit is the promise of future quid pro quo favors or simply the feeling of having altruistically assisted one’s fellow. In this section, I bring together what I have sketched out in the previous sections in terms of the connections among bailment and ownership, transactional discretion, liability for losses, and one’s eligibility for profits from trading activity. Since the narrative sources of Jewish and Islamic law lay out different models for allocating profits

121

122

Partnership as Culture

or losses to merchants, the general affinity of the Geniza documents with the models of Jewish law clearly emerges.

Liability for Loss (and Eligibility for Profit)

‫) לאבו אסחק ואליא קיראט‬7( ‫ ואלפאידה [[נצף]] אליג קיראט‬. . . )6( ‫) אלכסארה אלנצף ואלנצף‬8( ‫לצאחב אלמאל‬ (6) . . . As for profit, [strikeout: half] 13 twenty-fourths (7) will be for Abū Isĥaq and 11 twenty-fourths will be for the proprietor of the capital (8) As for loss, half and half. Mosseri A 126, ll. 6–8

As seen in this incipit, Geniza documents often consider eligibility for profit and liability for loss in the same moment. In the case of Mosseri A 126, the partnership being described is clearly an investment partnership, as “the proprietor of the capital” is someone other than the active partner Abū Isĥaq. It would seem that the scribe initially recorded that profits were to be divided evenly and then struck out what he had written and wrote “13 qirāts” (that is, twentyfourths). The additional qirāt of partnership profits allocated to Abū Isĥaq beyond the “half and half” division of partnership losses corresponds to the “wage” described in the previous section: Abū Isĥaq is to be compensated for his exercise of discretion in transacting for the partnership. Yet along with that discretion comes greater responsibility: unlike an agent, Abū Isĥaq is to be held liable for losses. In this section, I explore the connections between the allocation of profits and the allocation of losses to the various parties in partnership and agency, and how investment partnership differs from ordinary partnership and from agency in terms of the allocation of profits and losses in Jewish law, Islamic law, and the Geniza documents.

Dividing Profits and Losses As mentioned above, most Jewish legal sources differentiate between liability for partners and agents—and, indeed, between paid and

Jewish Law and Jewish Life

unpaid agents. Furthermore, Jewish legal sources describe liability as increasing in accordance with one’s increasing level of ownership and discretion in the bailment. Thus nondiscretionary agents might be entitled to a fee of some sort, but partners—whether in an ordinary partnership or in an investment partnership—are entitled to a share of partnership profits. Likewise, when a merchant crosses the threshold from agency into partnership in Jewish law, he or she also acquires a share of liability for losses. It may be said, then, that Jewish law binds together discretion with an ownership stake in partnership capital, along with its corresponding privileges and responsibilities. However, as I have explained, the distinctions in Islamic law between partnership and agency are not so clear-cut. Islamic law does not link discretion to ownership and liability; active partners in an investment partnership are not liable for losses due to ordinary trading. But Geniza documents concerning agency agreements, ordinary partnerships, and investment partnerships generally link together ownership, discretion, and liability in the pattern described by Jewish law. Interestingly, the linkage in Jewish legal sources between ownership and liability for loss (or eligibility for profits) in an ordinary partnership does not turn primarily to each partner’s capital investment. Rather, it would seem that these sources understand the exercise of partners’ discretion and their investment of time and effort to be the ultimate source of profits rather than the capital itself. This may well have been an offshoot of Jewish prohibitions on interest; that is to say, capital per se cannot be the source of profits or losses, only labor. Thus, Maimonides’ paradigm for ordinary partnership distributes profits or losses equally according to the number of partners and not according to each partner’s relative investment.294 However, he also reserves for the partners the right to establish a different distribution of profits, and also to establish a distribution of profits different from the distribution of losses.295 Although Shetarot of Barzillai does show such flexibility in a formula for an agricultural partnership, 296 the formulary literature generally relies on an even distribution of profits and losses.297 In contrast, the paradigmatic division of partnership profits in Islamic law follows the relative capital investment of the partners. The

123

124

Partnership as Culture

Ĥanaf ī refrain that partners have the right to whatever distribution they may choose calls to mind the Maimonidean catchphrase that “any condition made in financial matters is held to be effective.” 298 Yet the Shāfi‘ī, Mālikī, and Zāhirī views are much more restrictive, 299 and even Ĥanaf ī law is only flexible to a point: Sarakhsī explains that profits may be divided differently from losses, but he nonetheless requires losses to follow the partners’ relative investment.300 In the formulary literature, al-Tūlaytulī’s formulary actually omits the division of losses in an ‘inān partnership; this may suggest that the division was assumed by the parties to follow the division of partnership capital.301 Yet al-Taĥāwī is explicit in his formulary that losses are to be split evenly.302 The Geniza documents accord more closely with Jewish law: despite the fact that Geniza documents show the distribution of capital investment between partners to have varied greatly across partnerships, with a number of partnerships showing the “senior” partner (that is, the larger investor) to have brought more than 95 percent of partnership capital, the majority of ordinary partnerships seen in Geniza documents for which the distribution of profits is preserved do indeed reveal profits to be distributed equally across the partners.303 It would seem, then, that distribution of investment capital across the partners was not the key factor employed in establishing the distribution of partnership profits, and that both the geonic legal sources and economic practice as reflected in the Geniza documents generally rule in accordance with Samuel’s statement on Talmud Bavli Ketubbot 93a-b: “When two individuals take a common purse and one contributes one hundred zuz and the other two hundred, the profit is to be divided equally.”304 The Jewish legal paradigm suggests that partnership capital is held jointly and that it is work, not capital per se, that brings profits to the partnership. Indeed, as mentioned, Jewish law demands that the investor in an ‘isqa pay some amount to the active partner in return for the latter’s efforts in caring for the portion designated a deposit precisely to avoid the appearance that income accrues to the former simply because he agreed to lend funds to the latter, emphasizing that income does not accrue solely because one has brought capital

Jewish Law and Jewish Life

to a partnership.305 Likewise, partnership is “consummated” at the moment the work of the partnership actually begins, despite the fact that it is contracted when the common funds are lifted up in the common purse: according to Maimonides, artisans who simply contract a partnership are not actually considered partners until they purchase materials jointly and work with it.306 Given the central role played by work as opposed to capital in the assignment of partnership profits, it is unsurprising that Goitein believed many of the partnerships found in the Geniza to have been “nothing but veiled forms of employment” since “medieval people were so opposed to the idea of being in the service of another and preferred the dignity of cooperation.” 307 Yet there are other reasons the Geniza merchants may have preferred the partnership model, which accords closely with the linkage between discretion and liability: relying on the partnership structure subjected partners to regular audits at the end of the partnership term. Further, partners would have had greater responsibility than employees, as the former would be liable for losses due to ordinary trading as well as those due to negligence. Once again, it is the connection between discretion and liability that is central to the Geniza documents. Another essential difference between partnership and employment defies Goitein’s explanation: partnerships do not carry the assurance of a fixed wage, which is typically the essence of an employment agreement. Although Mishna Bava Mesi‘a 7:2–5 allows an employee to sustain himself or herself by consuming agricultural produce under certain conditions,308 employees generally work for a predetermined fixed amount, whether they are “day laborers” receiving a wage309 or “artisans” receiving payment for piecework.310 In contrast, partners are like tenant farmers, who work for a predetermined share of their produce311 even though the final value of that produce is undetermined at the time of their agreement.312 Geniza documents reflect this typology: precious few documents clearly identified as ordinary partnerships allocate partners a fixed wage, and in every one of these cases, both partners are granted some sort of wage for their daily maintenance313 —although not always the same amount.314 This fixed payment was an advance on future partnership distributions rather

125

126

Partnership as Culture

than a day wage per se. Even though partnerships may have occupied the economic role of employment agreements, the distribution of partnership proceeds seen in Geniza documents according to profits and losses instead of according to a fixed wage suggests a cultural choice binding together discretion and liability for losses. The linkage between discretion and liability for losses (and eligibility for profits) is clearest when a partnership has absolutely no common capital—that is, a “work partnership.” Even though most Jewish legal sources declare work partnerships void,315 such partnerships can periodically be found in the Geniza; for instance, INA D 55.8 (6*) describes a partnership among three individuals performing the service of washing the dead in preparation for burial. The agreement does not mention any capital investment required for this particular partnership.316 In fact, a work partnership of this type would have been prohibited by Maimonides. Goitein’s analysis of this specific document describes it as an apprenticeship, since the “newcomer to the partnership received a smaller share in the profit than the experienced members who were already established in the business.” 317 However, other apprenticeships from the Geniza fall under the guidelines established by Maimonides showing the junior partner to have participated in the investment, even if his contribution to the partnership capital as a whole was but a token amount.318 One could conclude, then, that becoming a partner (which often, but not always, involved investing a share of partnership capital) was generally associated with taking on both a modicum of discretion and a share of both profits and losses. The obvious possible exception to this linkage among partnership, discretion, eligibility for profits, and liability for losses would be the investment partnership. Yet, as I show in the next subsection, even investment partnerships maintain this linkage as they are understood by the Geniza documents and the classical sources of Jewish law.

A Loan and a Deposit Investment partnership is a hybrid of agency and partnership models, as the individual doing the work brings no capital to the partnership. The distribution of profits and losses among the Jewish merchants

Jewish Law and Jewish Life

using this instrument says much about how these merchants conceived of their roles, whether as principal and agent or as partners in a shared enterprise. Although Islamic law indemnifies the active partner in an investment partnership from losses due to ordinary trading, the talmudic ‘isqa separates invested capital into half a loan, half a deposit and therefore holds the active partner partially liable. Bearing full liability for the portion reckoned a loan, the active partner generally bears neither liability nor eligibility for profits for the portion reckoned a deposit. Although most of the Jewish legal sources putatively divide the investor’s assets into a loan and a deposit,319 Hai Gaon notes in a responsum that one should not write a separate loan document in addition to the partnership agreement for the fraction of investment capital that is to be denoted a loan to the active partner.320 While the tradition of writing a separate agreement for the “loan” may have existed in Fez,321 investment partnerships in the Geniza do not refer to the division of capital into a loan and a deposit,322 even if liability for losses was shared by both partners. Documents related to partnership that would be exceptions to this principle are TS 10 J 28.10, which may actually have been a loan agreement otherwise unrelated to a partnership agreement, as specific details of any partnership are absent from the document;323 and TS 12.108, which mentions a loan in the fragmentary lines at the beginning of the preserved portion of the document. This sits well with the Jewish formulary literature, which also generally does not mention a loan in the formulae for an investment partnership, though Hai’s formula explicitly notes the division of capital into a loan and a deposit324 and Hai assumes this division even if it is not explicitly stated in the partnership agreement.325 However, the Talmud’s structure of half a loan, half a deposit was only a benchmark: Maimonides permits any division of profits and losses such that the active partner’s share of the profits exceeds his corresponding share of the losses.326 The ‘isqa formula seen in ‘Ittur also vindicates a range of distributions.327 But a geonic responsum requires that the active partner be allocated at least half of partnership profits, and it demands that the active partner receive compensation for his

127

128

Partnership as Culture

work as bailee in addition to this fraction of the profits.328 Shetarot of Hai and Barzillai both offer the partners three options: the two seen in Talmud Bavli Bava Mesi‘a 68b–69a (that is, that profits be divided evenly, with the investor responsible for two-thirds of losses and the active partner responsible for one-third of losses; or the investor garnering one-third of profits and the active partner garnering two-thirds, with losses divided evenly); and a third, allowing profits and losses to be split evenly, with the active partner receiving fixed compensation.329 Geniza documents, too, exhibit a range of distributions. An even split of profits or losses seems to be the most frequently recurring allocation, though this accounts for only about 20 percent of investment partnerships. There are also small groups of documents that allocate 13/24 of profits or 2/3 of profits to the active partner,330 both of which fit the models envisioned by the Jewish legal sources.331 Yet Geniza documents also reveal distributions going beyond these sources: Mosseri VII 17 (3*) and Bodl Ms Heb a 3.5 both allocate a fixed amount of the profits to the investor, with the former explicitly granting the balance to the active partner. Partnership losses, too, show a wider range of distributions in the documents themselves than in the codificatory literature: TS 16.23 (12a*) reveals an agreement for which the active partner had no liability for losses, and Menaĥem Ben-Sasson explains that the practice in Fez was for the active partner not to be liable generally, except in the case of malfeasance,332 though he explains that this practice was restricted to Fez. In a partnership described by TS K 25.153 (10*), an investor indemnifies his active partners from liability for the first ten dinars of losses due to ordinary trading. Yet the common (though not universal) ascription of losses to the active partner suggests an affinity with the model of the ‘isqa and a continued connection between discretion and liability outlined throughout this chapter. This connection is sharpened where both partners bring capital to an investment partnership. Indeed, Maimonides and Sa‘adya Gaon both consider the possibility that both partners will bring funds to an ‘isqa,333 even though only one of the partners will be the active

Jewish Law and Jewish Life

partner.334 In the previous subsection, I discussed the “wage” that accrued to the discretionary partner in an investment partnership; Maimonides declares that when an active partner “works with his or her own [assets] as well as those of his fellow,” the “silent” investor need not allocate his fellow a percentage of the profits as compensation for his or her daily efforts.335 Firkovitch II 1700 12 a II (9*) describes a case that approximates Maimonides’ ruling: the document reveals one Abū al-Faraj to have placed 150 dinars with one Tamīm, who himself brought 10 dinars and traveled with the total to Upper Egypt. Tamīm is allocated a one-time fixed payment of a half-dinar as his “surplus” over Abū al-Faraj, but he is granted no per diem wage and profits are otherwise divided evenly between the two partners. Investment partnerships in the Geniza reveal the active partner to have invested funds in the partnership along with the silent partner only infrequently. However, when both partners invest funds in the partnership, the documents invariably reflect an even division of both profits and losses among the partners.336 The absence of any “surplus” is reminiscent of Maimonides’ statement that such “surplus” is unnecessary when both partners invest in the investment partnership. Having examined in this subsection partners’ eligibility for profit and their liability for losses, it must be noted that the assignment of liability for losses to the active partner in an investment partnership is the clearest evidence of an affinity between mercantile cooperation as it is described in the Geniza documents and the norms of Jewish law. The connections between discretion and liability for losses or eligibility for profits that I have elucidated in this section are deep and multifaceted. Merchants compensated their fellows for judicious exercise of discretion and held them responsible for failing to exercise it appropriately. One important tool merchants used to assess their fellows’ exercise of discretionary power—which may have been unobservable in its details, particularly in the case of long-distance trade—was the Jewish court. By maintaining partnerships of short duration, merchants could constantly reassess the progress of their relationships. In the next section, I discuss how two instruments executed in the Jewish

129

130

Partnership as Culture

courts—the release document and the “oath of partners”—served merchants in their efforts to assess and control the discretion they afforded their fellows.

“if the thief is caught, he shall pay double; if the thief is not caught, the owner of the house shall depose before God” This passage concerns itself with the aftermath of an unexpected event: an individual gave over money or goods to his or her fellow, and they were stolen. In the event that the thief is caught, the owner can be made whole. However, if the thief is not caught, the passage requires that the bailee make some sort of formal statement—as the next passage makes clear—that the bailee did not have a hand in the theft. Such formal statements played an important role in the life of the Geniza merchants no less than in the language of the Bible. Indeed, as I have already made clear with respect to the qinyan, mercantile relationships were often initiated in the public forum of the Jewish court. In this section, I discuss two types of formal statements that—like the bailee’s statement in the biblical passage—come far along into partnership relations rather than at their inauguration: partnership releases and exculpatory oaths.

Deposing Before God

‫) כאן לה עלי‬8( ‫ אתצל כל ואחד מנא אלי כל חק וטלב‬. . . )7( ‫אלאכר ולם יבק לואחד מנא ענד אלאכר דעוי ולא טלב לא ען דין‬ ‫) ען רהן ולא ען רסאלה ולא חואלה ולא כפאלה ולא טלב ען‬9( ‫ולא‬ ‫) ולא ען קרץ ולא ען קראץ ולא טלב‬10( ‫שרכה ולא ען מעאמלה‬ ‫) ולא ען כסראן‬11( ‫ען תגארה ולא ען בצאעה ולא טלב ען רבח‬ ‫ולא ען ראס מאל ולא ען פאידה ולא ען שי מן סאיר אלאשיא‬ ‫) אכתלאפאתהא ותגאייר אצנאפהא ואוצאעהא ואן כל‬12( ‫עלי‬ ‫) אלאכר משבועת השותפין אלואגבה לה‬13( ‫ואחד מנא קד אברא‬ ‫) ומן גמיע אלדעאוי‬14( ‫עלי צאחבה פי הדה אלשרכה ופי גירהא‬ ‫ואלמטאלבאת ומן סאיר אלעלק ואלתבעאת אלתי כאנת לכל‬

Jewish Law and Jewish Life

‫) ואחד מנא עלי אלאכר מן הדה אלשרכה ופי גירהא מימות‬15(  . . . ‫עולם ועד עכשיו‬ (7) . . . each of us received every claim and demand (8) which he had upon the other, and no claim or demand remained for either of us with the other, neither a claim nor a demand, neither a debt, (9) nor a pledge, nor a consignment, neither a bill of exchange nor a surety, neither a claim upon a partnership (shirka) nor a joint enterprise (mu‘āmala), (10) nor a loan nor a commenda (qirād), neither a claim for an item of trade nor for merchandise, neither a claim for profit (11) nor for loss, neither for capital nor for profit, nor for any of the other types of (12) its differences of opinion, or of differences in its types or circumstances. Each of us has released (13) the other from the obligatory “oath of partners,” incumbent upon one to the other, in this partnership (shirka), as well as other (partnerships), (14) and from all the claims and demands, and from the rest of the connections and responsibilities for which each (15) of us has (a claim) upon the other, in this partnership (shirka) or in another, from the beginning of time up until now. ENA 2738.35, ll. 7–15

For reasons not explained by prior generations of Geniza scholars, a large percentage of documents from the Geniza concerning themselves with mercantile partnerships are quittance or release documents. The formulaic nature of these documents seems to have persuaded scholars that the effort involved in transcribing and translating them outweighed the potential yield in terms of social and economic data, for release documents are infrequently translated in published collections of Geniza documents.337 Indeed, Goitein himself wrote that even though “one of the most common types of documents is releases . . . [t]hey are more important for legal than for social history, as most of the wording is legal terminology.”338 Yet the very prevalence of release documents demands explanation. Release documents can be likened to divorce decrees, which Goitein finds with surprising frequency in the Geniza.339 This further confirms the parallels established in this chapter between marriage and partnership. In this section of the

131

132

Partnership as Culture

chapter, I explore several components of the publicly executed act of release, the counterpoint to the qinyan. In particular, I focus on the level of detail found in these documents and how this detail accords with Jewish and Islamic legal materials concerning the act of release; and I also examine the social role of the act of release in marking time in relationships—that is, as a milestone rather than a terminus. In some cases, partners not only executed a release document but also took the formal “oath of partners” seen in Jewish law. After exploring release documents, I turn to this oath as it is used in the Geniza documents to highlight further the connections between the Geniza merchants and the sources of Jewish law.

Detail in Release Documents In this subsection, I discuss the sort of detail found in release documents from the Geniza as well in both Jewish and Muslim formularies, revealing clear connections between the Geniza documents, which emerged from the Jewish court, and the details of Jewish law. I also discuss the social and economic function served by the detailed language found in Geniza documents in maintaining merchants’ complex and overlapping networks of commercial cooperation with their fellows. Jewish and Muslim formularies both contain formulae releasing partners from future obligations. Jewish formularies contain formulae for two types of release—general and specific—yet surprisingly even the latter carry little detail concerning the relationship the parties might seek to terminate.340 The texts of both general and specific release formulae contain a brief acknowledgment of the nature of the relationship in question,341 but these formulae have none of the detail concerning the relationship beyond the description of it as “a partnership” or (a debt recorded in) “a document” as well as perhaps the amount of money one party owed the other. This detail may have been omitted for a number of reasons: perhaps settlement was effected separately from the act of release, or perhaps such detail was unnecessary because Jewish law established norms for the final division of partnership assets on which the partners could have relied without

Jewish Law and Jewish Life

specific reference thereto in the release agreement. The Talmud establishes just such norms, which are then taken on by Maimonides;342 if such norms were generally held, there would ordinarily be no need to recapitulate the details of the partnership. Lacking this detail, Jewish formulae for releases seem simply to have ratified partnership distributions, while the actual reckoning of those distributions would have taken place separately from the act of release.343 On the other hand, release documents from the Geniza do reveal the very sort of specific detail absent from the formularies. Just as agency appointment documents (where they were written) contain specific detail as to the claims the agent is entitled to prosecute, release documents may provide such detail in order to identify which of the various simultaneous relationships between the parties was the object of the release.344 Aside from detail concerning the specific partnership at hand, re­leases both in the Geniza and in Jewish formularies often include an inventory (indeed, almost a litany) of specific items or claims clauses from which the partner is to be released. Goitein saw these inventories as formulaic, since they often explain that the releasing party is to be left with “no right, nor any legal claim or demand” and so forth.345 The seemingly repetitive nature of these claims clauses supports Goitein’s reading of them as formulaic.346 Yet the variety of these claims clauses in the Geniza documents suggests that at times they combine the generality of release with the specificity of detail concerning the terminated relationship. For instance, ENA 2738.35 describes a release not only leaving the partners with “neither a claim nor a demand, neither a debt nor a pledge,” which are general terms, but also with “neither a claim upon a partnership (shirka) nor a joint enterprise (mu‘āmala), nor a loan nor a commenda (qirād).” Likewise, ENA NS 1.90 (11*) leaves Nathaniel b. Japheth with “neither a debt [requiring] immediate [payment] nor a debt [to be paid in] installments, nor a debt to be paid at some later date.” Thus, even if a particular release document did not contain specific detail concerning the partnership that was the object of the release, such detail could likely be gleaned from the claims clauses. For example, TS 20.21, a partnership in money changing, grants release from bills of exchange, vouchers, and accounts. Significantly, scribes seem to have been careful in

133

134

Partnership as Culture

choosing the language of release documents: many release documents include either a description of the partnership or an inventory of claims clauses, but few include both. Muslim formularies widely reveal many of the same clauses seen in releases from the Geniza,347 though the ultimate origin of these clauses might have been pre-Islamic formulary traditions rather than the narrative sources of Islamic law.348 Geoffrey Khan even explains that “the Muslim šurūt scholars were dependent on the Jewish legal tradition.” 349 Therefore, it is difficult to know whether Jewish court scribes might have used Jewish formulae as their model, or Islamic formulae that were themselves influenced by those Jewish formulae. Yet Geniza documents do periodically address concerns that surface in Jewish law but not Islamic law: for example, the general precautionary phrase “lā shart” (Arabic, “without condition”) to which Taĥāwī gave “only his begrudging approval” 350 in sale documents is absent from Islamic formulae for general release, but it is found in a number of partnership release documents from the Geniza.351 The shart or limiting condition to which this clause may have referred could have been the “moda‘a” (Hebrew, a declaration annulling future actions before the fact), a concern in Jewish law but not in Islamic law.352 The detail seen in release documents from the Geniza responded to concerns in Jewish law, but it also served an important social and economic function. A close reading of this detail points to the complex personal networks maintained by Jewish merchants, challenging Udovitch’s understanding that these ties were dyadic. Merchants’ use of the legal system likewise challenges Greif’s depiction of the Geniza merchants as entirely sidestepping legal recourse. One function served by the detail found in release documents is that this detail would have served to identify precisely which strand within a particular merchant’s network of interrelationships was coming to a close.353 For instance, ULC Or 1080 J 73 achieves this by duplicating the entire text of the partnership agreement in the text of the release from that partnership.354 Often, this detail enumerates the craft or trade in which the partnership was involved, the amount of commodities or specie invested, and even the planned division of profits and losses between the partners.355 At times, releases even include a statement that the

Jewish Law and Jewish Life

term of the agreement had lapsed.356 Merchants’ networks may have been so complex that they found it necessary to include all this detail, particularly since an individual would not only have had relationships with many other individuals but could even have had a number of distinct cooperative relationships with the very same individual! If a release signified the definitive end of all trading relationships between two individuals, less detail would have been necessary, but the specificity of these documents suggests that releases were instead used to mark the termination of only one element of a complex network of trading relations between two partners. These complex networks found in commerce were maintained in other domains as well, suggesting continuities between commerce and other areas of the lives of the Geniza merchants. Once again, joint ownership of real property provides a fitting parallel. First, like partnership agreements and release documents, the ownership of real property was spelled out in great detail in legal documents. Goitein explains that “when a house was occupied by a number of parties, the actual division of the premises and the conditions entailed by it had to be agreed upon.” 357 Although Goitein points out that “relatives who were on good terms with one another would not make any formal settlements nor reserve for themselves any parts of the common property,” 358 he also makes it clear that such agreements did exist even among family members when these relationships became complex and detailed.359 Formal agreements were written in both commercial arrangements and in housing arrangements to detail the potential alienation of a share from the whole,360 either as a sale of part of a shared house or the distribution of a share of partnership profits at the moment of release. ULC Or 1080 J 290 (15*) demonstrates the con­f usion that could result from not clarifying this detail, as erstwhile partners dispute whether a relationship was a mufāwada, a mu‘āmala, or a qinyan. The parties’ apparent confusion as to whether the object in question was sold to them, entrusted to them,361 or held by them in a partnership demonstrates the complexity of relationships and the role of specifying detail in partnership agreements and releases. Jewish formularies, too, allude to the specific obligations that are terminated.362

135

136

Partnership as Culture

Marital relations (or, more specifically, divorce) can provide another parallel with release documents. Reminiscent of divorce, for which the executing party (to wit, the husband) acts unilaterally by writing a divorce decree, Maimonides lays out a formal procedure involving witness testimony whereby a partner may divide up partnership assets and terminate the partnership without the knowledge and consent of the second partner.363 That this unilateral release may have been the case in commercial partnership as well as in marriage is suggested by two documents that explicitly limit this right: TS 16.21, a partnership agreement, contains a clause penalizing the investor for terminating the partnership early,364 and ENA NS 17.35 (5*) requires partners to gain permission in order to effect a release.365 Divorce and partnership release are further connected in that both require the absence of duress; Jewish formularies are explicit in this. Some release formulae go even farther, actually requiring the consent of all participants in the partnership and not just the absence of duress.366 These formulae for partnership release call to mind divorce, which remains unfinalized until the wife actually accepts her husband’s divorce decree. The public act of release could conceivably have been effected by placing a copy of the release document in the hands of the partners,367 mimicking the wife’s acceptance of the bill of divorce.368 Release documents were often made in duplicate, pointing to the mutuality of release also present in divorce.369 The importance of mutuality (as in divorce) is highlighted by the fact that Jewish law allows a partner to reject the release, to stay his or her fellow’s hand and demand that the contractual term of the partnership be fulfilled.370 The very idea that partnership might have been of long duration and perhaps even contracted for a specific length of time points to a disjunction between Jewish and Islamic law that once again reveals points of continuity between the detail in the Geniza documents and Jewish law. Even though both Jewish law and the Geniza documents contain language at times suggesting that specific partnerships had been contracted for a period of some length,371 Udovitch explains that the Islamic commenda generally did not carry on for a specific and fixed length of time. Instead, Udovitch explains, the commenda was

Jewish Law and Jewish Life

to last only for a single voyage—though a merchant might engage in a host of distinct transactions on that voyage, and the duration of such a voyage might vary. None of the formularies of Taĥāwī, Tūlaytulī, or Nuwayrī contains a clause in corresponding commenda-formulae contracting for a specific period of time;372 Udovitch even suggests that this sort of specification was prohibited by Islamic law.373 In contrast, many investment partnerships seen in the Geniza do allude to a fixed term for the agreement. Furthermore, Islamic law requires that commenda assets be entirely liquidated and accounts be settled at the termination of the relationship,374 though Geniza documents provide ample evidence that this requirement was not always followed.375 Merchants who cooperated with one another on many ­levels—at times contracting partnerships of one sort or another, at times relying on agency commission—might have been content to leave a share of partnership equity with a former partner even after the contractual term had lapsed, in the expectation that the merchants would recommit to one another. Indeed, detail from the Geniza documents suggests that release and termination of relations were not one and the same thing: partners could renew their ties just as soon as they had come to a close. I discuss this phenomenon in the next subsection.

Release and Renewal Any release clause in the formulary literature—Jewish or Islamic— suggests the termination of trading relations, the abandonment of all claims between one partner and his fellow, and a settlement of partnership accounts. Yet the termination implied by release need not be permanent; a release could simply mark the end of an active trading relationship between the partners, with an actual accounting and settling of claims taking place at some other time.376 In this subsection, I explain how release played a key role in providing partners with an opportunity for checking up on each other’s activities, and explain why partnership relations might be renewed at the very moment of release—a phenomenon visible in the Geniza. Islamic legal formulae describe the act of release or quittance using the Arabic root br’, “removal”;377 the same word can be taken to

137

138

Partnership as Culture

mean physical removal,378 strengthening the parallels to be drawn between mercantile partnerships and the shared courtyard. Yet departure need not mean banishment; partners are free to rekindle relations with the same partner after having taken their leave of one another. Indeed, separation is a necessary condition for reentry.379 The Geniza reveals a number of release documents that concurrently renew relations between the partners, suggesting that releases were anything but final.380 Rather, it would seem that the relations of long-term partners were punctuated by periodic releases.381 In such a case, the release would have provided an opportunity for a detailed accounting and for the resolution of any disputes concerning the partnership, but this would not necessitate a final settlement of accounts per se. Regular accounting allowed partners to control their fellows’ exercise of discretion; Bodl Ms Heb b 11.2 (8*) reports that the active partner will perform a regular accounting (“fī kull waqt”—Arabic, “at all times”) to be dispatched to the investor. That partners’ mutual release at the “end” of a partnership provided the primary impetus for a full accounting is made clear in Bodl Ms Heb a 3.8, a partnership in the manufacture of glass, which explains that at the end of the six-month contractual period the partners “will both perform their reckoning.” 382 Rather than a permanent severing of personal or economic ties, and also without any animosity whatsoever between erstwhile partners,383 the act of release would have called partners to account before God and the Jewish court. The Geniza documents suggest that partnerships followed a cycle that was short, though regular renewal meant partnership relations between any pair of individuals would have lasted for a sustained period. Although Moshe Gil explains that “a statement of accounts was provided every two years or more,” 384 it would seem that the short term of partnerships made for a more regular reckoning.385 Indeed, the majority of ordinary partnerships whose initial duration can be found in documents were contracted for one year or less, though ENA NS 21.1 explains that the partners contracted for “many years.” 386 The release and immediate renewal of partnerships is reminiscent of the immediate remarriage of divorced partners to

Jewish Law and Jewish Life

which the Mishna refers in Mishna ‘Eduyot 4:7. On the other hand, such behavior is explicitly forbidden by the Qur’ān.387 If a partnership were to be renewed immediately, it might make little sense to sell off all its assets, particularly if this included illiquid commodities that would be difficult to sell.388 At times, the lack of a transparent market, the difficulty of evaluating market prices of illiquid commodities, and the convenience of simply dividing up stocks of commodities instead of going to the effort of liquidating them in the marketplace seems to have led to the settlement of partnership accounts all or in part with commodities instead of with cash.389 Such divisions led to periodic disputes over the value of the settlement.390 To minimize such disputes in the case of unilateral dissolution, Maimonides demands an appraisal of partnership assets by witnesses, even if the assets are simply two types of coins.391 But where the dissolution takes place with the knowledge of both parties, it seems that the distribution of commodities instead of a cash settlement is permitted and perhaps even envisioned by Maimonides, pursuant to either the distribution of those commodities or, minimally, an appraisal of the value of those commodities.392 Indeed, one partnership agreement, TS 16.168, actually stipulates that both merchandise stocks and shop fixtures would be divided equally between the partners on dissolution of the partnership. The periodic attachment of renewal agreements to release agreements and the aforementioned difficulty of actually settling accounts to which the Geniza documents allude suggests that accounting at release and final settlement may have been two distinct phenomena. Indeed, even a final release might leave one of the partners with a debt balance owed the other, a phenomenon seen in the Geniza.393 Antonin 349 provides an example, pointing to the collection of a residual debt following the dissolution of a partnership. Likewise, another document refers to “a remainder of account,” 394 a standard item that other release documents include in their lists of claims from which the parties explicitly release each other.395 Geonic responsa demand that accounts be settled at release. An anonymous geonic responsum declares that “as long as one partner remains indebted to his fellow,

139

140

Partnership as Culture

the separation is incomplete,”396 and the ninth-century authority Mattathiah Gaon demanded that separation, release, and settlement of all accounts be effected simultaneously.397 However, closer in time and place to the merchants of the Geniza documents, Maimonides considers the possibility of a residual debt following release.398 TS 10 J 4.16 (14a*) reveals partners to have settled their accounts with respect to the principal investment, but to have left the corresponding portion of partnership profits as yet unpaid, suggesting either that the active partner did not have sufficient ready capital with which to settle the partnership accounts or that the investor wished to leave some amount of capital in the control of his partner. In the former case, partners seem to have performed a final accounting and drawn up a repayment plan for the balance.399 Therefore, the absence of a repayment plan suggests that leaving some capital in the hands of one partner or another at the time of release was actually the intention of both parties. There may have been good economic reasons for this: if commodities held by a partnership were illiquid or even untradable,400 partners would be forced to wait until the maturation of a debt agreement or the “customary time” for the sale of the commodities to free up the funds with which to settle their accounts. Rather than delaying dissolution of the partnership, it seems instead that the partners settled the majority of their accounts, ceased trading, and left a single loose end to be tied up at an opportune moment.401 For example, TS NS 320.22 grants a partner two months to settle accounts with his fellow after release has been effected. Release agreements were an essential part of commercial cooperation. Just as the “loggia or belvedere . . . overlooking the inner court,” which was “rarely absent from any detailed description of a house, but not yet found by [Goitein] in any source outside the Geniza documents,”402 provided partners in a courtyard the opportunity to oversee their joint tenancy, commercial partners needed the periodic opportunity of verifying accounts. Indeed, partners are known to complain when they don’t have this opportunity. Bodl Ms Heb 28.1, the power of attorney from Mark Cohen’s “Partnership Gone Bad,” reveals just such a situation. Although Cohen believes that the merchant Judah

Jewish Law and Jewish Life

Ibn Sighmār wanted to “call in his earnings,”403 it seems that Judah’s central concern was instead that he “was in the dark about how much his share of the partnership had earned. He wanted to know.” 404 It is clear from Judah’s letter that his partner sent regular updates as to the partnership transactions, but the latter seems to have provided no specific detail of accounts. Presumably, this detail would have been furnished in court at the moment of release on the partner’s return to Fustāt. If Goitein is correct that “merchants resented giving accounts and viewed requests for them as expressions as mistrust,” 405 then the moment of release would have offered the opportunity for a partner to review his or her fellow’s exercise of discretion without the taint of suspicion. Although Goitein does mention that accounts for specific partnership transactions do appear in Geniza letters,406 accounting for general partnerships in which either or both of the partners had discretion as to the commodities to be traded seems to have taken place primarily at the “final” disposition of partnership assets, which was the primary and perhaps the sole vehicle through which partners could expect reports.407 Indeed, TS 12.464 describes the initiation of a partnership that explicitly relies on the results of a previous reckoning. Releases, executed in public depositions before God in the Jewish court, afforded the opportunity for accounting and for the partners to mark time in their relationship as they embarked on a new partnership. Simultaneous (or, technically, sequential) release and renewal facilitated this cycle. It would seem that the recorded act of release was only one of number of steps involved in the dissolution of a partnership. Although releases attest to the fact that claims have been settled, the actual determination and execution of a settlement did not necessarily accom­plish the act of release and may even have taken place outside the court.408 In the event of a dispute at the moment of reckoning, Maimonides demands that the partners take the “oath of partners,” 409 a vehicle by which one partner attests to having performed an accurate accounting and having handed over everything due his fellow. In the next subsection, I discuss this oath as the second type of deposition “before God.”

141

142

Partnership as Culture

The Oath of Partners The rabbinic oath of partners is an institution whereby even in the absence of a substantiated claim of fraud, a partner must swear to his or her exercise of due care.410 That the writers of Geniza documents considered the rabbinic oath of partners is suggested by the incipit to this section, which records the former partners Abū al-Faraj Yeshu‘a and Abū al-Ridā releasing one another from obligations—including the oath of partners—arising from their partnership relationships. Jewish law understands the oath of partners as accompanying or even preceding release; Mishna Shevu‘ot 7:8 points out that such an oath cannot be imposed after the dissolution of the partnership is complete, and Maimonides rules accordingly.411 Geniza documents also connect the oath to the act of release: ENA 4011.56 records that partners took such an oath and then settled their accounts, and ENA 2738.35 releases the partners from the oath at the time of dissolution. However, the oath is not always juxtaposed with release; as I mentioned in the previous subsection, release and final settlement are sometimes separated, and TS 18 J 1.9 delays the oath until the settlement of the final balance. The reason the oath of partners and release might be juxtaposed is clear: at the moment when accounts are reckoned, the oath ensures that the active partner was not negligent in his management of the partnership assets.412 Thus Geniza documents mention the oath only in connection with partnerships that have lost value, presumably because the partners would not have worried about negligence if the partnership had yielded profits.413 A partner’s right to an oath from his or her fellow, to which one is entitled simply by virtue of the other’s having transacted with his or her assets,414 would have been seen as a powerful tool of moral suasion demanding compliance on the part of an associate who had been out of view of his or her partner. The fear of punishment for taking a false oath was instilled in the community by its foundational sacred texts;415 the geonic practice of placing a sacred object in the hand of the person taking an oath would have heightened this fear.416 Even where merchants could not physically observe one another, the oath lent partnerships a sense of divine oversight emphasizing—and, in the act

Jewish Law and Jewish Life

of public oath taking, dramatizing—the role of God as overseeing the details of commercial cooperation. A rabbinic ethical maxim echoes this sentiment: Mishna Avot 2:14 records, “Know before Whom you toil.” The sense of divine oversight would have infused relationships commercial and otherwise, with the oath being an ever-present enforcement mechanism. Yet, despite the oath’s power—or perhaps because of its power— both the sources of Jewish law and the Geniza documents aim to minimize the use of the oath of partners. Mishneh Torah Sheluĥin ve-Shutafin 9:6 restricts the oath to the discretionary partner. Oaths would have created a sense of danger, as taking a false oath would presumably bring down the wrath of God on the fraudulent party. Geniza documents reveal partners to have released each other from the oath of partners. Although a creditor demands this oath in a case described in ENA 4011.56, the document does not mention whether the oath was ever actually given, and it even explains that each partner “absolved the other of all claims and oaths.” Forgiving the oath at the termination of a partnership would seem to be a gesture whose significance extends beyond the purely legal and alludes to the trust between the partners, demonstrating the partners’ generosity of spirit toward one another. Mindful of the power inherent in relinquishing one’s rights, Talmud Bavli Pesaĥim 113b records that “The Holy One, blessed be He, loves three types [of people]: one who does not get angry, one who does not get intoxicated, and one who does not insist on his or her full rights.” Likewise, TS 13 J 8.23 describes a man’s tense relationship with his wife, to which Goitein points in explaining that “the husband should be a gentleman, should have muruwwa, ‘manliness,’ meaning the character of a man who, because he knows he has power, does not use it against someone weaker.”417 By relinquishing their right to an oath, partners confirm their trust in one another. The oath was an important tool for mutual surveillance, certainly for long-distance trade. Yet merchants cooperating in craft partnerships might have had better opportunities for such surveillance and not have needed to make recourse to the oath. Wishing to minimize the frequency of oath taking, the Geniza reveals partners who worked in close proximity to

143

144

Partnership as Culture

one another forgiving the oath: TS 10 J 9.30 describes a partnership in winemaking in which the partners are to be trusted “as two fitting and proper witnesses”—a phrase Goitein connects to the oath of partners.418 ENA 1822 A.56 contains a similar stipulation. Even though forgiving oaths was a common practice, it was not universal; TS 8 J 32.3 (7*) records partnership transactions and suggests an accounting for partners who did not trust each other “as two proper witnesses.” Islamic law, too, avoids such oaths entirely, except in the case of a dispute: Sarakhsī states that in general “each [partner] is trusted as to partnership holdings in his hand.” 419 In the case of a dispute, though, Sarakhsī,420 Nawawī,421 and Tūlaytulī 422 all use them. Although both Jewish law and the Geniza documents seem to require the distant agent to take the oath denying negligence, Islamic law does not always do so. In fact, Nawawī places the burden of oath on the claimant— in the case of an investment partnership, the investor.423 Thus, even though TS 18 J 1.9 does reveal the Arabic phrase “yamīn al-ashrāk,” it seems to be a calque of the rabbinic “shevu‘at ha-shutafin” rather than an idiom sourced in the fiqh literature, since the burden of the oath is placed on the active partner rather than the investor. When oaths were actually taken, the setting would have been dramatic; and when they were forgiven, the sense of mutual trust infusing the partnership would have been strengthened. Initiation and release rituals for partnerships would have maintained some of the drama as members of the community were made publicly aware of the details of partners’ arrangements, and a sense of divine oversight would have infused relationships where partners were physically distant. The depiction of divine oversight as detailed and specific where mercantile cooperation was concerned contrasts with Udovitch’s understanding of the nature of commercial relationships among the Jewish merchants of medieval Egypt as unstructured and informal. Expectations detailed in partnership agreements would have been supervised by God and verified in the courts upon release. Recording partnerships in documents supported partners’ public accountability that would have been absent in relationships of formal friendship. Yet given the discretion commonly afforded partners in their agreements, this accountability was probably more important

Jewish Law and Jewish Life

for defining social roles and relationships than in demanding specific performance or other legal remedy; as Macneil writes, “Ongoing contractual relations, however—being of broader scope and duration and with greater personal involvement and other complexity-producing factors—necessarily must incorporate principles of flexibility within the relations.” 424 The structures defined in this section—the act of release and the oath of partners—allowed partners periodically to verify accounts and remind one another that although they were free to exercise discretion, they worked under divine oversight even if they found themselves far afield from their fellows. In the next section, I explore in greater detail the role of mutual expectations, trust, and divine oversight in the management of commercial cooperation.

“that he has not laid hands on the other’s property.” A merchant might be concerned about falling prices, yet take comfort in the idea that “God is the one who fixes prices.” 425 Merchants may or may not have used risk management techniques such as portfolio diversification to control this risk: on the one hand, Goitein believed that the Geniza merchants were specialized in their expertise, but on the other, he acknowledged the great diversity of commodities in which they would transact. Yet merchants’ vulnerability to fluctuations in prices would have been small relative to the possibility that their fellows might misappropriate or even pilfer partnership funds. Agents’ and partners’ behavior was essentially unobserved by their principals and fellow partners. Thus no account of mercantile behavior can sidestep some sort of explanation of how merchants dealt with this uncertainty. Udovitch explains that fellows built up trust in one another over time, particularly through the instrument of formal legal partnership. Reliance on this formal instrument gradually became unnecessary and fellows instead turned to one another as “formal friends” and performed mutual favors, perhaps for many years. Greif’s account uses the multilateral punishment mechanism to demonstrate the role of letters in transmitting information and expressing the ­d isapproval of an agent who misbehaved; by acting as a group to

145

146

Partnership as Culture

shun a rogue trader, the coalition of merchants made the cost of defection unbearably high and thereby ensured good-faith behavior even when that behavior was unobserved. In this section, I offer my own account showing trust and legal enforcement to work as complements rather than as polar opposites to oversee and manage unobserved merchants’ behavior.

Trust and Malfeasance in Mercantile Cooperation

‫) אן אביית אלכיס ענדה בעד אן אכתרה קד געלתה פיה פי‬18( ‫) כשני עדים כשרים נאמנים ואבריתה‬19( ‫חאל מביתה ענדה נאמן‬ // . . . ‫ ואשרט‬// . . . ‫מן סאיר אלאימאן ען דלך ואפילו חרם סתם‬ ‫) עליה אנני נאמן פי גמיע אלפאידה כצוץ ואלתזם לי בדלך‬20( ‫) וקוע אלקנין מנה עליה וקד קבלת‬21( ‫חסב מא הו משרוח ענד‬ ‫) פי גמיע‬22( ‫לה עלי נפסי מעכשו הימנותא דשמיא אנני אקצד‬ ‫מא אתקלב פיה מן מאל הדה אלשרכה אלדי לה בידי פעל אלחק‬ ‫) וקול אלצדק ואד אלאמאנה וסלוך‬23( ‫ואלאגדהאד ואלחרץ‬ ‫אלטריקה אלחמידה אלתי תכלצני בין ידי אללה סבחאנה‬ (18) . . . as I deposited the purse with him after I had increased it; I placed it with him, as a long-term deposit, trustworthy (19) as two proper and trustworthy witnesses. I have released him from any oath concerning it, even from ĥerem setam . . . (20) upon it, for I am trustworthy concerning all the profit in particular. He is obligated to me in accordance with what is specified in (21) the details of the qinyan from there, which is ­incumbent upon him. I have taken upon myself effective immediately faith in the Heavens that I intend (22) all that which I have undertaken for the assets of this partnership (shirka) of his which are in my hand, fulfilling the right and the effort and the striving (23) and the “voice of justice.” For the discharge of trust and praiseworthy behavior redeem [one] before God, praised be He. Bodl Ms Heb b 11.2, ll. 18–23 (8*)

Jewish Law and Jewish Life

In his comment on Hosea 2:22, “And I will espouse you with faithfulness; then you shall be devoted to the Lord,” the tenth-century Karaite exegete Japheth b. ‘Alī writes, “‘Faithfulness’ [or: ‘Trust’]426 is one of the commandments set aside unto itself,427 intending thereby the discharge of trust and the employment of trust in sale and purchase and partnership (shirka) and testimony, in rulings and so forth.” 428 It is worth noting that according to contemporary custom many Jews recite this verse daily when donning phylacteries, and the parallels between partnership and marriage are confirmed by Jon Levenson’s reading that in the recitation of this verse and “by putting on tefillin, the Jew becomes engaged to God.” 429 That faithfulness or trust was a cornerstone of partnership relations within the Jewish community of Egypt in the high Middle Ages is immediately evident from even a casual survey of the documents of the period. Indeed, Bodl Ms Heb c 28.1 reveals an individual demanding “fulfillment of trust” 430 from his former partner, which in this case clearly meant a final accounting and remittance of funds that seem to have been long overdue. In contrast, Greif’s work on reputation mechanisms relies on the assumption that “whenever an agent was employed he could act opportunistically—for example, whenever he sold goods he could report a price lower than the one received, and expropriate the difference.” 431 In his view, then, agents would have bled their principals white were it not for the social controls of a coalition mechanism. Certainly, the concern for trust in long-distance trading relationships is clear from the Geniza documents; a number of such agreements in its documentary corpus enjoin the active partner to “ward off treachery and fulfill the trust.”432 On the other hand, the same phrase is present even in partnerships in which the two partners worked side by side,433 suggesting that trust was central to the very idea of partnership in trade, whether partners worked alongside each other or were separated by an ocean. If this trust were indeed at the core of partnership, neither the fear of divine retribution for sin434 nor that of being caught and subsequently ejected from the community of traders would compel partners to hold to social norms so much as a sense of obligation to one’s partner and the correct way to fulfill that obligation.435

147

148

Partnership as Culture

That the same verse from Hosea appears in an eleventh-century Karaite marriage contract from Fustāt,436 and that the Palestinian tradition of marriage contracts itself refers to marriage as “partnership” 437 specifying mutual obligations, suggests trust defined as the fulfillment of detailed obligations to be a cultural trope resonating throughout the culture that produced the Geniza documents. Indeed, describing God as a partner with man and woman in the creation of a child, the Talmud specifies the investment in the partnership from each party and even describes what is to happen at the expiration of that partnership.438 Exegetical sources from the Geniza period continue in this same vein, going so far as to assign numerical shares to the partners.439 Yet this sense of divine oversight extended beyond the purview of the aforementioned oath of partners to include malfeasance and negligence in general. Formularies and documents alike refer to partners placing their trust in Heaven that they will abjure bad faith. Interestingly, these statements appear even in documents that describe partnerships for which the partners are to work in close proximity to one another. Although it would be impossible for either Jewish law or the legal agreements in the Geniza’s corpus to spell out every detail of expected behavior, it seems that partners had a mutual understanding of what constituted malfeasance, subject to periodic infringement. In a letter discussed by Goitein, a writer reproaches his partner with the statement, “Your actions are not those of a merchant.” 440 That the writer’s ire has been aroused is clear; this statement is enlightening as to the expectations of partners because it is exactly the sort that occurs “when teammates can no longer countenance each other’s inept performance . . . one effect of the quarrel is to provide the audience with a backstage view.” 441 In this case, the partner’s malfeasance is clear: the writer explains that the former was negligent by sending merchandise with an unsuitable agent. Goitein explains that “complaints about unethical behavior of businessmen are surprisingly rare”;442 this may well be because the activity of one’s partner, however close at hand, can be very difficult to second-guess.443 In such an environment, “guaranteeing the fulfillment of trust” 444 is critical.

Jewish Law and Jewish Life

The judicious exercise of discretion confirmed trust in one’s partner, and allowing one’s partner to exercise discretion would have had the economically beneficial effect of allowing a distant partner to take advantage of trading opportunities surfacing in the moment. Investors would turn to the image of divine supervision to describe the anxiety attendant to the trust they placed in their distant fellows, and formal agreements were drawn up to eliminate any confusion as to the division of profits and losses from the exercise of an active partner’s discretion. Such partners stood as guarantors of their own discretionary actions, taking partial responsibility for trading losses. The gravity of this discretion is even suggested by Jewish legal sources addressing possible conflicts of interest between an active partner serving many investors and the individual investors themselves. The unobserved exercise of discretion was controlled through economic and religious structures alike, as oaths accompanied the execution of release documents in the Jewish court at the key milestones of partners’ long-term associations. Although long-distance trading partnerships, as well as investment partnerships in general, do not offer the same opportunities for mutual surveillance afforded partnerships centered on a single factory or store, the same phrases seen in the ordinary partnership documents freeing the partners from the oath of partners and alluding to mutual trust in the reporting of partnership profits nonetheless appear in investment partnerships.445 As with ordinary partnerships, some investment partnerships contain florid phrases that the active partner would “work and strive” 446 and even employ the investor’s funds “as though I were working with my own assets”;447 this language is echoed in the formulae of Shetarot of Hai and ‘Ittur.448 As I mentioned in the previous subsection, Geniza documents that contain admonitions to trustworthy behavior consistently include a provision freeing the active partner from any oath, perhaps an expansion of the muruwwa which I also mentioned above. However, the florid phrases in the formularies are not intended to free the active partner from authenticating his reporting of partnership profits by taking an oath before witnesses. Rather, they must be understood for their role in

149

150

Partnership as Culture

producing moral suasion, impressing on the active partner the expectations of judicious exercise of discretion. Indeed, the discussion of trust actually extends beyond freeing partners from oaths; agreements in the Geniza use phrases such as “the voice of justice,”449 “avoiding betrayal,”450 and “faith in the heavens”451 to encourage partners’ behavior to meet mutual expectations. Barzillai and ‘Ittur include in their formularies a more general statement of trust as the partners attest that they have “taken on faith of the Heavens” neither to abuse partnership assets nor to withhold profits from each other.452 These phrases describe an atmosphere of mutual trust. This mutual trust is moderated by legal controls. Maimonides circumscribes the active partner’s latitude in trading, pointing out that one who has been retained to transact in foodstuffs should not transact in clothing or the like.453 Although ENA 2727.23a Recto and TS NS J 6454 both limit the active partner’s destinations in longdistance trade, Geniza documents generally do not specify restrictions on the active partner’s trading portfolio in the manner described by Maimonides; indeed, TS 10 J 4.16 (14a*) alludes to decidedly nonspecific “merchandise we chance upon.” In this vein, Shetarot of Barzillai mentions that the active partner will take advantage of whatever opportunities present themselves.455 Yet where executed court documents do limit merchants’ discretionary powers, these documents are subsequently used as a check on the exercise of that discretion. The Geniza reveals partnership agreements to have been brought into the public forum supporting one partner’s claim against his fellow.456 Letters contained transaction-specific and time-sensitive detail, yet the difficulty of second-guessing one’s partner would have limited their utility in enforcing one’s claim that a partner failed to execute an act of formal friendship properly.457 In contrast, wildly opportunistic behavior that violated the discretion ordinarily afforded partners and generally defined in partnership agreements could subsequently be adjudicated and the agreement itself brought as supporting documentation.458 ENA NS 21.1, apparently a draft agreement, attests to the fact that such agreements were not always ratified by witnesses, reading, “If So-and-So requests [this] of us, we will affix our signature.”

Jewish Law and Jewish Life

Yet a partner could also act within the bounds of his or her agreement, meet the norms of Jewish law, and still engage in behavior detrimental to his or her partner, whether this meant investing in a suboptimally risky asset or sending a shipment with an agent whom his partner later determined to be unsuitable. In such a case, one would have no recourse to an earthly court.459 The Geniza documents reveal an awareness of this problem: TS 20.21, a document of release from an ordinary partnership, explicitly grants release from the claim of tar‘omet (Hebrew, “complaining”), despite the fact that such a claim has no standing in the earthly court. Attestations to the “voice of justice,” “avoiding betrayal” and the like seen in Geniza documents extend beyond legal norms and go toward defining the generally unspoken behavioral norms of the community of partners in which each individual operates in “dramaturgical co-operation.” 460 The sense of divine supervision would have helped implement those norms, leading active partners to control the impulse to act in their own interest to the exclusion of their fellows’ interest,461 even when doing so would have been permissible under the confines of Jewish law. As I have mentioned, recourse to the oath of partners would be ineffective. Trust was viewed expansively, covering behavior that would fall outside the purview of the human court. To make the most of both trust and the legal system, Geniza merchants outlined their mutual expectations in detail and managed the progress of their relationships through the court system. The representation of commercial life I have presented here differs from that described by Udovitch and Greif. Whereas the aforementioned Geniza documents suggest at least a modicum of formality, structure, and detail, Udovitch suggests instead the prominence of “informal institutions [which] do not possess the properties just mentioned. They are unstructured, seemingly formless, very flexible, and above all very personal in nature.”462 Udovitch points to a process of learning and vetting by which nontransitive personal relationships are developed over time. He suggests that “once mutual trust and guarantee were established, the informal business cooperation that ensued constituted an open-ended relationship,” 463 and there would

151

152

Partnership as Culture

have been no further need for partners to rely on “structured” agreements or partnership mechanisms. Yet the Geniza documents reveal the persistence of formal mechanisms years into merchants’ cooperation with one another. In his article “A Partnership Gone Bad,” Cohen sees “long years of informal business” between the dramatis personae Judah Ibn Sighmār and Abraham al-Raĥbī, leading one to wonder why the two chose “a partnership, not a ‘friendship’ arrangement” in structuring the relationship that eventually led to their dispute.464 In fact, it would seem that these merchants, like their fellows, used both formal and informal cooperative mechanisms throughout their years together. Periodic reliance on formal contracts over the course of a longterm relationship also challenges Greif’s model of coalition-based cooperation in the absence of an effective legal enforcement mechanism.465 Although the modifications to Greif’s model proposed by Ethan Bueno de Mesquita and Matthew Stephenson allow formal contracts to sit in parallel with coalition-based relationships, their model assumes potential partners to be either inside a coalition (in which case the partners need not rely on a formal contract) or outside (in which case a formal contract is employed).466 Yet, for the case discussed by Cohen in “A Partnership Gone Bad,” Judah Ibn Sighmār’s letter provides no evidence that Abraham al-Raĥbī had defected prior to the start of the formal agreement concerning the piece of ambergris, a datum Judah’s agent ‘Alī b. Yaĥyā would have undoubtedly found important. The periodic choice of a “partnership” agreement in the midst of a longstanding “friendship” relationship, which emerges from the Geniza documents described by Cohen, seems to fit neither Greif’s nor Udovitch’s model of commercial cooperation. The reason none of these models can explain the coexistence of what the jurisprudential scholar Ian Macneil calls “promissory and nonpromissory exchangeprojectors” is that such models do not fully describe the role of promissory partnership in the Geniza culture. However, seeing partnership as a cultural trope that infuses relationships throughout their life cycle places the “two deep ocean currents, the promissory and the

Jewish Law and Jewish Life

nonpromissory,” 467 in tension with each other, neither simply a ripple upon the great sea of the other. It is clear that partners’ mutual expectations were highly detailed. The legal documents reveal that these expectations often shadowed the structures of Jewish law, and that those structures shared features with other aspects of Jewish culture. Trust infused all sorts of human interrelationships, and the recurrence of the image of mutual trust would have been a powerful incitement to partners not to shirk from their mutual obligations. Partners’ mutual trust worked in concert with their mutual liability to rein in the free exercise of discretion. This ensured that distant partners could take advantage of economic opportunities, even while it inspired them to avoid malfeasance. Where trust broke down and malfeasance was clear, the legal system may have been able to provide recourse. But when that trust was maintained, merchants’ ties could deepen and their relationship could flourish.

Conclusion In the previous chapter, I examined the lens through which scholars of the Princeton School of Geniza studies described the economic life of the Jewish community in the medieval Islamic world. The humanistic approach of these scholars has seen Jews as “embedded” in the medieval Islamic world and therefore assumed that Jews and Muslims employed similar commercial practices. In this chapter, I have shown that in a number of important areas concerning commercial cooperation, the legal documents of the Geniza actually reflect the models of commercial cooperation outlined in the Talmud and subsequent Jewish legal materials, notably Maimonides’ Mishneh Torah; and also that these details often diverge from corresponding models seen in Islamic legal materials—particularly the very Ĥanaf ī sources Udovitch described as a “medieval Islamic Law Merchant.” I have also shown that many of the aspects of commercial cooperation that underpin the mind-set of Jewish merchants as reflected in the Geniza documents also animate other aspects of daily life. Thus, for instance, when Jewish merchants initiate their mercantile relationships with a public

153

154

Partnership as Culture

ritual or when they organize those relationships around varying levels of discretion, the merchants can be seen revealing in their economic life the same preference for acts of initiation or the same attitude toward discretion that they reveal in initiating a marriage or effecting a divorce. In light of this, decisions by Jewish merchants about their economic life can and should be seen as driven by a desire to manifest a set of distinctively “Jewish” cultural preferences in the medieval Islamic orbit. I have also provided in this chapter a novel account of mercantile cooperation as reflected in the Geniza documents. Goitein and Udovitch are certainly correct in ascribing a central role to agency relations, as is Greif when he points to the role played by reputation in choosing one’s associates. Yet the legal documents from the Geniza also suggest a persistent role for “formal” cooperation disregarded by Udovitch and Greif alike. Udovitch did see formal cooperation as important in the early, formative stages of a relationship between merchants, but detail from the documents reveals how the structured and unstructured, the formal and informal, coexist and indeed nurture one another. The opportunistic nature of long-distance trade seems to have encouraged if not demanded that merchants rely on discretionary partnerships rather than nondiscretionary agency for as long as they cooperated. Yet performing favors for a formal friend was no less important as it engendered an unwritten debt to be repaid in the future. The possibility that Jews did have a set of economic practices reflecting the norms described in the classical sources of Jewish law raises some challenging questions. Were the practices of the Jewish community indeed distinct from those of their fellow merchants who happened to be Muslims? Was there an actual relationship between the sources of Jewish law and the mercantile practice of Jews, or are the findings discussed in this chapter simply a happy coincidence? If Jewish merchants did maintain distinctive practices, how can the Geniza documents be used to shed light on the social and economic history of the Islamic world as a whole? The remaining chapters attempt to address these questions in order to comprehend more fully

Jewish Law and Jewish Life

the connections between Jewish law and quotidian life, to defend the primacy of the Geniza documents as a source for the study of Islamic history, and to vindicate religious and cultural identity as an important component of economic decision making by an “embedded” subculture.

155

Three 

156

 ommercial Forms and Legal Norms C in the Jewish Community of Medieval Egypt

Scholars agree that medieval Jewish legal writers responded to “the needs of the times” in making their legal rulings, carefully choosing the legal sources and precedents on which they relied, rereading or even rejecting those sources in light of their quotidian reality.1 Particularly in the geonic period, as talmudic norms encountered a geographically expansive community experiencing radical social transformations in the engagement with Islam, as well as a rapid economic development concomitant with the rise of the ‘Abbāsids that urbanized and transformed the economic life of the Jewish community, 2 classical sources of Jewish law faced new pressures.3 Geonic leaders responded to these pressures by making recourse to the traditional institutions of taqqana (Hebrew, “legislative enactment”)4 and minhag (Hebrew, “custom”).5 Thus, it is widely accepted that the vicissitudes of daily life influenced both the responsa of the geonim6 and their contributions to the expanding codificatory literature.7 However, the potential influence of Jewish legal norms on daily life remains an unsettled area in the study of the history of the premodern Jewish community. A paucity of documentary and archaeological evidence complicates this problem, and edited literary texts of various genres remain themselves among the most important witnesses to Jewish life in the period. In the present chapter, I seek to transcend earlier studies showing the mutability of law in light of daily life, adding to the discussion by revealing that Jewish legal norms also bore an influential role in determining quotidian practice. I focus on rabbinic legal materials from late antiquity and their reception through the geonic community

Commercial Forms and Legal Norms

and its Rabbanite constituents in medieval Egypt, and in it I turn to the historical witnesses of the Rabbanite community emerging as further documentary evidence has come to light. Geniza documents provide the historical evidence for the relations between norms and practice within the Rabbanite Jewish community of medieval Egypt, a legally pluralistic environment in which litigants had access to both Jewish and Islamic courts.8 Therefore, the choice of members of this community to bring their proceedings to Jewish courts will be seen as deliberate. Through a close reading of court practice as described in the Geniza documents, I accentuate the previous chapter’s conclusion that the decision of Jewish economic actors to structure their relationships according to Jewish legal norms was no less deliberate. In an environment of competing canonical legal norms, which included several gradations among the various orthodox schools of Islamic law as well as those of Jewish law, the survival of a significant corpus of legal agreements in the Geniza reflecting the typology of economic partnership models seen in Jewish law that deviate from corresponding models seen in Islamic law can even be seen as a vehicle for expressing Jewish communal self-consciousness in the economic domain. I begin this chapter by briefly recapitulating Udovitch and Greif’s approaches to the economic relations of Jewish merchants in the medieval Islamic Mediterranean, both of whom hold that classical Jewish legal codes were not in fact determinative of commercial practice in the environment that produced the Cairo Geniza documents. I sketch out the complex dialogue between canonized legal norms and commercial practice. I point out that the centerpiece of this dialogue was a legal system relying heavily on a process of mediation educating Jewish economic actors as to the norms of Jewish law and encouraging them to align their commercial practice with those norms. I then turn to a summary of contemporary mediation theory in order to reveal a number of models for the relationship between canon­ ical legal norms and actual mediated agreements; and I measure the procedural details of court practice in Jewish medieval Egypt against these models. I reveal court practice to follow a “norm-­educating” model, and show the documentary output of the Jewish court to have been in dialogue with canonical Jewish legal norms. Much ink

157

158

Commercial Forms and Legal Norms

has been shed by other scholars revealing how the Mishneh Torah and other classical Jewish legal works were influenced by forces emerging from their quotidian environment, causing their writers to incline toward one or another talmudic ruling or even to do violence to the talmudic text itself in order to accommodate quotidian practice. However, I demonstrate positive law to have had a corresponding determinative influence on that environment, affecting the choices of Jewish economic actors as they opted to structure their relationships according to Jewish norms, which themselves emerged from the classical compendia of Jewish law. The advantage of norm-educating models of mediation is that the legal agreements they produce do not necessarily accord with all the codified norms of the system that produced those agreements. The details of codified Jewish law influenced commercial practice without completely determining or defining it. Since law was not determinative of practice through some sort of enforcement mechanism on the part of the Rabbanite authorities, the choice of Jewish economic actors to structure their relationships generally according to those norms should be seen as a conscious decision. The key role of the courts as well as the influential role of classical Jewish legal norms in shaping and implementing agreements should also suggest the importance of the Gesellschaft as opposed to the Gemeinschaft (to use the language of Ferdinand Tönnies), challenging the application of “lawlessness and economics” literature to the Jewish merchants of the eleventhcentury Mediterranean.9 Scholars of this literature have argued that coalitions of merchants turned to local subgroup norms to define their own behavior, which was then monitored outside the formal legal system.10 Instead, I show that classical Jewish law as compiled in the Mishneh Torah 11 helped shape Jewish economic relationships and Jewish identity.

Commercial Forms and Legal Norms

Udovitch and Greif: Islamic Norms or the Gemeinschaft? Any analysis of partnership relations in the medieval Islamic Mediter­ ranean and the connection between commercial law and practice must take as its starting point Abraham Udovitch’s seminal 1970 work Partnership and Profit in Medieval Islam. Turning to business letters from the Cairo Geniza concerning mercantile partnerships, Udovitch concludes that “when compared, a remarkable symmetry becomes evident between the legal formulations of the late eighth century on the one hand, and the documented commercial practice of the eleventh and twelfth century Geniza merchants on the other.” 12 As mentioned in the first chapter, Udovitch’s analysis of the parallels between commercial letters and Islamic commercial codes vindicated his predecessor Joseph Schacht’s reading of Islamic law as both reflecting and accommodating commercial practice.13 Udovitch even described Ĥanaf ī law as a “medieval Islamic Law Merchant.” This term is clearly apposite given that Ĥanaf ī law is the most developed and flexible of the four major Sunnī schools, and therefore most broadly capable of vindicating custom (Arabic, “‘urf  ”) in order to establish positive law. In the absence of any “religious or moral principle” 14 governing commercial practice, the Ĥanaf ī lawyers were free to develop legal devices that accommodated—indeed, canonized—a local practice encountered by Islamic conquest over the course of the seventh century, despite the fact that this local practice may have diverged from behavioral norms envisioned by the early Islamic conquerors themselves.15 Although he lacked commercial documents from medieval Islamic merchants, Udovitch did turn to one corpus of documents in order to bolster his claims concerning commercial practice: the Cairo Geniza. The so-called documentary Geniza, containing documents from all walks of life, represents one-tenth of the Geniza trove as a whole or perhaps even less, which is overwhelmed by fragments of classical rabbinic sources, but this amounts to a corpus of more than fifteen thousand fragments of paper.16 Yet, despite Goitein’s attestation that “the largest and most valuable group of Geniza documents is

159

160

Commercial Forms and Legal Norms

made up of court depositions,” 17 Goitein’s own attention, as well as that of Udovitch, was focused overwhelmingly on letters. Although the first volume of A Mediterranean Society did discuss a number of legal agreements concerning commercial cooperation, 18 Goitein and Udovitch both turned primarily to letters for their depictions of economic life. Unfortunately, however, much of the specific detail concerning commercial cooperation, such as the planned allocation of profit and loss between partners, is entirely absent from commercial letters, which typically include such vague phrases as “for our joint business, too, make an effort and buy whatever you see fit of flax and spices.”19 Indeed, it is only where Udovitch turns to Goitein’s analysis of the small collection of legal documents related to partnerships that the latter did examine20 that he can conclude that “most arrangements . . . involved complex patterns of distribution of investments, work, risks, and profits among the parties to a partnership or commenda.”21 Amid a Judeo-Arabic corpus that alludes to partnerships, agency agreements, brokerage, and commenda often using terms recognizable from Arabic fiqh compendia, Udovitch claimed that “those aspects of commerce which loomed large for the Geniza merchants are exactly those to which the legal texts devote lengthy and detailed discussions,” 22 leading to his conclusion that Islamic law—and not Jewish law—represented nothing more (and nothing less) than a record of commercial practice. The detail Udovitch gathered from this “record of commercial practice” led him to conclude that most commercial cooperation was conducted on the basis of ties that “had no specific shape or content” 23 but instead relied on quid pro quo transactions fulfilled by associates relying on mutual trust built over the course of longstanding relationships. These relationships were also bilateral and dyadic, through which each individual could be seen as the focal point from which many dyadic ties extended outward.24 Importantly, the expectations of these relationships were not necessarily articulated explicitly, and relationships were managed through the instruments of personal guarantee and trust. Udovitch’s work on the nature of commercial cooperation and the role of traders’ behavioral expectations in defining that cooperation

Commercial Forms and Legal Norms

was developed more fully by the economist Avner Greif.25 Unlike Udovitch, who saw relationships as negotiated through personal guarantee and trust, Greif saw these relationships—or at least, the punishment mechanism that governed these relationships—to be multilateral and defined by a specific community of traders. That is, although a principal-agent relationship was maintained at the level of the node, between two individuals, a principal would express his dissatisfaction with any particular agent in his letters to his other associates, and this dissatisfaction would thereby be communicated to the group as a whole. According to Greif, members of the entire group would show common cause with their fellow by shunning the former agent, agreeing never to employ an agent who cheated while operating for any coalition member.26 In an environment in which the legal system was expensive, slow, or generally inaccessible, this multilateral punishment structure could provide a framework that made for an efficient wage and gave the agent a disincentive to cheat.27 Greif saw a somewhat tight-knit group of eleventh-century traders, whom (following Goitein) he calls the Maghribis, placing the center of their network in the Maghreb (that is, central North Africa), though he seems unwilling to describe this as a subculture per se and he rejects Werner Sombart’s reliance on relationships within “natural groups.” However, Greif does argue that there was a sense of connection and esprit de corps among these traders, a sense prefigured by Udovitch’s allusion to the self-description of these traders as “asĥābunā, our colleagues.”28 Supporting Greif’s understanding that the Maghribis established a distinct group in the eleventh-century Mediterranean trade is his claim that evidence of cooperation with non-Maghribi traders by members of this group is rare, and that connections within the group were often sustained for multiple generations.29 Whereas Udovitch described these connections as intensely personal and not inheritable,30 Greif describes relations as extending to the group as a whole, which established and maintained its own behavioral norms. Greif’s research was an important contribution to the lawlessness and economics literature, which seeks to adduce alternative methods for the enforcement of property rights and the management of contracts in light of the ineffectiveness or absence of a structured

161

162

Commercial Forms and Legal Norms

legal enforcement mechanism. Greif suggests that this subgroup maintained distinctive ex ante behavioral norms (defining, for instance, what exactly “cheating” is) that did not extend beyond the specific group. Thus, Greif writes: “By discouraging intercoalition agency relations, these factors make the expectations on which the coalition rests self-enforcing. Hence, once a coalition is formed through some historical process, agency relations will be established only among the traders for whom expectations were initially crystallized.” 31 One consequence of this, according to Greif, is that the expectations of the coalition were transmitted intergenerationally, ensuring that the coalition consisted only of Maghribis and their descendants. Presumably, one could become acculturated to the norms of the group only by growing up in that group. Thus the source of those norms was the group itself, the small-scale Gemeinschaft, as opposed to the behavioral norms described by the classical legal literature of the (Rabbanite) Jewish community as a whole, representing the broader Gesellschaft. With this in mind, neither Udovitch nor Greif would have understood Jewish legal norms per se to have played a role in the practice of the community of Jewish economic actors in the medieval Islamic Mediterranean. Examining the epistolary corpus of the Geniza, both scholars turn to the dominance of custom in determining practice: in Udovitch’s case it is the custom of the broader (that is, the “Islamic”) marketplace, and in Greif’s it is the custom of the coalition itself. Thus Greif writes that “the Maghribi’s code of conduct was a social norm, a rule that is neither promulgated by an official source, such as a court or legislator, nor enforced by the threat of legal sanctions but is nevertheless regularly complied with.” 32 Coming from the domain of institutional economics, Ethan Bueno de Mesquita and Matthew Stephenson have challenged Greif’s conclusions by considering the possibility that the coalition and the legal system operated as parallel enforcement mechanisms, but their study turns to Greif’s analytical model rather than the Geniza documents underpinning his conclusions in order to challenge him.33 By contrast, Jeremy Edwards and Sheilagh Ogilvie have rejected Greif’s reliance on the multilateral punishment mechanism entirely, examining detail

Commercial Forms and Legal Norms

from Geniza documents to argue out that Jewish merchants turned both to Jewish and Muslim courts for conflict resolution.34 Arguing along with these scholars that the legal mechanism did indeed play an important role in the management of mercantile relationships, I add to their challenges by drawing connections between the conduct of the merchants and the very same “official sources” Greif says did not play a role in influencing behavior, by exploring the legal process through which conflicts were resolved, and by bringing to light the norms that were implemented through this process.

Detail from Legal Documents in Light of Jewish and Islamic Law One problem with the analyses of Udovitch and Greif is that their studies of Geniza documents rely almost exclusively on epistolary material. Mercantile letters in the Geniza are certainly rich in detail concerning what Goitein would call “the subjective aspect of trade, trade as seen by the people who were engaged in it,” 35 often providing exactly the sort of detailed information sought by Greif concerning merchants’ satisfaction with their partners and agents. Letters often also list commodities in which merchants transacted. However, as mentioned, merchants’ letters are particularly spare in just the sort of detail that would allow the researcher to determine the precise nature of the cooperative enterprise imagined by the counterparties. For instance, exactly what sort of relationship was the “joint business” in a typical Geniza letter I have already mentioned?36 In this section of the chapter, I further challenge Udovitch’s understanding that Ĥanaf ī law was indeed descriptive of the practice of the Geniza merchants. Recapitulating some of my challenges in Chapter 2 as well as introducing other challenges, I turn to the legal documents of the Geniza to demonstrate a general (if incomplete) correspondence between the detail found in the documents and in the forms of economic cooperation seen in classical (talmudic and geonic) sources of Jewish law, and a corresponding disjunction with the classical sources of Islamic law.

163

164

Commercial Forms and Legal Norms

Subsequent sections challenge Greif’s claim that the source of norms was the Gemeinschaft, demonstrating that merchants were educated as to the norms of the Gesellschaft through the court system. The silence of the Geniza corpus in certain genres is telling. For instance, if we survey legal documents concerning commercial life, it is perhaps unsurprising to find that very few such documents are concerned with agency relations. Whereas commercial letters often ask distant agents to buy or sell specific items as a wikāla (Arabic, “agency appointment”), Jewish law requires the writing of an agency appointment37 in only one case: when the agent is retained to collect on a deposit or a debt recorded in a document.38 Likewise, narrative works of Islamic law do not mention the writing of agency documents—though Islamic formularies do contain formulae for agency appointment.39 Since Jewish law would have required the act of qinyan (Hebrew, “act effecting acquisition”) only in the case of debt collection, the court would not have been the usual or primary locus of agency appointment—except in this specific case. On the other hand, the Geniza does reveal a substantial number of legal documents concerning commercial partnerships, at least many more than suggested by Goitein’s list of twenty-seven40 “industrial partnerships.” 41 Indeed, a cursory survey of the unpublished documents from the Geniza corpus reveals at least that number of heretofore unpublished partnership agreements, as well as fully twice that number of legal documents dissolving partnerships or indemnifying former partners from any future obligations relating to their partnership.42 The fact that legal documents were written concerning partnership says nothing about the norms they embody; nor does it say anything about the relationship of classical Jewish or Islamic legal codes to the partnerships described by those documents. In fact, if the legal documents reflected partnership models seen in Islamic law, this analysis would simply bolster and even extend Udovitch’s claim that Ĥanaf ī law was a “medieval Islamic Law Merchant” to include Jewish economic actors—an extension Udovitch himself might even have been willing to accept.43 However, if the partnership models described by the legal documents were entirely eclectic, bearing no relationship to

Commercial Forms and Legal Norms

either Jewish or Islamic law, one could perhaps claim that the norms they reflected had actually emerged from the local norms of the guildlike coalition of merchants envisioned by Greif. However, as I have shown elsewhere,44 and I will discuss in brief shortly, the partnership structures described by the legal documents actually echo the models described by Maimonides in his Laws of Agency and Partnership, even where those models differ from Ĥanaf ī law. Much of the data that can be gleaned from the legal documents of the Geniza suggests that the models of commercial cooperation used by Jewish merchants were those seen in classical Jewish codes and formularies. As mentioned in the previous chapter, the basic categories of agency (Hebrew, “sheliĥut”), ordinary partnership (Hebrew, “shutafut”), and investment partnership45 (Hebrew, “‘eseq”; Aramaic, “‘isqa”) that are clearly laid out in Maimonides’ Hilkhot Sheluĥin ve-Shutafin (Laws of Agency and Partnership) closely follow talmudic models that are maintained with little variance in the geonic codes and monographs composed and disseminated in the intervening centuries.46 These categories are reflected in the Geniza documents as well:47 as mentioned, few fragments of general agency survive, perhaps because ordinary agency appointment was effected orally rather than in writing.48 But the Geniza does reveal legal documents related to ordinary partnership and investment partnership. Although Goitein wrote that “the Jewish ‘isqa was less common in the Geniza period than the Muslim commenda, as witness the extant contracts,” 49 a survey of the legal documents demonstrates that ‘isqa was not at all uncommon.50 Indeed, a search of more than four thousand documents in the Princeton Geniza Project electronic text database51 reveals no documents actually bearing the specific phrase “qirād al-goyim” (“an ‘Islamic’ commenda”) mentioned by Goitein, suggesting that his conclusion relied on the testimony of Maimonides’ responsa rather than on that of actual legal agreements.52 A search of the same database reveals a document described as “qirād be-torat ‘isqa” (“a commenda according to the laws of the ‘isqa”).53 Investment partnerships do not always use one or the other of these phrases, but the absence of the former from among a significant swath of the documentary Geniza should be noted.

165

166

Commercial Forms and Legal Norms

The most significant difference between the Islamic commenda and the Jewish ‘isqa lies in how these structures distribute losses experienced in the ordinary course of business: although the Islamic commenda indemnifies the agent in an investment partnership from such losses, the ‘isqa reckons half of the investor’s capital to be a loan to the agent, which therefore must be repaid in the case of loss.54 That is, the commenda frees agents from liability for losses, while the ‘isqa does not. Yet out of some fourteen Geniza documents I have found describing investment partnerships that contain sufficient detail to discern the distribution of partnership losses,55 only one indemnifies the agent;56 the other thirteen all explicitly assign the agent a share of those losses. Although Goitein argues that “actual contracts according to Jewish law, which give the manager two-thirds of the profit but make him responsible for losses . . . are rare,” 57 it would seem that their presence is actually more prominent than understood by Goitein.58 Nonetheless, the existence of investment partnership agreements executed in Jewish courts that reflect Jewish legal norms concerning the division of profits and, particularly, losses does not suggest that the Islamic commenda did not occupy a prominent or perhaps even dominant place in the economic life of Jewish merchants in medieval Egypt. Indeed, the Geniza reveals several documents pointing to the termination of a partnership that seems to have been formed according to the model of the commenda,59 as well as “Arabic documents” 60 describing commercial relations formed, or in some cases even adjudicated, in Islamic courts and subsequently brought to Jewish courts. Well aware of this, Goitein concluded that settlements were often made before Muslim notaries;61 and that “since the most common form of legally valid business cooperation was the Muslim commenda, it is only natural that such contracts should be made before a Muslim notary.”62 However, as will be shown, the range of outcomes the Jewish courts were willing to authorize or even endorse included those falling beyond the range of Jewish legal norms as they are described in talmudic literature, geonic codes, and Maimonides’ Mishneh Torah.63 Thus, litigants’ choice of venue cannot necessarily be seen as emerging from the details of the partnership structure they chose to employ, as Goitein suggests. The evidence suggests that many Jewish merchants

Commercial Forms and Legal Norms

chose the Jewish courts as the venue for the establishment and maintenance of their partnership agreements, and that at least a significant proportion of those merchants who contracted investment partnerships did indeed rely on the talmudic ‘isqa rather than the Islamic commenda (that is, the qirād or the mudāraba). As it has for “investment partnerships,” documentary evidence from “ordinary partnerships” also reveals some important affinities with the distinctive structures of Jewish law. Those affinities are both formal and substantive. To begin with the formal, in the case of ordinary partnership agreements Maimonides requires that the partners initiate their relationship by placing their joint capital in a common purse;64 only one school of Islamic law requires this.65 In contrast, neither Jewish nor Islamic law requires the common purse to initiate an investment partnership. In line with the Jewish legal requirement of a common purse for the ordinary partnership, the Judeo-Arabic word “wasat” (“middle”), indicating the common purse, appears in some eleven Geniza documents describing ordinary partnerships,66 but only one describing an investment partnership.67 As pointed out by Jessica Goldberg, Geniza letters usually refer to the ordinary partnership (in her words, “an investment-shares venture partnership”) as a khulta (“mixture”), “referring to the mixing of monies in a single purse.”68 Indeed, it would seem that Jewish merchants even had a distinct word for ordinary partnerships having been formed without the formal requirement of raising up the common purse,69 suggesting the transformative role of that act in the life of the partners’ relationship. In addition to the formal requirement of raising up the common purse, there may also have been substantive matters for which Jewish commercial practice of ordinary partnership reflected a preference for Jewish legal norms rather than Islamic norms. However, the models ­ sharikat of day-to-day management of ordinary partnership (Arabic, “ al-‘inān”) prescribed by Islamic law vary between the Mālikī, Shāfi‘ī, and Ĥanaf ī schools,70 and so the model of ordinary partnership de­scribed by each Islamic legal school should be considered separately vis-à-vis the Geniza documents. First, in assessing the Mālikī school, Udovitch writes that ‘inān partnership “appears to have been conceived as pertaining either to a

167

168

Commercial Forms and Legal Norms

single commodity or to a single transaction.” 71 This model is a clear departure from Goitein’s description of traders who often “had one article as their main business” yet nonetheless actively traded in a very broad range of commodities. Partnership agreements from the Geniza support Goitein’s understanding and also suggest that commercial relationships typically extended beyond single transactions.72 The Shāfi‘ī model for ‘inān partnership demands that profitand-loss sharing follow investors’ shares in the partnership capital, although Geniza merchants often preferred an equal (or evenly proportioned) division of profits and losses even when partners’ investments varied wildly.73 The inflexibility of the Mālikī and Shāfi‘ī models and their general incompatibility with a developed system of trade and commerce has already been noted by Udovitch.74 By contrast, Ĥanaf ī law shares much with Jewish law in terms of its general framework for ordinary partnership, as well as in its flexibility toward profit-and-loss-sharing arrangements; given its general flexibility, it is unsurprising that Udovitch latched on to Ĥanaf ī law as a medieval Islamic “Law Merchant.” Geniza documents reflect the flexibility given to partners imagined by both Maimonides and Ĥanaf ī law. Although Maimonides’ work and the important Ĥanaf ī code Kitāb al-Mabsūt of Muĥammad b. Aĥmad al-Sarakhsī (d. 1106 ce) treat “general” partnerships the same, giving partners the freedom to transact in whatever commodities they see fit, these two works ­maintain at least one significant difference in the day-to-day management of partnerships for which the range of commodities is specified in the agreement (that is, for “specified” partnerships). This difference comes to the fore when one of the partners has used partnership capital to transact in a commodity other than those specified in the agreement. Whereas Maimonides divides any profit from such a transaction equally among the partners (and allocates any losses solely to the individual who transgressed the specifics of the agreement), Sarakhsī holds that any profits or losses from such a transaction are the sole responsibility of the offending partner.75 Jewish law discourages economic opportunists from transgressing the bounds of their partnership agreement by demanding that profits from any such transaction

Commercial Forms and Legal Norms

be divided among the partners; Islamic law permits such opportunism where one takes on all of the risk and reward. The variety of commodities appearing on bills of lading and in traders’ letters suggests that Jewish traders were economic opportunists76 who tried to take advantage of the myriad opportunities that presented themselves in the moment.77 In the case of ordinary partnerships (as opposed to investment partnerships), both partners would be actively involved in seeking opportunities for themselves and for the partnership. Had these traders been operating under Islamic law, they would have had a strong incentive to specify the commodities or range of commodities in which they intended to transact.78 Islamic formularies even point to the ex ante mutual agreement of the partners on which commodities are to be traded.79 This would allow an economic opportunist who saw a periodic “bargain” outside this range of commodities to employ the full partnership capital for his sole advantage, even if this meant taking on additional risk. In contrast, Jewish law does not permit this sort of loophole, since the profits from such transactions would be split between the partners. (Table 1 shows the various distributions of profit and loss to the “opportunistic” partner under the structures of Islamic and Jewish law.) Indeed, opportunists functioning under Jewish law might even prefer the unspecified partnership, since this would minimize their exposure to potential losses from taking risk on “bargains” that would have been outside the realm of the specified partnership. Unsurprisingly, perhaps, the main Jewish formularies even emphasize the unspecified nature of partnerships, referring to “whatever types of merchandise which the Heavens may permit us.” 80 The formulary of Hai Gaon is an exception, as it explains that the partners may make certain stipulations, among them that no partner may transact without his fellow being physically present, somewhat reminiscent of the use of the dual in the Islamic formularies to indicate ex ante mutual agreement.81 However, such a stipulation would clearly be of little use to traders physically distant from one another, and so it would seem instead that such traders would stipulate that “each of us may buy and sell according to what he sees fit—whether in the presence of his fellow or on his own.” 82

169

170

Commercial Forms and Legal Norms Table 1 Distribution of Profits in Specified vs. Unspecified Partnerships Type of Partnership Specified

Legal Structure

Unspecified

Profit

Loss

Profit

Loss

Islamic law

+100%

–100%

+50%

–50%

Jewish law

+50%

–100%

+50%

–50%

Note: Percentage of profit or loss assigned to the opportunistic partner from transacting in a commodity other than that specified in the partnership agreement. Note that the unspecified agreement is to be preferred by the economic opportunist functioning under Jewish law, while the specified agreement essentially gives the economic opportunist functioning under Islamic law access to a larger pool of partnership capital.

Even though partnership agreements from the Geniza concerning a specific shop or economic enterprise such as a sugar factory often contain detail concerning the commodities to be manufactured or traded, only about half of the partnership agreements involving longdistance trade (as opposed to work in a shop or a factory) provide any description whatsoever of the nature of the commodities to be traded.83 Indeed, Goitein argues that broad discretion and latitude was assumed: “Sometimes it was expressly stated that the managing partners were free to act as they saw fit. Where no such statement was made, it was taken for granted.” 84 The slight numerical dominance of unspecified partnership in Geniza documents resonates with opportunists’ desire to minimize their exposure to losses, but the lack of a very strong preference for one type or another among the community of merchants may express the sentiment that a trader would only take advantage of such bargains when they were particularly likely to work out or they were particularly advantageous. Since Jewish law would treat profits from the bargain transaction the same whether or not the underlying partnership was “specified,” traders would have had no clear preference for either form of partnership. Rather, opportunistic traders working under norms described by Islamic law might have preferred to specify their agreements, because their opportunistic use

Commercial Forms and Legal Norms

of partnership capital would garner all the profits from transactions in commodities beyond those specified in the agreement (although they would also be liable for all the losses from such transactions). That the agreements found in the Geniza do not express a strong preference for specification suggests that these opportunistic traders might not have expected to allocate profits and losses according to the model presented by Sarakhsī. Rather, the slight preference for unspecified agreements suggests that they may have expected to have done so in the manner described by Maimonides. In matters of form and substance, then, the documentary evidence from the Geniza suggests that the structure of agreements concerning commercial cooperation from the Rabbanite community, particularly of eleventh- and twelfthcentury Egypt, generally followed details and structures resident in Jewish codes and formularies, even where those details and structures diverged from those in their Islamic counterparts. Significantly, there are periodic exceptions to the general affinities between the relationships described by the Geniza documents and the models for economic cooperation provided by Jewish law described in this section of the chapter, and even the exceptions to these general affinities were themselves ratified in the Jewish court. For instance, the folio British Museum Oriental Collection 10126.685 (written in Bilbays, in the Nile Delta, in 1239 ce) reveals a commenda-style relationship between two Jews to have been renegotiated or restructured into a loan with a “fixed rate of profit” (Arabic, “fā’ida muta‘ayyina”), an arrangement clearly proscribed by Jewish law. A close examination of court practice in Jewish medieval Egypt helps illuminate how those courts might have influenced practice and might explain these outcomes. Such an analysis is necessary to explain both the commonalities and the inconsistencies between the Mishneh Torah and the documents of the Geniza, which could otherwise be explained as a happy coincidence in which the norms of the Gemeinschaft happened to overlap significantly with those of the Gesellschaft.

171

172

Commercial Forms and Legal Norms

The Courts: Pedagogues Rather Than Demagogues Is the apparent—and, significantly, incomplete—correspondence between Jewish legal norms and the details of commercial arrangements indeed just a happy coincidence? What role did the Jewish court have in informing merchants’ choices in structuring their business relationships? This section of the chapter shows that legal procedure in the Jewish courts included a process whereby Jewish merchants were educated as to the classical norms of Jewish law in commercial matters; I suggest, then, that this process of education played a role in merchants’ choices.86 After outlining the process of decision making in the Jewish court, I examine that process in light of contemporary mediation theory. I show judicial authorities to have acted as mediators rather than adjudicators. I also show the role of rabbinic “judges” in educating “litigants” as to the bounds of Jewish law in the process of mediation to have influenced the outcomes of the court, though perhaps not to have defined those outcomes, and therefore to have had an important role in establishing commercial practice. Demonstrating how the norms that are described by the classical sources of Jewish law were implemented by the Jewish courts of medieval Egypt would be rather simple if the Geniza retained a large corpus of detailed court judgments. Unfortunately, though, such “formal judgments, quoting the legal sources and detailing the reasons for the decision made, are almost entirely lacking.” 87 Court records are instead often either depositions germane to the matter at hand or declarations by the parties. These declarations fall into two broad categories: “acquittals” or “acknowledgments.” In both cases, these documents suggest a resolution of the matter at hand: an acquittal denotes the release—often effected bilaterally—from the litigants of any future possible obligation towards each other, at times subject to a final condition such as settlement of a debt; while the acknowledgment declares an outstanding obligation from one party to the other. However, even in the absence of formal judgments, there is no reason to believe that statutory law did not play a role in dispute resolution. As Goitein explains, the composition of myriad rabbinic responsa attests to the role of formal legal norms in the legal process.

Commercial Forms and Legal Norms

Rather, rabbinic concern with punishment for error in judgment—a concern reflected in Maimonides’ Mishneh Torah and its talmudic sources that point out that “any judge who rules in a less than true manner causes the shekhina,” which is to say, the divine presence, “to depart from Israel” 88 —led the court to set down its judgments in the form of declarations on the part of the litigating parties instead of decisions written in the voice of the court. Goitein even mentions a tenth-century judge who accepted his appointment only on condition that he should never be obliged “to give formal judgments in cases which he would decide.” 89 Thus, the literary form taken by “judgments”—to wit, acquittals and acknowledgments—should not mislead the researcher into thinking that they do not represent actual decisions made by the court. Goitein believed that “Muslim judges adopted a similar attitude” 90 and also avoided formal judgments: a famous ĥadīth teaches that “when a judge gives a decision, having tried his best to decide correctly and is right, there are two rewards for him; and if he gave a judgment after having tried his best [to arrive at a correct decision] but erred, there is one reward for him.” 91 Chibli Mallat’s description of a common “Middle Eastern” court practice in his 2007 Introduction to Middle Eastern Law parallels much of Goitein’s description, including an absence of professional counsel, the recourse to outside legal experts, and the centrality of “consensual decision-making, with the judge as the holder of the last say in the matter at hand.” 92 Interestingly, Mallat was unable to find evidence of adjudication in documents from the Geniza.93 The relative infrequence or even absence of adjudication per se might not be surprising if, as explained by Lawrence Rosen, the goal of the qādī, “setting litigants back on a course of negotiating their own relationships,” 94 was taken up by Jewish judges in medieval Egypt who relied on a consensual, nonadjudicative method of dispute resolution.95 Court process in the Rabbanite community of medieval Egypt involved a preliminary review of the evidence in both oral and documentary forms by the rabbinic court, almost without exception in the absence of legal advocates for either party. But where the legal questions were complex, the initial presentation of evidence would be followed by recourse to jurisconsults whose opinions served the advocacy

173

174

Commercial Forms and Legal Norms

function; Goitein writes that “the parties, and if he saw fit, also the presiding judge, would present the case, as it had been formulated in court, to one or more legal experts.” 96 This process mirrors the practice in Islamic law of qādīs (judges) referring their legal questions to muftīs (jurisconsults) and could help reveal why both Islamic and Jewish responsa from the period remove detail from their legal opinions: the advocacy function could be served by these responsa even without all of the personal details from the specific case at hand. As is well known from the responsa of the geonim, which reveal multiple authorities responding to a single question or case, Jewish litigants would often send queries to multiple jurisconsults. Additionally, a single jurisconsult can even be seen periodically to respond to opposing litigants in a single case.97 Jurisconsults were aware of this and specified in their responsa that their “rulings”—that is to say, the conclusions drawn in their responsa—applied only if the details of the case were indeed as stated in the question.98 Analyzing the records of the Geniza, Goitein outlines in detail what, in his understanding, would proceed once the litigants arrayed the responsa of the jurisconsults: After receipt of the opinions of the legal experts, a settlement outside court would be attempted first. Throughout our records, several arbiters, never a single one, are referred to, and as with the composition of a court, a large number of arbiters was considered more conducive to equity than a small one. In a little town in the Nile Delta we find nine persons mentioned by name acting as a board of arbitration with a circuit judge sent from the capital presiding. The circuit judge was advised by his superior to attempt a decision by law only if arbitration failed. Many lawsuits in the Geniza were settled by such agreements.99

Thus receipt of these legal opinions would be followed by an attempt to settle the case extracurially, apparently by “arbitration” panels, which often included judges. Only after efforts at arbitration “failed” would the court hand down a judgment, and even then only after the court itself sent legal queries to its superiors either in Fustāt or, when the chief judges in Fustāt were themselves involved in a case, to the authority figure—the gaon or nagid (that is, the local communal head)—who appointed them. At the same time, the litigants would

Commercial Forms and Legal Norms

also appeal to the higher court or the authority figure even before the lower court handed down a decision. Finally, just before the court handed down a decision, it would give the parties the opportunity to save face by satisfying one another—particularly where the presumed loser was an individual of high standing. The decision itself often demanded that one or more parties take an oath, a ritual that included removing a Torah scroll from the ark and placing it in the hands of the party required to take the oath.100 Examining the dispute resolution process in general, we find it clear that rabbinic adjudication as such was not the default resolution technique, but rather the last resort when disputes were not resolved successfully by other means—just as Mallat mentions with respect to his seventeenth-century Lebanese court register.101 On the other hand, a number of preliminary stages in the litigation involve something Goitein describes as “arbitration” or “settlement.” This part of the process merits closer examination for a number of reasons. First, it seems likely that the process Goitein describes as arbitration was indeed the manner in which parties seeking recourse through the Rabbanite community actually resolved most disputes and therefore a close study of this process might give a clearer idea of the social function of the court generally. Second, an examination of the roles played by the primary characters involved in this process and the documents the process produced may yield some insights into exactly which sets of competing social norms were implemented as a result of the activities of the court. The latter may, in turn, may permit us to reevaluate Greif’s fundamental assumption that the community of traders held and implemented their own set of Gemeinschaft norms. In attempting to discover the role of classical Jewish legal norms in court practice, it is worthwhile to examine the arbitration process described by Goitein. As opposed to a contemporary understanding of arbitration as a process involving the binding adjudication of third parties, the attempted “out of court” settlement by a “board of arbitration” 102 that Goitein describes is only the first step in a larger process of dispute resolution; if “arbitration failed,” the court would “attempt a decision by law.” Yet it would seem that the very essence of the process of arbitration—to wit, the binding aspect of third-party

175

176

Commercial Forms and Legal Norms

adjudication—is absent from his description. That is, the board of arbitration to which he alludes may have been educated as to the details of the case and to the fine points of law as detailed in rabbinic responsa and precedent that had been brought to the court, but the board seems to have lacked the power to hand down a binding decision; otherwise, it is unclear why this board would ever need to return the case to the court itself. Thus failure of the board, as understood by Goitein, would seem to mean a failure to bring the litigants together in agreement in a settlement, not a failure of the arbitrators themselves to arrive at such a settlement. Goitein’s use of the term arbitration seems to refer to settlements outside of any sort of adjudicative body per se. However, in at least some cases, the out-of-court settlement process may have involved the litigants themselves in determining the details of settlements in a more active manner than that typically described by the contemporary legal term arbitration. Indeed, it seems that at times the actual function of this board of legal experts was mediation rather than arbitration—that is, attempting to bring the parties together to arrive at a settlement rather than actually handing down a binding decision per se. Although the traditional Hebrew term for arbitration, “peshara,”103 is not uncommon in legal documents executed in Jewish courts and preserved in the Geniza, the peshara described by these documents (to the extent that this can be determined) is only sometimes the product of the “outside” intervention of “elders,” 104 although at other times it is explicitly the product of the litigants themselves.105 Furthermore, whereas classical rabbinic literature understands peshara to involve the binding adjudication of elders or judges,106 the possibility of “failure” of arbitration can only indicate that the litigants themselves had a role either in arriving at or in accepting the settlement of the board of arbitration—suggesting that the meaning of peshara was broader in the Geniza period than in the rabbinic period, and encompassed both arbitration and mediation. Finally, that the very documents alluding to peshara were executed in the Jewish court suggests that this process was not one that functioned extracurially but was instead an integrated component of the Jewish court’s dispute resolution system.

Commercial Forms and Legal Norms

Perhaps, then, Goitein’s characterization of the dispute resolution process should be modified slightly: it seems that the court began with an attempt to resolve disputes through mediation, in the hopes that this would save the judges from the possibility of error. Mediation may also have had the added benefit of avoiding the dissatisfaction of one or more parties with a judgment decreed by the court, which would have been highly attractive to the Jewish community. The legal environment was one in which enforcement of judgments and the coercive power of the court is unclear; indeed, Goitein writes that “the handing down of a judgment did not always mark the end of a lawsuit. Its execution, even with the aid of the state authorities . . . sometimes caused great trouble.” 107 Thus, reducing the role of adjudication in favor of mediation to reduce litigants’ dissatisfaction might have saved the resources of the court for attempting to enforce particularly difficult situations.108 Given that any case could be taken to an Islamic court “on appeal”— that is, if any of the litigants was unhappy with the result in the rabbinic court, he or she could take the case to an Islamic court, the Jewish court would seem to have a vested interest in producing results that had the support of all concerned. Particularly in Fātimid Egypt (969–1171 ce), when Shī‘ī rulers recognized Sunnī qādīs without restricting their scholastic affiliation, Jewish, Christian, and Muslim litigants may well have had their pick of qādīs who represented a broad range of legal schools;109 litigants’ choice of venue meant that the Jewish and Christian (Coptic) courts essentially competed with Islamic courts to attract cases. Geniza documents and the Islamic formulary literature both suggest that the competition between legal venues affected legal behavior. The former often allude to “Arabic” documents (that is, presumably, documents whose origin was in the Islamic courts) making their way as “evidence” 110 in the Jewish court, and it is clear that scribes in the Jewish court composed legal documents in order to respond to legal concerns present in Islamic as well as Jewish law, 111 just as scribes in Islamic courts of any particular legal school turned to the practice of iĥtiyāt (Arabic, “precaution”) and composed their documents to respond to the legal concerns of the other Sunnī schools.112 Mediation,

177

178

Commercial Forms and Legal Norms

then, would have been encouraged by the Jewish court as more expedient for all concerned. Although the court presumably had the power to intervene and adjudicate, the vast majority of court records does not indicate adjudication per se but only acknowledges a solution that was the product of the dispute resolution process as a whole. In many of these instances, it seems likely that success was achieved in the early stage of the process (that is, mediation), saving the court the trouble of arbitration (that is, adjudication) and its attendant risks both practical and spiritual. It may be that Goitein’s use of the term arbitration instead of mediation was purely an error in nomenclature, because in using the former he is sensitive to the understanding of legal scholars that “mediation” of disputes generally avoids recourse to social or legal norms in the service of a solution acceptable to the disputing parties. His understanding should thus be weighed against theoretical models of mediation. In his seminal article “Mediation—Its Forms and Functions,” published in 1971, the very same year Goitein published the volume of A Mediterranean Society that discusses court procedure, the jurisprudential scholar Lon Fuller wrote that “mediation is commonly directed, not toward achieving conformity to norms, but toward creation of the relevant norms themselves.”113 Likewise, Goitein’s assumption that mediation (in his words, arbitration) creates norms rather than conforms to norms is palpable when he protests that “it would be entirely wrong to assume that the courts acted merely as boards of arbitration, without having recourse to statutory law.” 114 Although Goitein understood that the court was well versed in the details of the cases at hand and the relevant points of law, he would seem to admit Fuller’s point that mediation involves enabling the parties “to meet shared contingencies without the aid of formal prescriptions laid down in advance.” 115 Indeed, Fuller even sees “not in the making of legal rules, but in their enforcement and administration that a certain incompatibility may be perceived between mediative procedures and the ‘rule of law’.” 116 The understanding, then, that mediation dominated the Jewish courts of medieval Egypt, and that mediation meant a certain detachment from the norms of the Gesellschaft, would seem to support

Commercial Forms and Legal Norms

clearly Greif’s model of a tight-knit coalition with the norms of its own Gemeinschaft, even though the court may have been the forum in which those norms were implemented. Yet more recent study of mediation has sought to “separate out the variety of processes grouped together as mediation and distinguish them based on their treatment of social norms.” 117 Thus, in her 1997 article “The Role of Social Norms in Mediation,” Ellen Waldman outlines three distinct models of mediation: “norm-generating,” “norm-educating,” and “norm-advocating.” The first of these models is prefigured by Fuller’s claim that mediation is directed “toward creation of the relevant norms themselves.” In this model, participants in the mediation process themselves articulate possible solutions, encouraged by the mediator to do so. Significantly, Waldman explains that in this model “the mediator does not remove identified options from consideration simply because those options conflict with existing social norms.” 118 Waldman’s other two models both place the mediator in the role of informing the disputants as to relevant social and legal norms, which are then used as a “baseline framework for discussion of disputed issues.”119 The main distinction to be drawn between these two models is that the norm-educating mediator does not insist that the parties implement the norms, while the norm-advocating mediator establishes the bounds for any possible settlement along the range of options allowed by the norms he or she advocates.120 In her discussion of norm-educating mediation, Waldman points out that some American corporations have developed in-house mediation programs to resolve employee disputes that are not explicitly norm-educating yet are nonetheless informed by legal norms. Indeed, one corporation’s decision to use only mediators with an employment law background leads Waldman to conclude that in such cases “the ‘objective perspective’ is, thus, informed by judicial norms and standards.”121 Likewise, although Goitein does mention that “upright elders” or “peace-loving persons” 122 might play a role in extracurial settlement, such cases may nonetheless have involved a mediation board headed by a circuit judge.123 Thus members of the court may well have been familiar with Jewish law and (like the employment law mediators) have been norm educators simply by virtue of their

179

180

Commercial Forms and Legal Norms

educational and professional background. The norm-educating aspect of mediation would undoubtedly have been facilitated when expert legal opinions were introduced into the dialogue; as mentioned, Goitein explains that these opinions were composed and received by the court prior to the attempt to resolve the matter via mediation. Yet the mediation system of the Jewish court can hardly be said to have been a norm-advocating context as envisioned by Waldman, which she defines as one in which “the mediator not only educated the parties about the relevant legal and ethical norms, but also insisted on their incorporation into the agreement.” 124 The documentary evidence itself suggests that this model is inappropriate, the aforementioned agreement renegotiating a failed partnership into a loan at a fixed interest rate being the clearest example.125 Since the conditions of this document violated classical Jewish legal prohibitions on interestbearing loans, it is patently obvious that the court did not act in a norm-advocating role. However, Waldman herself points out that the mediation of agreements in a norm-educating context may periodically involve overriding a norm without destroying the system on which that norm is based. Thus Waldman writes that a settlement in which one waitress trades her right to be free of admiring but objectifying comments at work for higher pay is less disturbing from a public policy viewpoint than a class action settlement in which thousands of women workers “agree” to continue to work in an obscene, insulting, and intimidating environment. The normeducating model is appropriate only in conflicts in which the relevant norms may be disregarded without weakening the ideals upon which our government and legal structure are based.126

Even though it is clear that a loan at fixed interest transgresses classical Jewish legal prohibitions, it hardly seems likely that the single commercial relationship described in BM Or 10126.6 would have weakened the ideals on which medieval Jewish society was based. On the contrary, it would seem that this document, which Goitein described as unique among Geniza documents in stipulating a fixed interest rate, represented an exception proving the rule that traditional prohibitions on interest-bearing loans were indeed followed—at least in the main.127 The Jewish court’s imprimatur on a loan at fixed interest is

Commercial Forms and Legal Norms

clear evidence that those courts were not norm-advocating, but this does not mean that the courts were exclusively norm-generating as opposed to norm-educating. Rather, the model of elders as court representatives charged with the specific role of bringing counterparties together and educating them as to classical Jewish norms, whether through the opinions of jurisconsults arrayed by the various litigants or simply in session with those litigants, suggests that the Jewish court indeed served in a norm-educating role. At times, this process failed, but it would seem that the first stage of decision making, at least, gave the litigants the opportunity to come to agreement after having been educated as to Jewish legal norms in the area in which they wished to draw up a contract or resolve a dispute. My reading of the court as norm-educating is further supported by the general adherence of partnership agreements as they appear in the court records of the Geniza to legal norms as canonized in classical Jewish legal codes. The preponderance of agreements formed in line with Jewish norms by merchants and traders understood to have been educated as to those norms seems to have resulted in agreements that integrated the norms, whereas a norm-generating process in which the counterparties would have had less direction from the agents of the court would likely have resulted in a distribution of outcomes less reflective of classical Jewish norms. Both the much greater general proximity of Jewish merchants’ arrangements to classical Jewish norms than envisioned by Goitein or Udovitch, and the existence of occasional outliers such as BM Or 10126.6 combine with the foregoing analysis of court procedure to strengthen my depiction of the Jewish court as norm-educating.

Which “Norms”? In reviewing the work of the court, it is important to distinguish between the canonical norms of Jewish law in the domain of commerce and the default norms of the marketplace, so that we may establish precisely which set of norms were those with which the court might have “educated” litigants. Although the legal experts

181

182

Commercial Forms and Legal Norms

who wrote opinions that were brought before the court may have had personal experience as merchants, as perhaps did the members of the court themselves, the court’s legal experts did not explicitly self-identify in their role as merchants when they were serving in their capacity as jurisconsults or as mediators. That is to say, merchants are certainly found as signatories notarizing court records, but it is not in this capacity that they sign those records. The norms to which jurisconsults made reference, and for which mediators found themselves in a norm-educating role, were not those of the merchant community per se but rather of normative (that is to say, “halakhic”) Jewish society as a whole, which those jurisconsults were presumed to represent. In this, the Jewish court is to be distinguished from the “Piepowder” or “Law Merchant” courts found in twelfth-to-fifteenth-century Britain. In describing the Piepowder courts, Scott Belhorn writes that Over the course of these several centuries, commercial law developed at a distance from the powers of the state, regulated by mechanisms operating mainly within the market. The remarkable feature of this history is that the very merchants most affected by this law oversaw the arena in which it was administered. . . . In effect, the laws of the fair were the merchants’ own evolving social norms.128

Jewish law as found in classical legal compendia did not generally suffer the problem faced by medieval European merchants that the variation of local standards from borough to borough would have made it difficult for merchants to discover, much less conform to, such standards, begging the formation of cross-jurisdictional courts. This may have indeed allowed Jewish law to serve as a cross-jurisdictional law. However, Menaĥem Ben-Sasson does note, citing a responsum of Sherira Gaon, that local practice in Fez was to indemnify agents serving principals in a commenda from liability for trading losses except in the case of malfeasance—a divergence from classical Jewish law that resonated with Islamic law.129 Jurisconsults were therefore clearly aware of some local norms in writing their opinions. A norm-educating model for mediation practice among the Jewish courts would allow local traders to form their agreements according to that custom even after having been educated as to the classical sources of

Commercial Forms and Legal Norms

Jewish law on the matter. This is once again to be contrasted with the Piepowder courts, for which Bellhorn points out that lawyers “were generally denied entrance.”130 Sherira Gaon’s acknowledgment of local custom in Fez is important, because it points to an understanding that Jewish legal norms are neither promulgated nor perpetuated in a vacuum but respond to pressures from local custom and from realia generally. Thus, a geonic responsum famously refers to “ĥukm al-tujjār” (Judeo-Arabic, “the law of the merchants”),131 as the legal basis on which the practice of check writing is permitted, despite an explicit talmudic ruling to the contrary. Whether the ultimate source of Rabbanite Jewish legal norms was quotidian practice itself or talmudic texts, it would seem clear that involving agents of the court in the mediation process could make the court the locus of a dialogue between standards canonized in legal compendia and responsa on the one hand, and customary practice and the pressures of the marketplace on the other. The norm-educating model allows and even encourages this dialogue. This dialogue would also have provided an important feedback loop as the agents of the court continued to work in concert with their own jurisconsults. The norm-educating model can be seen as creating a dialogue between the legal opinions of jurisconsults and the needs of individual litigants, as those litigants arrayed opinions (that is, responsa) in their favor or Jewish judges requested those opinions and brought those responsa to the court. Examining responsa and the process of their dissemination can shed some light on precisely whether judges and jurisprudents made recourse to talmudic norms or instead to some other set of customary rules. As mentioned above, Waldman understands the selection of employment law practitioners as mediators by some American corporations to influence the range of outcomes, though obviously not to limit that range. The regular citation of talmudic norms in responsa, even in the infrequent case in which they are presented to point out a divergence in customary practice from those norms, suggests that jurisprudents were aware of these norms and that litigants had at least a rudimentary exposure to them.

183

184

Commercial Forms and Legal Norms

Indeed, Jewish litigants’ presumed ability to choose a venue intelligently that would give their case a good hearing from among a range of options including both Muslim and dhimmī (Jewish and Christian) courts suggests that they may indeed have been somewhat sophisticated as to the norms that would form what Waldman calls the “objective perspective” of the various venues in which they could seek recourse. This suggestion is given support by the legislative innovation of the geonim of Babylonia following the Islamic conquest that permitted the court to grant a divorce from a “rebellious wife” immediately, instead of after the talmudically imposed delay of one year, as Robert Brody explains (citing geonic sources themselves) that “this ordinance was apparently motivated by the fear that Jewish women . . . might seek the assistance of Islamic authorities and possibly even convert to Islam in order to dissolve their marriages without delay.”132 It is clear, then, that the geonim themselves were aware of the competitive nature of venue selection and understood litigants to have at least an elementary knowledge of the various expected baseline outcomes in each venue. It perhaps goes without saying that Jewish jurisconsults themselves were aware of talmudic norms. Yet this need not mean that they adhered to them. Indeed, responsa of the period avoid citing talmudic material as often as they actually do cite it, and so one might suggest that jurisconsults were themselves actually norm-generating and unconstrained by statutory law. Although geonic codes such as Halakhot Pesuqot and Halakhot Gedolot (Babylonia, eighth and ninth century, respectively),133 as well as Alfasi’s Halakhot Rabbati (eleventh century, Fez) largely recapitulate talmudic material, the popularity of these works does not necessarily suggest that the rank and file of the Jewish community in the medieval Mediterranean was familiar with talmudic norms. Indeed, the possibility that even the learned elite in the Mediterranean diaspora may have maintained a low level of talmudic learning is colorfully described by the twelfth-century Spanish historiographer Abraham Ibn Daud in his “Story of the Four Captives.” 134 Likewise, in providing his rationale for composing the Mishneh Torah, Maimonides reflects such a sentiment: “Our wise men have lost their wisdom, and the understanding of our astute people is

Commercial Forms and Legal Norms

hidden.” 135 This suggests that geonic jurisconsults could take at least some liberties in laying down the law against the grain of its talmudic sources without fear of being challenged.136 However, codificatory works seem to have mediated a dialogue among talmudic sources, responsa, and geonic monographs that occasionally challenged the opinions of the geonic authorities. Indeed, the interpolation of geonic responsa in the various recensions of Halakhot Gedolot 137 points to a perception among copyists and perhaps also among users of these codes that a dialogue existed among these various sources of Jewish law. These codes therefore served not only to communicate talmudic norms and make them more accessible to a population for which those talmudic sources were obscure, but also to react to the casuistry of the geonic authorities to whom it had fallen to implement those norms. The phenomenon of reconciling talmudic sources with geonic opinion, embryonic in Halakhot Gedolot, comes into fuller flower with Alfasi’s Halakhot Rabbati. Thus, the former code cites a relatively small number of geonic authorities, notably the eighth-century Suran geonim Mari 138 and Ĥaninai 139 as well as Yehudai,140 but Maimonides writes concerning Halakhot Rabbati “in this work, [Alfasi] cleared up all the errors that had crept into the ­ r ulings of his predecessors,” 141 and Alfasi cites the opinions of geonim ranging from the eighth century to the eleventh.142 Each generation of codification, serving to “correct” geonic opinions, would therefore have exerted a subtle pressure on subsequent ­generations of geonic authorities. Those authorities would, in turn, have expected their own opinions to be reviewed by later codifiers in light of the ­talmudic sources. Indeed, the dialogue between the various genres of geonic legal composition is brought into relief in this citation from the ‘Ittur of the twelfth-century Provençali jurist Isaac b. Abba Mari: Our Rabbi Samuel b. Ĥofni wrote in The Book of Partnership that despite the fact that partnership funds are not commingled, the relationship is still considered a partnership, and profits are to be divided; Rabbi [Isaac] Alfas[i] disagreed with him in a responsum, writing that this applies only when the [partners] commingled the funds in a ­common purse.143

185

186

Commercial Forms and Legal Norms

Although it is not clear from the text of the ‘Ittur that Alfasi’s responsum actually cited Samuel b. Ĥofni’s monograph on partnership,144 Isaac b. Abba Mari’s arrangement of the legal sources produces a dialogue between the two; and the arraying of talmudic sources, geonic monographs, and responsa alike in the ‘Ittur as a synthetic code suggests a productive tension between these diverse literary genres in the development of the substance of law. The act of composing responsa, then, can and indeed must be seen as extending beyond the production of an opinion to be implemented in a specific case. The citation of responsa in subsequent legal works suggests that responsa were disseminated among the legal elite (at least), and that the opinions of prominent geonic jurists could be both cited and challenged later on. As is well known, the working relationships between the communities of the Mediterranean diaspora and the geonic scholarly centers of Babylonia and Palestine was such that responsa were copied and broadly distributed, both for practical use and as study aids as local centers of learning developed.145 Geniza documents also allude to the copying of responsa for use by local authorities,146 as well as the aggregation of such responsa in collections;147 such documents also attest to prominent local authorities reading and writing responsa that were copied and distributed beyond their own locales.148 As local centers of learning arose, the copying and distribution of responsa of the geonim of the academies throughout the Jewish community as a whole may have been augmented by a similar practice disseminating responsa of local authorities—as attested by the responsa of Alfasi that have found their way into the Geniza. As they were aware that their responsa would be publicly distributed, more broadly applied as precedents, and perhaps even subject to challenge, later geonim “more frequently discuss in detail the sources and interpretations underpinning their decisions and are likelier to address issues which are broader than those required for the solution of the question which they were posed.” 149 As local centers of learning developed, particularly in Qayrawān, 150 Cordoba,151 and Cairo,152 local authorities would have been aware that their opinions were subject to the same scrutiny as their geonic predecessors. This contributed to a legal environment in which jurisconsults would have been

Commercial Forms and Legal Norms

under some significant pressure to be norm-educating rather than norm-generating. Even where the local level of learning was quite low, the accessibility and popularity of both broad-based codes and halakhic monographs from the geonim and from Alfasi would have limited the freedom of jurists. That such codes were broadly received can be inferred from the fact that there are extensive textual witnesses to Alfasi’s code and Halakhot Gedolot alike among the Cairo Geniza fragments, as well as extensive reference to Alfasi’s work in subsequent codes.153 Alfasi’s efforts in responding to the responsa of geonic authorities would have encouraged jurisconsults of eleventhcentury Fustāt to pen responsa that did not do violence to his reading of t­almudic sources. Dissemination of responsa among jurists, the economic and commercial elite of the North African Jewish community,154 and perhaps even in the hands of a rank and file who could use responsa to support their claims in a Jewish court would likely have encouraged jurisconsults to issue their opinions carefully. The ever-present possibility that a judge might overturn a particular jurisconsult’s ruling on appeal to a more senior authority, diminishing the status of the jurisconsult whose ruling was appealed if his opinion were publicly overruled, would indicate pressure on jurisconsults to rule in a manner that was recognizably in dialogue with precedent, consisting of talmudic sources, geonic monographs and legal compendia, and the responsa of other jurisconsults, including both the geonim of the academies and other local jurisconsults. As the movement toward codification developed from the ninth century to the twelfth, legal compendia strove increasingly to reach a population perceived as being incapable of interpreting talmudic precedent; 155 Maimonides’ code is even composed to supplant recourse to the “Oral Law” as the way to discern the law.156 Despite his attestation that “I explicitly wrote that my sole purpose in composing it was to alleviate the burden of those students who because of their impatience of spirit were not able to descend to the depths of the Talmud,”157 the Mishneh Torah seems to have been disseminated quite quickly and with great popularity. This would have made it even more difficult for a local jurisconsult to incline away from talmudic norms as they were characterized in Maimonides’ compendium.

187

188

Commercial Forms and Legal Norms

As jurisconsults would have been under some pressure to toe the line of talmudic and geonic precedent in their opinions, it seems likely that litigants in the Jewish courts would have been exposed to classical Jewish norms through the mediation process. It is, of course, impossible to determine whether it is the exposure to these norms in the courts, in the marketplace as a whole, or in the familial clancum-coalition that Greif describes as the seat of Gemeinschaft norms that led to their adoption in agreements. However, that the legal agreements in the Geniza generally reflect those norms to which all litigants would have been exposed when initiating, maintaining (as when rendering accounts), or terminating partnership relations would seem to challenge the proposal that the norms reflected in those agreements actually reflected the distinctive Gemeinschaft norms of a subset of Jewish merchants. Rather, it would seem that these norms were implemented in part because of the influence of the Gesellschaft, personified by the official representatives of the mediation process. At the margins, where the Gesellschaft might not have had such influence, the norm-educating role of the court was such that the legal opinions it produced reflected the norms of the Gesellschaft, even if the agreements did not always do so. This would have ensured the integrity of the Jewish legal system and its fealty to classical texts without sacrificing the flexibility required to meet the needs of the marketplace.

The Social Role of the Courts That Jewish partnership agreements generally seem to be in line with talmudic norms may say something about economic practice, but it also says something about the social role of the courts in which these agreements were notarized. Even though traders were undoubtedly acculturated to local practice in the marketplace itself, the court was a vehicle for educating those traders to the norms of Jewish law both at the formation of and during the maintenance of those agreements. Although some scholars of contemporary American law view the adversarial process of adjudication as putting pressure on a contractual relationship—Stewart Macaulay, one of the founders of the study of

Commercial Forms and Legal Norms

the sociology of law, describes litigation as damaging if not damning to a relationship—it would seem that the Rabbanite Jewish court simply provided a forum for public acknowledgment of milestones in the life cycle of a partnership relationship. Thus agreements were initiated publicly and also terminated publicly with the execution of an acquittal or release; the Geniza even reveals court records appending a document renewing a partnership to the bottom of a document releasing the very same partners from any former obligations.158 It would seem, then, that the social function of the release document was as a regularly scheduled cyclical audit of accounts, a milestone in a relationship rather than its terminus; to this end, partnership documents periodically stipulate such a reckoning, 159 and release documents often explicitly mention that exactly such a reckoning has taken place.160 Arabic documents produced in Islamic courts would make their way into the Jewish courts, but the attachment of renewals to the bottom of releases would suggest that the locus of the cyclical ritual of settling accounts (at least on paper) was the Jewish court. As a forum for mediation rather than adjudication, the courts could focus on maintaining relations rather than on negotiating their termination. Greif is undoubtedly correct that the reputation mechanism played an important role in preserving an individual’s future opportunities in the marketplace, and the information flow depicted in letters is clearly important for gauging agents’ behavior. However, the courts seem also to have played a key role in mediating conflict and managing relationships; and the norm-educating role of the courts meant that in tandem with Gemeinschaft-like norms of the trading community, economic actors were asked to measure their behavior up against the norms of the Gesellschaft found in the works of contemporary Jewish jurists.

Settlements Outside of the Jewish Court Even though I have identified a correspondence in this chapter between documents executed in the Jewish courts and the Gesellschaft norms of the Rabbanite legal system, such a correspondence may have

189

190

Commercial Forms and Legal Norms

been irrelevant for most of the community of Jewish merchants. After all, Goitein believed that much of the time “settlement was made out of court, or before Muslim notaries.” 161 In this section of the chapter, I consider how even those agreements made outside the Jewish courts were nonetheless influenced by Jewish Gesellschaft norms. First, in the general absence of Jewish documents emerging from Islamic courts,162 it is difficult to conclude much about the relative frequency with which they were written or their contents, although it is possible and indeed likely that some such agreements did transgress the Gesellschaft norms—for example, in following the structure of the Muslim commenda. But Goitein’s understanding that a general tendency among merchants to employ the commenda form led Jewish merchants to Muslim courts is challenged by the willingness of Jewish courts to execute agreements that followed the Islamic form, and so the use of Muslim courts by Jews to execute commenda-style agreements may have been less frequent than Goitein thought. However, the importance of what Goitein calls “out of court” settlement cannot be ignored. As I have mentioned, attempts at this sort of settlement were actually part and parcel of court practice, attested to by the existence of scribal formulae for “settlement” documents.163 Indeed, Sa‘adya Gaon’s scribal manual even contains a formula for a “settlement” document (Arabic, “sulĥ,” a calque on the Hebrew “peshara”), which Sa‘adya describes as a frequently used document form.164 According to Sa‘adya, the executing judge “only turns to sulĥ when the claims of both litigants have been considered.” 165 In his discussion, he refers to a statement from Talmud Bavli Sanhedrin 32b in which two camels are walking up a dangerous and narrow path; the parties need to make a decision in the moment as to which camel is to go first. Sa‘adya explains that a document of sulĥ is written when the court examines the decision and then proceeds to affirm it.166 Although the extracurial aspect of this settlement might seem at first blush to remove commercial agreements from the norm-­educating forum of the court, the role of the court in giving its imprimatur to these agreements suggests otherwise. That counterparties were educated as to Jewish legal norms through their regular recourse to the court as part of their process of maintaining long-term partnership

Commercial Forms and Legal Norms

relations suggests that even if the settlement was made entirely out of court, the process of norm education on the part of the court when that court examined and affirmed the settlement decision would create an iterative feedback loop, through which counterparties would be aware of the relevant Jewish Gesellschaft norms when they next needed to arrive at a settlement. Furthermore, the documentary evidence reveals that sulĥ was understood by the Jewish community to include both the court’s affirmation of an extracurial determination on the part of the parties and actual court-implemented settlements.167

Jewish Courts, “Jewish” Structures: A Deliberate Choice Although Jewish agreements seem generally to reflect the norms canonized in compendia such as the Mishneh Torah, it would seem that the Jewish community’s court process was structured such that individuals could have chosen to structure their partnership relationships otherwise. Thus, in a broader, Islamic environment that likely disseminated Islamic legal norms through a system of jurisconsults and judges similar to that sustained by the Jewish community, and in which participants in the marketplace were generally aware of Islamic legal norms, even if the majority of economic actors (to wit, Muslims) may not have been aware of Jewish legal norms, the choice of Jewish economic actors to make recourse to Jewish legal norms must be seen as deliberate. There may or may not also have been economic reasons for principals and agents to choose the models of cooperation offered by Jewish law over those offered by Islamic law: the practice of indemnifying the agent from losses as in a commenda arrangement produces a serious adverse selection problem, which has come to light in contemporary economic literature.168 Yet if medieval Jewish and Islamic merchants were aware of this potential problem, they could simply have dealt with it by limiting the commodities in which their agents were permitted to trade;169 to this end, Goitein mentions that individual merchants often specialized in certain commodities.170 On the other

191

192

Commercial Forms and Legal Norms

hand, the commenda would seem to offer advantages of its own; giving the agent an equity interest while indemnifying him or her from liability for losses, using the commenda might have expanded the pool of possible agents to include those who would have otherwise lacked the capital to participate in ventures whose payoffs were variable and in the distant future.171 Yet the ‘isqa actually shared this characteristic in that it required no cash outlay on the part of the agent, and widely available credit 172 may also have made it possible for agents participating in ‘isqa agreements to cover their losses. Although Udovitch believes the commenda to have been ideally suited for long-distance trade, he muses that the flexibility of Ĥanaf ī law as to the division of profits between principal and agent was “probably allowed in recognition of the varying degrees of risk involved in obtaining, transporting, and profitably trading with different categories of merchandise.” 173 However, the Jewish instrument actually contains this same flexibility. The most significant difference between the commenda and the ‘isqa, then, is the agent’s ultimate liability for losses, an eventuality that may have been significant and perhaps even frequent but was on balance certainly not the expected outcome for trade.174 However, if the Jewish preference for the ‘isqa form as opposed to the commenda as outlined both in this chapter and in Chapter 2 was motivated by economic rather than cultural reasons, Muslim merchants would probably have employed a similar form. This might even suggest that it was the Mishneh Torah and not Ĥanaf ī law that was a “medieval Islamic Law Merchant”—a proposition that seems difficult to accept given that most Muslim merchants (who would have made up the numeric majority of merchants in medieval Egypt) would likely not even have been aware of the norms of the Mishneh Torah. Correspondingly, if the ‘isqa form had a significant foothold in the commercial practice of Muslim merchants, one might expect Ĥanaf ī law, at least, to have acknowledged it in some way, particularly in light of the prominence of custom in Ĥanaf ī law.175 That the two instruments seem to be economically closer to one another than previously thought emphasizes the volitional aspect in Jewish merchants’ apparent choice of (if not a preference for) the talmudic ‘isqa over the Muslim commenda. Having been regularly

Commercial Forms and Legal Norms

educated as to the norms of Jewish law when they made their agreements and yet retaining the freedom to structure those agreements in other forms that may even have been popular among their Muslim colleagues, Jewish merchants’ employment of “Jewish” models of commercial cooperation must be seen as a deliberate choice. This choice did not express a loyalty to the Jewish legal system per se, for the court seems to have been willing to approve agreements at odds with Jewish legal norms; nor did it express an allegiance to a small subgroup. Rather, it seems the deliberate choice of identifiably “Jewish” partnership models, structures, and commercial language in legal documents reflected an affinity for the Jewish community as a whole and the social and cultural institutions it sustained.

193

Four 

194

 he Geniza, Jewish Identity, and T Medieval Islamic Social and Economic History

The foregoing chapters of this book problematized the “identity” that previous scholars have understood to exist between the theoretical formulations of the narrative works of Islamic law and the practice of mercantile cooperation as described by the documents of the Cairo Geniza. Rather than resembling Islamic law, the structures of ­commercial cooperation revealed by the Geniza documents seem often to be in harmony with the details of the narrative works of Jewish law—which themselves differ noticeably from Islamic law. The previous chapter’s close reading of court practice suggests that this was more than simple coincidence; individuals who came to the Rabbanite court in Fustāt were explicitly educated as to the norms of Jewish law concerning mercantile cooperation. Yet it is also clear that those Jewish legal norms were treated by the Jewish court as guidelines rather than boundaries; that is to say, the court seems to have been willing to validate agreements that were not always in line with the narrative sources of Jewish law. Thus the frequent choice of Jewish merchants to structure and maintain their commercial ventures according to the models drawn from Jewish law should be seen as something other than the result of coercion from Jewish authorities. Indeed, Jewish merchants seem to have had every right to structure their relationships in ways that flouted Jewish norms, and on occasion they did. In Chapter 1, I explained that previous scholars have overlooked the possibility that economic life was a fertile area for cultural selfexpression on the part of the Jewish community of medieval Egypt. Yet the evidence from the Geniza supports just such a possibility. How

The Geniza, Jewish Identity, and Medieval Islamic History

the practice of Jewish merchants accorded with the narrative sources of Jewish law is consistent with some broad preferences identifiably located within Jewish culture in its medieval Egyptian setting. This suggests that how Jewish merchants structured their relationships was, to them, identifiably, distinctively, and consciously “Jewish.” Does this apparent attachment to identifiably “Jewish” cultural preferences even in the domain of economic life topple the working assumption of the Princeton School that led its exponents to see in the Geniza the “typicality of Jewish business correspondence” providing “a template of commercial life”? If not, was anything actually identifiably “Jewish” in mercantile practice, or was Jewish identity simply an ideational construction? If there was something distinctive in the commercial practice of Jewish merchants, how can the practices whose records survive in the Geniza be used to depict commercial cooperation in the medieval Islamic world as a whole of which those Jewish merchants were a part? All these questions touch on the problem of “convergence” to which Richard Bulliet alluded in his review of Goitein’s A Mediterranean Society;1 and so, if the Geniza is indeed to fulfill its potential as a rich (indeed, perhaps the richest) documentary source for the study of the medieval Islamic Mediterranean, this problem must be addressed anew in light of the conclusions of the foregoing material. In this chapter, I reevaluate the possibility that Jewish mercantile practice was indeed “typical,” pointing out that the construction of Jewish identity through economic life need not necessarily rule out the idea of a commonality of practice inferred by other scholars. Following this argument to its logical conclusion, I very briefly consider the possibility that Muslim merchants actually structured their commercial relationships according to the models seen in Jewish legal sources even where those models differ from the models seen in Islamic legal sources. Although such a proposition cannot be definitively rejected in the absence of documents from medieval Muslim merchants themselves, I tentatively reject it in light of the connections drawn by Wael Hallaq between the narrative works of Islamic law and scribal practice. Where possible, I bring detail from documents emerging from Muslim hands that supports this point.

195

196

The Geniza, Jewish Identity, and Medieval Islamic History

The assumption that the data from the Jewish Geniza documents are “typical” of the merchant population as a whole, and therefore that Jewish and Muslim merchants structured their commercial partnerships in the same manner, would seem to demand, in light of the preceding chapters, that the models promoted by Jewish legal sources were generally followed while those promoted by Islamic legal sources were ignored. However, even if we relax this assumption, the idea of Jewish “typicality” need not be rejected. That is to say, typicality need not obtain at the level of particular behaviors. In this chapter, I ­propose an alternative definition of typicality focusing on mentalités rather than behaviors—and so, shared social aggregates will take the place of shared behavioral details. For a model that explains these shared social aggregates, I turn particularly to the work of Robert Bonfil and of Abraham Marcus, whose studies of Jewish life in Renaissance Italy and eighteenth-century Aleppo (respectively) also reveal Jewish communities whose sense of typicality or em­bedded­ness they discover in shared mentalités rather than in shared behaviors. I also turn to the work of Rina Drory and Itamar EvenZohar, whose structuralist/functionalist models of literary contacts eschew the focus on narrow details of practice typically employed by historical-­philological and comparative literature approaches in favor of a broader and more holistic approach. Ultimately, one of the inferences of my alternative model (which, for reasons I explain below, I call the “specular-relational model”) is that Muslim merchants structured their relationships according to the models seen in Islamic law; it is perhaps ironic that Udovitch drew the same conclusion using the detail that he gleaned from the commercial letters in the Geniza. Yet I draw this conclusion only after finding that Jewish partnership practice looked very different from the picture painted by Udovitch. Furthermore, the specular-relational model ascribes a contributory role to Islamic law in shaping practice even as Udovitch viewed it as simply recording practice. Thus the alternative I present to a convergence in behaviors across subcultures is one in which the literary and commercial production of the Islamic world does indeed contribute to an internal dialogue within the Jewish community—but this contribution is also understood to be in dialogue

The Geniza, Jewish Identity, and Medieval Islamic History

with the other elements of Jewish literary and commercial production in shaping Jewish practice. The corresponding model of quotidian life in the medieval Islamic world that emerges from this chapter reflects the added complexity of the model of Jewish practice. The implications of this model for studying the social and economic history of the medieval Islamic world should be clear: quotidian detail found in Geniza documents should not be taken in isolation to depict the daily life of the broader culture of which the documents’ Jewish writers were but a part. Rather, the literary production of the medieval Islamic world (including its legal sources) as well as the extant documentary material should all be taken into account when extrapolating from the Geniza documents. Essentially, then, the specular-relational model engages Goitein’s statement that “specifically Jewish are matters of religious ritual, family law and community life” 2 in two ways: first by exploring the possibility that there were aspects of Jewish economic life that were also “specifically Jewish,” and second by arguing that nothing was “specifically Jewish” in its entirety. Such a model is less revolutionary than it might appear at first blush. Ultimately, Goitein himself would have admitted the latter claim; he explains in his 1953 article “A Jewish Addict to Sufism in the Time of the Nagid David II Maimonides” that “Abraham, the son of Maimonides . . . does not conceal the influence of the muslim mystics upon him and his admiration for them.” 3 Goitein’s understanding of “specifically Jewish,” then, must not have been “exclusively Jewish.” The model accounts for the possibility that the economic behavior of Jews could be specifically Jewish no less than prayer texts, both being the concrete manifestations of complex and dynamic environments of dialogue and influence.

Typicality and Its Difficulties Precisely whom do the Geniza documents represent? It is tempting to view the Geniza as a window into medieval Jewish society in Egypt (or indeed, medieval Egyptian society as a whole); Cohen even pointed to this in entitling an article “Jewish and Islamic Life in the Middle

197

198

The Geniza, Jewish Identity, and Medieval Islamic History

Ages: Through the Window of the Cairo Geniza.” 4 Yet the metaphor of a mosaic is more appropriate—hence the Israel Museum entitled its 1997 exhibition of Geniza documents “The Cairo Genizah: A Mosaic of Life.” Like a mosaic, the Geniza reveals disconnected fragments of diverse coloring and content. Goitein was well aware of this, describing the Geniza as “a true mirror of life, often cracked and blotchy, but very wide in scope and reflecting each and every aspect of the society that originated it. Practically everything for which writing was used has come down to us.” 5 It would seem that beneath his description of the mirror lay an awareness of the cracks and blotches that belie or at least challenge the historian’s attempts to portray the whole in a holistic, coherent, and smooth manner. Striking a balance between the coherence that glossing over these cracks can provide and the nuance that comes into view when these cracks become the focus of the historian’s energies is extremely difficult. Indeed, my use of Geniza materials concerning mercantile co­oper­ation from the tenth to thirteenth centuries as a unified whole undoubtedly glosses over distinctions in commercial practice that may have shifted over time, or that may have been specific to one or another subset of Jewish traders. In so doing, I have deemphasized the idea of variation among these merchants, although I have also pointed out where my findings represent a preponderance of the data rather than the whole. Furthermore, the specular-relational model I introduce in this chapter accommodates the diversity of practice that was without a doubt the historical reality. Future readers of the Geniza documents may bring forth other findings by adding to the pool of available data and by organizing those data differently. However, I have treated the Geniza merchants as a somewhat coherent stratum of medieval Egyptian Jewish society in order to contemplate how these merchants might have thought about their place in their Fātimid and Ayyūbid contexts as a whole. Indeed, each of the diverse aspects or strata that the Geniza portrays presents its distinctive problems. For instance, Stephen Humphreys describes medieval Islamic society as a society of rural peasants, though he points out the difficulty in hearing their voice: “illiterate and politically marginal, the peasant could not speak for himself,

The Geniza, Jewish Identity, and Medieval Islamic History

while the literate citied classes who lived from his labors were too preoccupied with the service of God and the heroics or antics of kings to pay him much heed.”6 This marginality obtained in urban areas as well as in the domain of the peasant to which Humphreys refers. Cohen notes that the voices of the poor “are not always unmediated. Many of the personal letters of appeal, especially those of the women, may not actually have been written by the indigents themselves, but rather by a professional scribe, a friend, or a family member.” 7 Cohen considers the possibility that such letters may shroud the situation of the poor in rhetoric or hyperbole, often being composed in order to amass sympathy and financial support. However, he downplays the effect this problem might have had on the sort of data he looks to glean from the letters: he sees Geniza documents as reflecting “‘facts’ about the mentality of the poor and the expectations of their would-be benefactors.” 8 In the case of letters concerning the poor, Cohen minimizes the role of “fiction in the archives” 9 by arguing that the writers of these letters “had less need to invent fictitious events to ‘win their case’.”10 He therefore seems to feel comfortable using the data from letters relatively uncritically to describe “the actual lived experience of the poor as well as the strategies they employed to survive.” 11 In fact, however, the “structural poor” (to use Cohen’s taxonomy, which contrasts the structural poor with the “conjunctural” poor) receive little attention even in Cohen’s own book about the poor. Cohen can only reveal an echo of this truly marginal group, identifying them through their professional titles because these titles happen to appear on the lists of charitable recipients (but never on the lists of charitable donors).12 Establishing this very important taxonomy of the poor, much of Cohen’s discussion actually ends up being focused on the “conjunctural poor,” generally middle-class individuals who had experienced a life event causing them to fall from their station in the economic hierarchy. That is to say, the structural poor continue to receive short shrift because of the difficulties inherent in the documentary evidence: presumably, the documents that were preserved as Geniza fragments were written only by those who could afford the materials on which to write (or were themselves writing on behalf of

199

200

The Geniza, Jewish Identity, and Medieval Islamic History

someone else). The researcher must not ignore the selection bias this introduces into the authorship and hence the point of view of the Geniza fragments. At the opposite end of the economic spectrum, too, the Geniza’s silence is palpable. Goitein points out that the Jewish communities of Cairo and Fustāt lived “distinctly separate lives,”13 presumably with those in the upper echelons of society (and particularly those with connections to the caliphal court) taking up residence in Cairo proper in order to maintain proximity to the seat of power. Yet Goitein also writes that “paradoxically, Cairo, especially in Fatimid times, is ­represented in the Geniza mostly not by the upper crust, for which it was renowned, but by a social layer that both materially and spiritually was poorer than many a community in a provincial town.” 14 According to Goitein, Geniza materials from Cairo (as opposed to Fustāt) emerged from the hands of menials or even the destitute; those connected to the caliphal court might have corresponded in Arabic characters and therefore may not have felt the need to deposit their disused documents in the Geniza, or perhaps they discarded their documents in a synagogue in Cairo proper that has since disappeared. Goitein was well aware, then, that the Geniza documents were most directly illustrative of middle-class life.15 Yet, although the majority of the documents themselves emerged from the hands of the middle class, Goitein believed that the documents of the middle class could be used to depict the preferences of a much broader swath of society. His belief that Jews and Muslims generally exhibited shared economic behaviors has already been discussed, but his assumption that documents from the middle class could be used in his “sociographic” enterprise to describe the Jewish community as a whole is a distinctive idea that bears discussion here. For him, the middle class was the core of medieval Islamic society; indeed, he argued that it was the middle class that “developed Muslim religious law, the backbone and very essence of Islam.” 16 He also explained that religious scholars favored their own backgrounds as merchants in developing a theological and legal framework that privileged commerce and exchange. Thus, as Islamic law took shape in the centuries following the rise of Islam and even into the first century of ‘Abbāsid

The Geniza, Jewish Identity, and Medieval Islamic History

rule, merchants continued to rise in prominence and even took on the cultural ideals of the ruling class, which eventually drove “the public and the litterateurs” to attend to and perhaps even aspire to the ideals of the bourgeoisie.17 Goitein—and subsequently, Udovitch— saw this “bourgeois revolution” as shaping Jewish culture as well. Goitein wrote that “through it the Jews, who up to that time had been engaged mainly in agriculture and other manual occupations, were converted into a predominantly commercial people”; 18 Udovitch wrote that “the social and economic practices current in Muslim society from the eighth century onward paralleled those of the Cairene Jewish middle class of the eleventh and twelfth centuries.” 19 Goitein outlined the flow of these social and economic practices from the Muslim bourgeoisie to their Jewish counterparts: As the bourgeoisie rose, it had to adapt itself to the ways of life and cultural ideas of the ruling class, otherwise it would not have been “admitted” by it. . . . In his General History, Tabarī finds it worthwhile to record that the caliph al-Mahdī (775–85) was the first to use Tabaristan upholstery. . . . However, in the many marriage contracts, which have found their way into the Cairo Geniza from the 10th century onward, any well-to-do Jewish bride had Tabaristans in her trousseau.20

With the documentary evidence from the medieval Islamic world in limited supply, Goitein’s sociography carried this process in reverse: emerging from the Jewish middle class, he believed the Geniza documents to be typical of the Jewish community as a whole, and by extension, although A Mediterranean Society is by no means intended to be an account of the medieval Islamic world as a whole, Goitein clearly believed the commercial practices of Jewish merchants to have been shared by their Muslim brethren. Yet the detail brought to light in the preceding two chapters suggests some potential problems with the idea of Jewish “typicality” in the medieval Islamic world. Is it probable or even possible that the partnership structures seen in the Geniza documents are indeed typical of Muslim traders? The analysis of court practice in Chapter 3 suggests that Jewish merchants were educated as to Jewish commercial norms like those promulgated in the Mishneh Torah and its

201

202

The Geniza, Jewish Identity, and Medieval Islamic History

predecessors; was there a corresponding process through which those norms would have become familiar to Muslim traders? Wael Hallaq has indeed posited that “a complex dialectical relationship did exist between model shurūt works and legal documents in juridical practice.”21 This dialectical relationship calls to mind the discussion in that chapter revealing the connections between classical works of Jewish law and the documents that emerged from the Rabbanite court of Fustāt. Yet, if such a dialectical relationship did exist between Islamic legal formularies and legal documents in juridical practice, would the legal documents emerging from Muslim hands actually have reflected the norms seen in Jewish law? In short, the details from the Geniza documents suggest that Goitein’s typicality and Hallaq’s “dialectic” cannot sit together. In this chapter, I suggest that it is Goitein’s view of typicality that demands modification; having already hinted at the possible problems in using typicality to extrapolate the details seen in the Geniza documents from their Jewish writers to their Muslim associates, I now propose a model for an alternative typicality that provides a solution to the problem of convergence, intercultural contacts, and borrowing.

An Alternative Typicality If, as I have suggested over the course of the previous chapters, Goitein’s typicality is indeed untenable, where does this leave the historian of the medieval Islamic world? In light of Hallaq’s dialectic model, it would seem unlikely that Muslim merchants followed the models of commercial cooperation seen in the Geniza documents and in classical Jewish legal compendia, particularly where those models diverged from the ones laid out in classical Islamic legal compendia and formulary literature. How, then, can the Geniza be used to say something about the medieval Islamic world? If the details concerning Jewish life gleaned from the Geniza cannot serve as a direct proxy for an “Islamic Geniza,” then perhaps all the Geniza can do is offer details where documents refer explicitly to Muslims—as in the documents written by and/or for Muslims found in the Geniza and

The Geniza, Jewish Identity, and Medieval Islamic History

subsequently published by Geoffrey Khan in his collection Arabic Legal and Administrative Documents in the Cambridge Genizah Col­ lections. Yet it is difficult to accept that the Geniza could supply but precious few details about social and economic life in the medieval Islamic world as a whole, and even less about the manner in which daily life was structured, except in the rare cases where documents emerging from Muslim hands made their way into the Geniza by pure happenstance. I propose an alternative to the typicality used by Goitein and his successors, who have focused essentially on details assumed to be held in common between Jews and Muslims. This alternative typicality, which I call “specular-relational,” relies on structural relationships resident in the Jewish and Muslim communities and explores parallels in structure rather than in quotidian detail. The specular-relational model turns to the work of Rina Drory, whose study of Jewish-Islamic literary contacts also transcends earlier models that dealt with literary influence by “compar[ing], on the basis of certain similarities, simple and homogeneous units, or distinct topoi, etc., usually regardless of their literary and historical context.” 22 Indeed, the focus on commonality as manifest in the narrow details of practice typifies the historical (and at times philological) approach employed by Goitein and the Princeton School as a whole. In extrapolating detail from the Geniza documents to the Muslim community, scholars of the Princeton School actually remove these details from their distinctive Jewish and Islamic legal-literary contexts and rely exclusively on comparisons of these details. Like Drory, I reject attempts “to examine distinct, relatively homogeneous units, such as a single poem, a genre (wine, panegyrics), or isolate modes like metre, rhyme, imagery for discussion.” 23 In place of such comparisons, I propose dealing with larger social aggregates, just as Drory draws connections between medieval Arabic and Hebrew literatures by relying on theories “based on structuralist and functionalist thinking, which provide us with conceptual and theoretical frameworks to re-evaluate the contacts between the two literatures. In particular, the polysystem theory, and within it, the concept of interference of inter-cultural relations, have

203

204

The Geniza, Jewish Identity, and Medieval Islamic History

made possible new approaches to the contacts between Jewish and Arabic literatures.” 24 Drory’s more complicated (or, perhaps, more holistic) view of literary contacts turns to the total literary production of the communities she considers and replaces “the traditional, rather obscure concept of ‘influence’, which is rooted in Romanticist thinking,” 25 with a model that “makes it possible to see all the various texts as inter-related parts of a system rather than as separate aggregates of literature.” 26 Her inclusion of all sorts of tenth-century Jewish writings in her understanding of the Jewish literary system allows her to discover interconnections between genres, units, and cultures that have been ignored by traditional taxonomic models. For example, considering Moses Ibn Ezra’s work on poetics (that is, the Kitāb al-muĥādara wa-al-mudhākara), Drory writes that “confronting in Christian Spain a Jewish cultural atmosphere so different from that of Andalusia was what prompted Ibn Ezra to write this book. It caused him to examine his own cultural identity and formulate it in a way as to define it in opposition to the local Jewish one.” 27 Through her analysis of literary contacts in Andalusia and Christian Spain, Drory is able to explain why Ibn Ezra includes an extensive introduction to Arabic poetics beyond the historians’ or philologists’ understanding that it constituted a “defense of poetry . . . providing insight into the ambiguous position of Hebrew poetry”; 28 Drory illuminates the work as reacting to Ibn Ezra’s own “sense of isolation from his native culture and familiar milieu.”29 Despite the ease with which historical-philological models can be used in writing social history, some social historians have shifted away from comparing details when discussing “influence.” The fruitful results of this shift suggest the potential utility of the specularrelational model in understanding Jewish and Muslim life in medieval North Africa. One such example of a social history that turns to the deep structure of society rather than the simple comparison of details is Robert Bonfil’s analysis of Jewish life in Renaissance Italy.30 In a statement bearing an uncanny resemblance to Drory’s rejection of the “historical-philological approach,” Bonfil points out that “current historiography of the Jews of Italy during the period covered by

The Geniza, Jewish Identity, and Medieval Islamic History

this book is that represented by scholars who have devoted their professional skills and energies to archival and paleographic research.” 31 Bonfil rejects the overall approach of these scholars in favor of a model of cultural contacts he calls “specular reflection in the Other, by which I mean a reflection of oneself in the Other as in a mirror.” 32 This “specular reflection” envisioned by Bonfil—the source for the term specular-relational, which I have coined here—enables him to draw connections his predecessors might not have discovered, because Bonfil rejects the notion that interaction implies borrowing, in whole or in part; indeed, he writes that “the definition of cultural identity through comparison, indeed confrontation, with the identity of the Other always implies a dynamic moment of creation.” 33 The results of this creative confrontation are not necessarily predictable in their details, or at least not at the level of what we might call “attributes.” Yet the existence of that dynamic creativity is undeniable, and even identifiable. It is this dynamic creativity and the structural relationships in which this creativity manifests itself that the specularrelational model seeks to use in extrapolating from the documentary record of the Jewish community to the medieval Islamic world as a whole. At times, Geniza scholars have prefigured the central idea of the specular-relational model, and they have acknowledged that cultural confrontation implies more than borrowing. Indeed, Goitein entertained the possibility that the impact of Islamic law on Jewish law could have been manifest in a range of possible outcomes, from adoption to outright rejection.34 However, as I explained in Chapter 1, Goitein’s analysis of economic and social life ultimately saw the impact of the Islamic world on Jewish life as being solely one of accommodation and adjustment of “Islamic” norms. In order to use the Geniza documents as a source of Islamic social history, scholars of the Princeton School have relied on a model of intercultural borrowing manifest at the level of details rather than on a model generating a more creative interaction. In extrapolating from data found in the Geniza documents, the Princeton School has constrained the details of Islamic daily life to conform to those of the Jewish community. Sacrificing possibility for predictability, the constraint (or more properly, the assumption) of the

205

206

The Geniza, Jewish Identity, and Medieval Islamic History

Princeton School was very useful, yet the close examination of legal documents from the Geniza seen in great detail in Chapter 2 suggests that perhaps this assumption is no longer merited. Relaxing this assumption, the specular-relational model sees Jewish culture existing in tension with an Islamic cultural system, with Rabban­ite Jewish norms and practices developing at times in contradistinction with Islamic norms and practices instead of simply in parallel, permitting a modified model of cultural interaction to reveal a “discourse both between religions and within religions.” 35 The precise workings of the specular-relational model can be explained in further detail by reviewing Drory’s use of “polysystem theory,” a model for understanding literary contacts developed by Itamar EvenZohar in an important article in Poetics Today.36 Even-Zohar “offers a highly sophisticated conceptual framework for working with broad and heterogeneous bodies of literature” 37 that looks beyond individual texts or even corpora of texts in order to include broad ranges of literary activities (Drory actually refers to “all tenth century Jewish writings”)38 in its analysis. Attempting to describe the contours of the relationship between Jewish and Islamic literary production, Drory proposes the existence of a Jewish Literary System (“JLS”) that includes canonized literary works and models at its center—the traditional Rabbanite genres of halakhic literature, including Talmud, midrash, piyyut, and esoteric writings—and noncanonical material on its “periphery,” including (inter alia) biblical commentaries, sifrei misvot, and polemical literature. Relying on the essential opposition between canonical and noncanonical literary forms for her analysis of literary systems, Drory turns to Even-Zohar’s claim that The tensions between canonized and non-canonized culture are uni­versal. They are present in every human culture, because a non-­ stratified human society simply does not exist, not even in Utopia. There is no un-stratified language upon earth, even if the dominant ideology governing the norms of the system does not allow for an explicit consideration of any other than the canonized strata. The same holds true for the structure of society and everything involved in that complex phenomenon.39

The Geniza, Jewish Identity, and Medieval Islamic History

In structuring her hierarchical model for the JLS, Drory places Rab­ ban­ite and Karaite literature alike under the aegis of a single Jewish “polysystem.” Explaining that Rabbanite culture viewed its own ­models as canonized and Karaite models as noncanonized—placing both under the frame of the JLS—she proceeds to study the rela­ tionship between canonized and noncanonized literary forms within the JLS. The specular-relational model applies Drory’s polysystem model to the Rabbanite community within the medieval Islamic world, an application prefigured by Even-Zohar’s statement that hierarchy and canonicity are universal. Focusing on structural relationships within a broad social system rather than on details or “attributes,” Drory writes: Within the Rabbanite system, writings and other activities connected with the Oral Law were at the pinnacle of the hierarchy, with the Bible and literary activities connected with it relegated to a lower position. In contrast, the hierarchy was reversed in the Karaite system at the margins of the JLS, with the Bible taking top place. Here a new repertoire of literary genres was developed around the Bible and replaced the traditional repertoire based on the Oral Law.40

The central piece of each system’s hierarchy included its canonical texts and the materials that clustered around these texts, but the periphery of each system included other texts and literary models to which the Rabbanite community was exposed. In Drory’s analysis, these other literary models came from Arabic culture, often mediated through the Karaite community.41 Yet I would include in the specular-relational model’s Rabbanite Literary System not only the Karaite texts Drory discusses but also Islamic texts with which members of the Rabbanite community would have been familiar. Canonized Ra­bbanite texts (particularly including rabbinic literature) would be at the center of the Rabbanite Literary System, whereas those texts and practices recognizably outside the bounds of that canonized corpus of texts would be on the periphery of the system. This would include not only the Karaite materials discussed by Drory but also those emerged from outside the realm of identifiably “Jewish” texts, that is to say,

207

208

The Geniza, Jewish Identity, and Medieval Islamic History

“Islamic” texts and practices known to members of the Rabbanite community.42 Correspondingly, the specular-relational model’s Islamic Literary System includes at its center classical works of Islamic law, with the (heretofore largely non-extant) production of Muslim scribes farther out toward the periphery, and with the Arabic formulary literature occupying a mediating role. There may also have been situated on the periphery of the Islamic Literary System practices (perhaps emerging from shared contact in the marketplace) and even texts from the Jewish or Coptic milieux with which the Muslim community would have been familiar; if so, these would have exercised some sort of gravitational attraction on Muslim practice as well. However, the difficulty of adducing such contacts, the fact that Jewish materials were often composed in Judeo-Arabic (a language illegible and hence unintelligible even to literate Muslims unless spoken or read aloud), and the likelihood that the relative magnitude of such a gravitational attraction would have been small all suggest that the impact of Jewish texts or practices on their Islamic counterparts can, for the moment, be overlooked. In contrast, the identifiably “Islamic” nature of Islamic texts would consign such materials to the periphery of the Rabbanite Literary System—though their presence on that periphery would likely have been important and certainly cannot be gainsaid. Thus, although the corpora making up the Rabbanite Literary System and the Islamic Literary System substantially overlap with one another, materials in the center of one (that is, the Islamic Literary System) are on the periphery of the other (that is, the Rabbanite Literary System). In the Rabbanite Literary System, talmudic and geonic legal sources occupy a place of primacy, which is correspondingly occupied in the Islamic Literary System by Islamic legal works. Likewise, Islamic court records sit in tension with these canonical legal works, with Islamic formularies occupying a mediating role between the two. As suggested by the details brought to light in Chapters 2 and 3, the Rabbanite Literary System also reveals structures and tensions between canonized center and periphery. Yet on the periphery of the Rabbanite system also sits a constellation of Islamic texts and documents that themselves demand a response from those texts at

The Geniza, Jewish Identity, and Medieval Islamic History

the center of the Rabbanite system. These Islamic sources were recognizably located on the periphery of the Rabbanite Literary System because they did not engage rabbinic literature. Nevertheless, the community of Rabbanite Jews would have been aware of these sources and forced to engage those sources on some level, since they were part and parcel of the intellectual life of the medieval Islamic world in which and of which those Jews found themselves. The Islamic sources on the periphery of the Rabbanite Literary System would certainly have had an influence on the other elements of that system, but that influence need not have been manifest in specific details of Islamic practice wending their way into Jewish life. Instead of typicality being viewed at the level of details, the parallel structure of the Rabbanite and Islamic Literary Systems and the effect of the latter having been situated on the periphery of the former suggests that the Rabbanite Literary System may have been affected by the deep structure of interrelationships within the Islamic Literary System. That is to say, the interrelationship understood by Hallaq to have existed between narrative works of fiqh and the documents that would have emerged from the hands of Muslim scribes may itself have influenced how scribes in the Rabbanite court looked to rabbinic legal compendia more than any of the details to be found in “Islamic”/Arabic legal documents themselves. This, then, suggests an alternative to the typicality assumed by previous historians and philologists, a typicality described by interrelationships between elements of two literary systems rather than the details found in either system. For instance, as noted in Chapter 2, Maimonides mentions in Mishneh Torah Hilkhot Sheluĥin ve-Shutafin that local custom is to be followed when individuals engage in partnerships,43 suggesting an openness to practices differing from those norms that he promulgates in the Mishneh Torah. Yet the common Jewish adherence to ‘isqaforms rather than commenda-forms and the focus on personal responsibility so implied, described in depth in Chapters 2 and 3, suggest a trope resonating throughout Jewish society in medieval Egypt and a corresponding choice affirming Jewish identity in contradistinction to widely known norms of Islamic law. The specular-relational model would conjecture that Muslim merchants often correspondingly

209

210

The Geniza, Jewish Identity, and Medieval Islamic History

honored the norms of Islamic law concerning the Islamic commenda, part and parcel of an Islamic cultural system that viewed personal economic responsibility differently from its Jewish counterpart. Such a suggestion is not entirely new. Geniza scholars who understood typicality to obtain at the level of details seem also to have perceived it at the level of the interrelationship of canonical texts and practice; in this vein, Cohen writes concerning Jewish practice of charity in medieval Egypt, that “the Jews took their religious duty utterly seriously. That the same was true of their Muslim neighbors rendered their commitment all the more poignant.” 44 Yet the humanistic desires of these scholars constrained the outcomes of their model, so that they did focus on details. Indeed, the Princeton School seems to have understood that social integration or embeddedness implied these shared details of daily behavior. Explaining why the level of anti-Jewish violence in the medieval period was often lower in Islamic lands than in Christian Europe, Cohen describes a “paradigm” that turns to (among other things) “the extent of economic diversification, the degree of social integration, and the presence or absence of pluralism in the surrounding society.”45 Although Cohen seems to think that social integration leads to the adoption of common behaviors, it is equally possible that a sense of embeddedness and security would have led Jews to manifest their behavior in ways that expressed their distinctiveness. The specular-relational model acknowledges that embeddedness can actually lead to radically different patterns of behavior even in the context of shared “mental structures”—of which Bonfil’s work is reminiscent: We are not faced with a reduction of the gap between two different religious conceptions, or between two different social groups, but with a natural communality of mental structures shared by people living in the same historical context, structures that, when they operated within the specifically Jewish sociocultural space, led to results whose Jewish contours were very clearly defined.46

For example, in his study of renaissance Italy, Bonfil demonstrates how the “abstract model of learning and . . . the model of the mediating role of the man of religion in the ideal functioning of society” led the

The Geniza, Jewish Identity, and Medieval Islamic History

rabbinic figure David b. Messer Leon47 to “unite[] Talmudic learning not only with Kabbalistic learning but also with the learning of the university. And he translated this concept into practice in the formulas of the diplomas granted to the rabbis he ordained.”48 Bonfil suggests that the communality of mental structures led the Jewish community to “‘Judaizing’ anything and everything that seemed worthy of being presented within a Jewish context.”49 The specular-relational model can even explain the incomplete transfer of ideas and linguistic terms from a dominant group to a highly embedded subgroup. Indeed, Arabic terms emanating from the Islamic Literary system, sitting on the periphery of the Rabbanite Literary System, may well have been incorporated into the parlance and practice of Jewish merchants in ways that reflect, refract, and (at times) reject their understanding in Islamic law. Terms known from Islamic law such as qirād (Islamic investment partnership or commenda) that appear in Jewish legal documents need not be understood, as they have been by exemplars of the Princeton School, to refer to an economic relationship corresponding perfectly to that described by the same term in Sarakhsī’s Mabsūt, nor any other compendium of Islamic law. Indeed, the evidence from the legal documents of the Geniza would suggest that this was not the case, but rather that the term qirād was often used in Jewish documents even to describe partnerships that better fit the model of the talmudic ‘isqa. It is this sort of careful reading of legal terms in Geniza documents that led Mordechai Friedman to note concerning Rabbanite marital practice that “the Hebrew terms muqdam and me’uĥar are likely to have been based on the Arabic terminology used by Islamic law,” 50 alongside his very conclusion that the correspondence between these two institutions was not complete. Notwithstanding Goitein’s attestation that “the Arabic language used by the Jews was not a particular Jewish dialect,”51 the model suggested by this chapter would view loanwords as but one manifestation of a complex relational system. This model demands that scholars understand the Judeo-Arabic of the Geniza documents to approximate rather than replicate that of the contemporary vernacular. The possibility of “Judaized” elements within this language must therefore be taken seriously.

211

212

The Geniza, Jewish Identity, and Medieval Islamic History

Yet the elements at the periphery of the Rabbanite Literary System would nonetheless have had an attractive force that could lead Jewish practice to diverge from these classical texts, and the partnership relations described by the documents of the Geniza should be seen as manifestations of this tension. Thus, TS K 25.153 Verso (10*) describes an investment partnership in which the investor forgives the active partners from liability due to acts of God, despite the fact that Jewish legal sources hold the active partners liable for such acts.52 It is difficult to escape the conclusion that classical Islamic sources, which hold the active partner blameless, had some role in influencing the partners to structure their relationship in this manner. Yet if Arabic loanwords are but imperfectly brought into JudeoArabic, and mercantile practices are no longer assumed simply to carry over from one community to the other, how can the researcher extrapolate from the Geniza documents to the Islamic world as a whole? Here it is useful to turn to Bonfil’s point that despite clearly defined intercommunal boundaries, the Jews of Renaissance Italy shared greatly in a “communality of mental structures.” If we place the Islamic Literary System at the periphery of the Rabbanite Literary System, we can see a corresponding communality of mental structures emerging in the medieval Islamic world from the dialogue between center and periphery within the Rabbanite Literary System. That is to say, the affinity between classical Jewish legal texts and the legal documents of the Geniza may well reflect a corresponding affinity between Islamic legal texts and the (heretofore largely non-extant) documents of Muslim scribes. It is here, then, at the level of the “communality of mental structures”—or, to use a more convenient term, the mentalité—that a new assumption can be introduced, no less speculative than Goitein’s yet freed from its attachment to detail which evidence from the legal documents of the Geniza has demonstrated to be problematic. In light of the findings in this book that Jewish practice generally approached Jewish legal norms, Goitein’s assumption may be replaced with a tentative conclusion that Islamic practice approached Islamic legal norms. This understanding emerges naturally from the model of a Rabbinic Literary System and an Islamic Literary System consisting of sources

The Geniza, Jewish Identity, and Medieval Islamic History

in tension with one another, and the importance of the center and the periphery in describing this tension; thus, the dynamic relationship between Jewish legal sources and Jewish practice is the manifestation of a mentalité of the larger Islamic cultural system of which the Jewish community is a part. The model’s name, specular-relational, points to the relations of elements within complicated literary systems, and to “specular” contacts (that is to say, reflected through a lens) between elements in these literary systems, rather than the assumption of a commonality of detail on the level of practice. The specular-relational model functions at a higher level of abstraction than its predecessor, and the assumption of a common mentalité allows the historian of the medieval Islamic world to extrapolate from the relationship of elements within the Jewish cultural systems to the broader Islamic cultural system. This frees the model from the possible problem of different specific “contours” or behaviors within the Jewish and Islamic communities.53 In this, the model’s assumption simply applies the adage mentioned by Goitein that “al-nās bi-azmānihim ashbah minhum bi-aslāfihim,” which I discussed in Chapter 1; yet the model refrains from applying this assumption in a manner the documentary evidence has shown to be problematic. Typicality, then, can be understood as obtaining at the level of relationships between elements of each group’s literary system. Even though specific behaviors would differ from one group to another, embedded subgroups are affected by the mentalité of the world around them.

The Benefits and Limitations of this Alternative Typicality Perhaps the most compelling aspect of the specular-relational model is its additional explanatory power; the complexity of the model allows it to be applied to multiple domains. Although the Princeton School’s working assumption facilitated scholars’ extrapolating from the Geniza documents to the broader Islamic world in the area of commercial practice, the specular-relational model can find points of connection in the very areas that Goitein and his methodological successors seem to have set aside as distinctive to Jews or Muslims.

213

214

The Geniza, Jewish Identity, and Medieval Islamic History

That is to say, whereas scholars of the Princeton School restricted their assumption of common practice (and hence their ability to extrapolate from data found in the Geniza documents to the Islamic world as a whole) to areas that bore “no religious or ethical value,” the Rabbanite Literary System as discussed here concerns a much broader range of behaviors, and analysis of relationships within this system does not demand any such qualification or limitation.54 For example, then, the Jewish practice seen in the Geniza of dividing marital payments in two, in direct opposition to the classical Jewish legal sources, can be seen as actually paralleling the Muslim development of multiple marital payments, in opposition to the classical Islamic legal sources.55 In both cases, a dialectic can be found with each system’s own canonized sources. Indeed, the use of Aramaic words and phrases to describe these payments emphasizes this dialectic between the Jewish community’s marital practices and canonical Jewish legal sources.56 The result reveals a Jewish practice approximating only partially the Muslim practice,57 but fully reflecting the hierarchical relationship between classical texts and practice seen in the Islamic community. Therefore, as mentioned, the complex relational system outlined in this chapter should influence the reading of all Islamic legal terms, if not all Arabic words in general, in their Judeo-Arabic guise.58 For instance, where the letter TS Arabic Box 30.255 refers to one partner’s request to “Take the wool as a commenda,” 59 the writer explains that he refused to do so because “I have sworn that I shall not enter into any agreement with anyone in the world unless he makes a legally binding declaration that I am trustworthy and that I am free from any responsibility.”60 The writer’s hesitation suggests that, at least some of the time, the active partner in a commenda bore such responsibility, contrary to the force of this term in Islamic law. Bernard Jackson’s statement that “influences in form are often easier to detect than influences in substance, but they may also be of little real significance” 61 does not specifically refer to the co-opting of legal terms from one language to another as loan words, yet it does point to the fact that Islamic legal terms seen in Judeo-Arabic cannot necessarily be treated as synonymous with their Arabic source words. Thus, even the venture of composing a

The Geniza, Jewish Identity, and Medieval Islamic History

dictionary of Judeo-Arabic is best realized through citations of JudeoArabic texts rather than simply providing definitions of Arabic words that have found their way into Judeo-Arabic.62 Even so, in reflecting on the detail from Geniza documents in order to reveal Jewish partnership practice, the possibility must be acknowledged that the language of the legal documents represents nothing more than an ossified scribal practice that did not reflect the true expectations of partners. Notwithstanding Udovitch’s aforementioned claim that no “Heisenberg effect” distorts the language of the Geniza documents, one must acknowledge that formulae emerging from the court may produce their own sort of “fiction in the archives.” Indeed, although Joseph Rivlin claims that Jewish law did not brook meaningless, obsolete, or otiose documentary formulae,63 even the Talmud (Talmud Bavli Ketubbot 87b) alludes to a marriage document that is not taken literally but is instead adjudicated on the basis of “an arrangement of mutual trust” between the partners. For better or worse, though, court records do provide the most detailed information available to the researcher at present as to how mercantile partnerships were established, maintained, and adjudicated. Traders’ letters alluding to partnerships generally do not provide sufficient detail concerning economic relationships (such as the distribution of profits and losses) to challenge the detailed analysis of documents I have provided in Chapter 2, which relies first and foremost on agreements canonized by means of legal formulae. It also seems unlikely that any alternative documentary or even archaeological source will ever present itself that includes the sort of detail found in the legal documents. Furthermore, even though it is possible that the details of legal formulae that made their way into the Geniza documents were not followed to the letter, absolute and “literal” fealty to the law is not necessary to establish that the language of law is an invaluable indicator of social values.64 The documents can certainly be seen, then, as the best indicator of the forms actually taken by Jewish commercial activity; correspondingly, the specular-relational model makes it possible to extrapolate from the relationships within the Rabbanite Literary System in order to describe the shape Muslim commercial activity may have taken.

215

216

The Geniza, Jewish Identity, and Medieval Islamic History

The primary limitation of the specular-relational model is that it relies heavily on edited literary sources in order to ascribe behavior to the Muslim community for which limited documentary sources have been uncovered, though the model does turn to documentary sources where they are available to confirm its predictions. However, in the absence of such documentary sources, the predictions of the model may seem unfalsifiable, irreproducible, and anecdotal. My characterization of the Rabbanite Literary System holds that every element in the system responds to the other elements, yet the model cannot extrapolate to the Islamic Literary System to speculate as to the ­specific form that a response will take. Relaxing the Princeton School’s assumption of common behaviors awakens the possibility that ­embeddedness gave Jews the security to respond to their Muslim neighbors’ behavior with rejection rather than acceptance. Jewish reactions to the pressures of their environment may well have varied from domain to domain. Therefore, in extrapolating from the relationship seen in the Rabbanite Literary System between Jewish texts and Jewish practice to the Islamic Literary System under the assumption of a common mentalité, the model can predict only the proximity of the elements of the Islamic Literary System to each other, not how they diverge. Where Jewish texts and practices seem to reflect one another closely, the specular-relational model would postulate a similar closeness be­ tween classical Islamic texts and Islamic practice; where Jewish practices reveal great distance between Jewish texts and practices, the specular-relational model would predict a similar distance in the Islamic Literary System. However, the specular-relational model cannot predict the specific behavioral manner in which that distance would manifest itself in the Islamic Literary System. For instance, the appearance among the Geniza documents of an agreement renegotiating a failed business partnership into a loan at interest (BM Or 10126.6, a document featuring prominently in Chapter 3) suggests that adherence of Jewish merchants to the well-known rabbinic prohibition of such loans was less than complete. Extrapolating from this, the specular-relational model would suggest only that Muslim merchants might have occasionally diverged from classical Islamic commercial

The Geniza, Jewish Identity, and Medieval Islamic History

law, not that Muslim merchants would also have contracted loans at interest (though it would not rule out this possibility). Yet even in light of this limitation, the specular-relational model is to be preferred to the regnant alternative; indeed, it would seem that the predictions that the model generates are much more reasonable than those suggested by the Princeton School’s model. Once again, review of the data in the documents described in Chapter 2 could lead to the conclusion that Islamic partnership practice was shaped by classical Jewish legal codes to the exclusion of canonical Islamic legal texts. Yet the operating assumption of the specular-relational model, namely that Muslim practice related to the canonical elements of the Islamic system in a manner parallel to that with which Jewish practice related to the canonical elements of the Jewish system, produces predictions that account for Hallaq’s understanding that fiqh works (particularly in those areas for which there is a corresponding shurūt literature) are eminently engaged in a dialogue with daily life and are not just an intellectual exercise composed by a scholarly elite entirely divorced from quotidian reality. Furthermore, the holistic nature of the specular-relational model allows the model’s predictions to extend to multiple domains. Al­t hough the Princeton School applied its working assumption only to narrow bands of human activity (such as commercial life, but not ritual life), the specular-relational model understands commercial life as an area in which the largely self-governing Rabbanite population could have turned to its own legal formulations no less than in ritual life, and placing the Islamic Literary System on the periphery of the Rabbanite Literary System would suggest that both commercial life and ritual life within the Rabbanite community were influenced by their Islamic counterparts. Indeed, Goitein’s may be seen as prefiguring this idea; his “Jewish addict to Sufism”65 might be seen as an aberration under the Princeton School’s model, but he would be part and parcel of the specular-relational model’s dataset. By avoiding the comparison of specific details and behavioral ­attributes between cultures in favor of comparing relationships between each culture’s own canonized texts and the elements that sit in tension with those texts, the specular-relational model reduces

217

218

The Geniza, Jewish Identity, and Medieval Islamic History

the likelihood of error in extrapolating from the Rabbanite Literary System to the Islamic Literary System. Rather than viewing behavioral details in a vacuum, the specular-relational model views them in ­context. This suggests in the domain of social history a process outlined by Clifford Geertz in recommending the researcher to ­ “look for ­systemic r­elationships among diverse phenomena, not for ­substantive ­identities among similar ones.” 66 Finding a systemic relationship between law and practice in the Rabbanite community, perhaps even across domains, the model projects a corresponding relationship in the Islamic community. Of course, only the documentary evidence from the medieval Islamic world can confirm the predictions of the model.

A Legal Mentalité: The Documentary Evidence The sporadic discovery of medieval Arabic documents emerging from Islamic hands makes it possible to verify (or falsify!) the specular-relational model’s predictions of a common “legal mentalité” within the Jewish and Islamic communities of medieval Egypt, finding form in commercial documents whose concerns and details reflect somewhat closely those of classical Jewish and Islamic legal materials (respectively). Yet, correspondingly, as illuminated by Hallaq and demonstrated by a number of important studies (many of which preceded his research), it is widely recognized that the ‘ilm al-shurūt (formulary) literature itself was influenced by scribal practice.67 Jeanette Wakin’s important 1972 study of Taĥāwī’s formulary includes in its introduction further discussion of “how a foreign institution was taken over intact, assimilated, and reinterpreted in an Islamic context.” 68 Wakin outlines this process: It is now well established that Islamic law came into being as an idealistic system, independent of current legal practice and sometimes even opposed to it. . . . But in many legal spheres, the realities of everyday life were too compelling to permit conformity to these standards. This was particularly true in commercial law, where the demands of an urban and increasingly complex society placed a further strain on doctrine. Eventually the scholars, eager to maintain the inviolability of

The Geniza, Jewish Identity, and Medieval Islamic History

the Sharī‘a, found ways to assimilate the practice when they could, and to accommodate it by realistic means when they could not.69

The previous chapters not only revealed a correspondence between Jewish practice (proxied by Geniza documents) and classical Jewish legal literature but also described the process by which Jewish counterparties were informed as to the models of commercial cooperation as they appear in that classical Jewish legal literature. Yet the specular-relational model makes more limited claims concerning Islamic practice, projecting only that the general if imperfect correspondence between Jewish legal documents and classical Jewish legal literature is the product of a broader (Islamic) environment that also maintained a general if imperfect correspondence between its legal documents and its classical legal literature (in which case, the classical legal literature can be used as a general proxy for those documents not currently extant).70 Indeed, the fluidity of Islamic law in its formative stages noted by Wakin might suggest this correspondence even without the evidence of the Geniza documents and the projections of the specularrelational model. Yet in his analysis of four documents written on papyrus from the Austrian National Library, Michael Thung highlights disjunctions between adhkār ĥuqūq (“written obligations”) and the narrative works of Islamic law during the formative stages of the ‘ilm al-shurūt (“notarial science”) literature, though he also points out that Taĥāwī and his predecessors “contributed to the process of adapting established legal conventions to the precepts of Islamic law, an ongoing process that is reflected in early legal documents.” 71 As the ‘ilm al-shurūt literature matured, so did a class of “shurūtī” experts who (according to Hallaq) “determined which document was consonant with the dictates of the shar‘ and which was not.”72 It is perhaps unsurprising, then, that a number of studies of small collections of fourteenth-century Mamlūk legal materials have found documents that “significantly conformed, in all essential features, to the prescriptions of model works,” 73 since these documents were written well after the emergence of shurūtīs as a class. Gladys Frantz-Murphy points out substantial areas of overlap between the ‘ilm al-shurūt literature, but she also explains that Arabic contracts often reflect aspects of Greek or Coptic documents as well.74

219

220

The Geniza, Jewish Identity, and Medieval Islamic History

Indeed, this sort of general adherence to the structures of Islamic law, with episodic divergences, is precisely the sort of behavior suggested by the specular-relational model, which found a general but imperfect harmony between the legal documents from the Geniza and the models of mercantile cooperation seen in classical Jewish legal sources. Yūsuf Rāghib devotes nearly an entire volume of his Actes de vente d’esclaves et d’animaux d’Égypte médiévale to discussing the legal characteristics of a corpus of documents spanning the ninth to thirteenth centuries and highlighting points of contact with the narrative works of Islamic law and responsa alike. Unfortunately, however, many of the documents discussed by Frantz-Murphy and Rāghib predate the Geniza documents, and the Mamlūk documents discussed by Donald Little and Huda Lutfi postdate them.75 Yet the discovery in 1982 of a cache of thirteenth-century documents in the Red Sea port of Qusayr/Quseir al-Qadīm brought to light materials contemporaneous with the “classical period” of the Cairo Geniza. As I mentioned in Chapter 1, Mark Cohen believed that documents on paper and papyrus confirmed the working assumption of the Princeton School. Indeed, Cohen noted in his work on poverty and charity that the tiny handful of letters from or on behalf of needy persons thus far discovered among the Arabic papyri from Egypt and among the so-called archive (probably an Islamic Geniza) of a thirteenth-century Muslim merchant from the Red Sea port of Quseir al-Qadīm bear significant similarities to the Judaeo-Arabic letters from the Geniza.76

However, although a brief examination of the so-called Quseir al-Qadīm documents reveals that the writers of the Geniza documents may have shared some of the details of epistolary practice with their Muslim counterparts, it is difficult if not impossible to adduce any such shared details in mercantile practice. In transcribing and translating texts from the “Sheikh’s house” at Quseir al-Qadīm, Li Guo points out the extreme difficulty inherent in turning to letters to discover the commercial structures used by merchants: “Insofar as the documents, as records of real trade practice, do not always bear the same technical terms as stipulated and described in legal writings, we

The Geniza, Jewish Identity, and Medieval Islamic History

can only approach the issue through speculative reading of the available textual testimony.”77 As I have explained, one key detail differentiating Islamic and Jewish partnership structures is profit-and-loss sharing. Yet even in the absence of such detail, Guo concludes concerning a particular document that “all the practical aspects, and facts, revealed in the documents do indeed point to the features of the commenda partnership.”78 Guo sees the commenda in letters using terms such as ‘idlī (“my share”).79 Yet his reading highlights the difficulty inherent in relying on letters instead of legal documents when studying the organization of commerce; ‘idlī is a term better suited to an ordinary partnership, for which both partners maintain an ownership stake in the capital, than a commenda, for which the active partner (according to Islamic law, at least) maintains no ownership stake. The absence of actual partnership agreements in the collection published by Guo and the paucity of documents concerning partnerships among the Vienna documents published by Werner Diem suggest that confirming the predictions of the specular-relational model may continue to be difficult.80 On the other hand, the specular-relational model’s predictions fit well with the details that are available in the Quseir documents: to the extent that they can be determined, the structures of commercial partnership employed by Muslim merchants and reflected in the Quseir fragments may well generally have been those seen in the classical works of Islamic law.81 It would seem, then, that the scarcity of documentary sources emerging from the hands of Muslims in the medieval Islamic world and the corresponding wealth of the Geniza demands a proposed solution to the problem of “convergence.” Even though the Princeton School seems to have offered a solution, the foregoing material in this book suggests that this solution is no longer tenable. In its place, I have proposed an alternative in this chapter that accounts for a much broader range of Jewish and Islamic literary sources—a model acknowledging the social tensions these literary sources might create. The model’s predictions also seem to accord generally with the documentary evidence, and so it would appear that the problem of “convergence” may be viewed constructively through the lens of Jewish

221

222

The Geniza, Jewish Identity, and Medieval Islamic History

and Islamic law, seeing the common mentalité of the responsiveness of daily life to communal law (and communal law’s corresponding responsiveness to daily life) as essential to using the Geniza documents as a tool for understanding the history of the medieval Islamic world as a whole.

Applying the Specular-Relational Model Beyond Commerce The specular-relational model has been used here to project quotidian life in the Islamic marketplace, an arena in which actual commercial records are few, but nonetheless extant and capable of evaluating the general effectiveness of the model. Yet one of the suggested advantages of this model is that it can be applied more holistically than the working assumption of the Princeton School, which circumscribed those areas in which it assumed a commonality of practice. Hallaq pointed out the importance of scribes and formularies in connecting narrative works of fiqh with legal documents in juridical practice; as I mentioned above, there is some evidence that actual written obligations diverged from early models, but their paths converged over time as ‘ilm al-shurūt developed. Yet Hallaq also sees a close relationship between the composition of fatāwā (legal responsa) and the development of substantive law.82 He dates the blossoming of muftīs (jurisconsults) from the late first Islamic century, suggesting that even in the absence of documentary evidence Islamic law should not be seen as a theoretical “jurists’ law” divorced from quotidian life or historical reality from its earliest stages. Thus Hallaq has proposed a model for connecting classical texts and practice in the medieval Islamic world, which might be applied in all those areas where legal respondents reply to inquiries emerging from daily life. In contrast, the specular-relational model suggests that where the dynamic visible in Geniza documents reveals the daily life of the Jewish community to have diverged significantly from its classical texts, a similar divergence may have existed among Muslims as well. For instance, popular disregard for rabbinic proscriptions against

The Geniza, Jewish Identity, and Medieval Islamic History

magic (documented in the Geniza) was likely paralleled in the Muslim community. However, the language or even the imagery of popular Muslim magic need not necessarily have been the same as that seen in the Geniza documents—although, of course, the specular-relational model supports the possibility that it might. But what about areas of life that the Princeton School understood to be guided by distinctive religious or communal identity, for which even the Princeton School would reject the very idea of common practice? How can the specular-relational model use information concerning distinctive “religious” practice as a tool for understanding medieval Islamic life? Liturgical practice can be cited as an example of the usefulness of the specular-relational model for this purpose, since liturgical practice is certainly understood by social historians to have been an area described by “religious bounds.” The early thirteenth century saw the nagid Abraham b. Moses Maimonides attempt to implement “ascetic” or “pietist” reforms in synagogue worship. As Goitein points out, these reforms were roundly rejected by the community at large.83 The popular response could be read as a rejection of asceticism, but also as a specular reassertion of identity in the face of reforms that would chip away at the Rabbanite community’s sense of self-differentiation. The specular-relational model would read Abraham Maimonides’ actions as suggesting the presence of a corresponding peripheral ascetic movement in the Muslim community. It would also suggest that the details of that peripheral ascetic practice likely differed from those Abraham attempted to bring to the Rabbanite synagogue—not least because the changes Abraham wished to implement were already prevalent in the mosque! Despite this, the relationship between center and periphery, canonical text and daily life, can be seen as parallel in the Rabbanite and Islamic orbits. The specular-relational model places classical Rabbanite sources at the center of the Rabbanite Literary System and their Islamic counterparts at the center of the Islamic Literary System, with scribes and legal respondents understood to have played a mediating role between text and practice in Egypt in the Fātimid and Ayyūbid periods. The breadth of this model across domains suggests its attractiveness. However, the usefulness of the model is predicated on structural

223

224

The Geniza, Jewish Identity, and Medieval Islamic History

similarities in Jewish and Islamic societies; where “literary” systems do not share a common structure, the model cannot be applied. It is important to acknowledge, then, that the distinctive historical circumstances of a stratum of Jews using Jewish courts (in the case of the documents discussed in this book, specifically Rabbanite courts) and Muslims using Islamic courts is relevant to the application of this model. Thus those Jews who never came to the Rabbanite court may well have initiated and maintained their partnerships relying primarily on the structures seen in Islamic legal codes, or they might have done so relying primarily on the structures seen in Jewish legal codes (like their brethren whose legal documents are found in the Geniza), or they might have had still another set of norms according to which they structured their mercantile relationships. Without the documentary record of their economic relationships, one cannot predict the details of how these “peripheral” individuals might have cooperated. However, Chapters 2 and 3 reveal that those merchants who did come to the Rabbanite court were educated as to rabbinic norms concerning commercial practice; and the agreements that emerged from that court substantially reflect those norms. The model I have proposed in this chapter understands the relationship between Jewish texts and practice revealed by the Geniza data to be typical of the Islamic environment in which the Jews found themselves, suggesting that the commercial practice of Muslims would correspondingly have reflected classical works of Islamic law. Where the theory and practice of commerce is concerned, the specular-relational model would explain that common Jewish adherence to Rabbanite legal norms may depict a shared mentalité with Muslims who adhered to Islamic legal norms. Yet what is most striking about this result is that it accords with Udovitch’s own conclusions as an exponent of the Princeton School that Ĥanaf ī commercial law was a medieval Islamic “Law Merchant”—even if its role as such may have been generally restricted to Muslim traders. However, the process that led to this conclusion using the specular-relational model revisits Jewish typicality in the medieval Islamic world in a manner that accords better with the data from the Geniza as presently understood;

The Geniza, Jewish Identity, and Medieval Islamic History

and it relies on a model that looks to the deep structure of society rather than isolated and perhaps minor details of practice.

Conclusion The Geniza documents remain a nearly unique find not only because of the sheer quantity of documentary evidence they provide but also because they are particularly rich in evidence concerning the daily life of strata of society often absent from the official documents that remain from the Fātimid empire.84 But for those documents that did not find their way fortuitously from Muslim hands into the Geniza, it is not entirely clear that the behavior portrayed therein can be taken as descriptive of a community from which the documents themselves did not in fact emerge. To date, many scholars using the Geniza documents for this purpose either acknowledged this problem and trod somewhat gingerly, drawing very limited conclusions, or simply accepted the commonality of practice between Jews and Muslims as axiomatic in the absence or near-absence of corroborating documentary evidence in Arabic. The attractiveness of this assumption, a pillar of the Princeton School discussed in Chapter 1, was both its simplicity and the breadth of domains in which it could be applied. Where the practice of Jewish merchants as viewed in the Geniza documents was discovered to correspond to the norms for mercantile practice described in classical Islamic legal sources, Udovitch used this correspondence to bolster the claim that Islamic legal sources were indeed descriptive of daily life, parrying the claims of the Skeptical Approach to the study of Islamic law. But the legal documents brought to light by this book have revealed a stratum of Jewish partnership practice that seems to have diverged from the descriptions of commercial law found in classical Islamic legal codes. Assuming that the documents were themselves descriptive of Jewish practice, this evidence challenges either the conclusion that Islamic legal codes were descriptive of Islamic practice or the assumption of commonality of practice between Jews and Muslims.

225

226

The Geniza, Jewish Identity, and Medieval Islamic History

Opting to take on the Princeton School’s assumption of a commonality of practice, I proposed an alternative solution to the problem of convergence in this chapter with the specular-relational model. Making recourse to the work of Even-Zohar and Bonfil, this solution turns to an understood “communality of mental structures shared by people living in the same historical context” 85 to propose that Jewish and Muslim merchants both responded to their own subculture’s canonical texts in a similar way. Finding the Geniza documents to reflect the norms found in Jewish law, the alternative specular-relational model suggests that a similar continuity existed between the classical works of Islamic law and the practice of Muslim merchants in the Fātimid milieu. The specular-relational model represents a sea change in the study of Geniza documents away from the commonalities in language and attributes that may simply have been matters of form, in favor of the complex social forces that make up the interrelationship and the internal identities of an Islamic host culture and a Jewish culture functioning both with and within that host culture.

Reference Matter

Appendix Fifteen Legal Documents Concerning Partnership

List of Geniza Documents Agency Agreements—Document 1: ENA NS 50.32 Agency Agreements—Document 2: TS NS J 11 Partnership Agreements—Document 3: Mosseri VII 17 Partnership Agreements—Document 4: Bodl Ms Heb e 98.63, Left Upper Corner Partnership Agreements—Document 5: ENA NS 17.35 Partnership Agreements—Document 6: INA D 55.8 Partnership Agreements—Document 7: TS 8 J 32.3 Commenda Agreements—Document 8: Bodl Ms Heb b 11.2 Commenda Agreements—Document 9: Firkovitch II 1700 12 a II Commenda Agreements—Document 10: TS K 25.153 Verso Release Documents—Document 11: ENA NS 1.90 Release Documents—Documents 12a and 12b: TS 16.23 (12a) and TS 10 J 5.2 (12b) Release Documents—Document 13: TS 24.20 Release Documents—Documents 14a, 14b, and 14c: TS 10 J 4.16 (14a), TS 16.158 (14b), and TS 10 J 4.17 (14c) Release Documents—Document 15: ULC Or 1080 J 290

229

230

Appendix

Although I introduced each section of Chapter 2 with an incipit ex­posing the reader to a section of a particular Geniza document, those brief sections were brought in order to highlight one or another element of commercial cooperation. In order to give the reader a broader exposure to the nature and variety of legal documents from the Geniza concerned with commercial cooperation, I have included here more complete transcriptions and translations of a few such documents. Accompanying each transcription and translation is a brief introduction outlining some of the economic and legal issues brought to light by that particular document; where possible, I have included a few details concerning the dramatis personae discussed in the document as well. Of the fifteen documents I have included here, two are agency appointments (Docs. 1 and 2); five are ordinary partnerships (Docs. 3–7; Doc. 6 is a “work partnership,” for which the partners invest no capital); three are investment partnerships or commenda (Docs. 8–10); and five are release documents (Docs. 11–15). The transcription conventions I employ here are those typical for Geniza studies: ( )  round brackets indicate my completing an abbreviation used by the writer [ ]  square brackets indicate a lacuna in the fragment itself, generally because of a tear in the paper  x   underdots indicate letters that are partially legible, generally because of a lacuna or a smudge. In this appendix, the number of dots does not correspond to the estimated number of letters in the lacuna. //x//  slash marks indicate text written above the line [[x]]  double square brackets indicate text that has been stricken out in the document Note that I employ these conventions for the transcriptions of the documents here and the translations here alone; throughout the rest of the book, I indicate my own insertions with square brackets [ ].

Appendix

I have not reproduced diacritical marks in the documents that are written to disambiguate letters in the Judeo-Arabic, such as ‫ ג׳‬to indicate ‫ ج‬and not ‫غ‬.

Agency Agreements—Document 1: ENA NS 50.32 Introduction This document is an unsigned assignment of a power of attorney from Eleazar Mansūr “Head of the Congregations” b. Menahem of Aleppo to Hillel b. Abraham dated November 1050 ce.1 In the document, the former waives all right to the claim that the latter subverted his agency (l. 16), suggesting that this is an unlimited power of attorney. Although the formulary literature restricts unlimited powers of attorney to agents effecting a marriage, 2 this particular document reveals Eleazar to have been appointed to collect on an inheritance claim advanced by one Mulūk bt. Neĥuma b. Wahab, a claim described in another Geniza document.3 In the latter document, Mulūk explains that her inheritance was left by her father’s wife with Tamīm (cf. TS 18 J 2.12, l. 6); in the present document, Eleazar appoints Hillel as an agent to collect Mulūk’s inheritance from “any person at all, among them . . . Tamīm” (ll. 8–9). Not only do unlimited powers of attorney appear infrequently in the Jewish formularies, but codificatory formulations of agency and partnership law also generally avoid this form and hold an agent responsible for malfeasance and error in his agency.4 In this vein, Maimonides records in Mishneh Torah Hilkhot Sheluĥin ve-Shutafin 1:2 (following Talmud Bavli Bava Mesi‘a 108a) that when an agent “errs whatsoever, concerning real estate or moveable assets, he may retract [the transaction], as the principal may say, ‘I sent you to advance my cause and not to subvert [it].’” However, Maimonides does leave open the possibility for a principal to appoint an agent with an unlimited power of attorney; he records immediately thereafter the possibility that “if [the principal] stipulates that he appointed the other an agent whether he advances or subverts his cause, even if [the agent] sold an item worth one hundred [dinars] for a single dinar or purchases an

231

232

Appendix

Figure 1. Elkan Nathan Adler Collection (ENA), New Series 50.32. Courtesy of The Library of The Jewish Theological Seminary of America.

item worth a single dinar for a hundred—the principal may not go back upon the transaction, and the principal is obligated to pay in accordance with his condition.” 5

‫‪233‬‬

‫‪Appendix‬‬

‫‪Transcription of ENA NS 50.32‬‬

‫      [ז]כרון עידות שהיתה לפנינו אנו העדים החותמים עדותינו מטה בכתב הזה‬ ‫איך כב ק[ד]‬ ‫      מ רב אלעזר הזקן הקרוי מנצור ראש הקהלות בר מנחם אשר ממדינת ‪//‬‬ ‫צובה‪ //‬אמר לנו רבותיי ה[יו]‬ ‫      עלי עדים וקנו ממנו קנין גמור חמור מעכשיו וכתבו וחתמנו עלי בכל לשון‬ ‫של זכות ותנו ל‬ ‫      למר הלל הזקן בר מר אברהם הידוע בן ‪..‬ואקא היות בידו לזכות ולראיה‬ ‫לאחר היום ואני [לא]‬ ‫      אנוס ולא טועה ולא תועה ולא חולה ולא מוכרח‪ 6‬אלא בגמר דעתי וחפצי‬ ‫ורעות אני מודה‬ ‫      לפניכם הודאה גמורה חלוטה הודאת ברי ולא כהודאת שכב מרע הודאה‬ ‫באמת ובצדק‬ ‫      בלב ופה כארת אני מודה לפניכם שנתתי למר הלל זה ארבע אמות קרקע‬ ‫שלי בם דין העולם‬ ‫      ועל גבן‪ 7‬השלטתיהו מניתיהו שמתיהו עשיתיהו אפטרפוס ואנטילר לתבוע‬ ‫כל אדם בעולם‬ ‫      מהם כב קד מר תמים בר יצחק הידוע בן אלעם בכל מה שהניח טיבאן בר‬ ‫מחפוץ אלקמי‬ ‫‪1 10‬הנפטר בצובה שזכתה בו מלוך בת נחומה בר והב שהיא אשת מר יוסף‬ ‫הסופ[ר בר מנשה]‬ ‫‪1 11‬הידוע בן אלעני היא שהרשתני וכתבה לי על עצמה שטר אורכתא והרשתני‬ ‫למנות‬ ‫‪1 12‬ברשותי אפטרפוס על תביעת עזבון זה ונתתי לו רשות להדיין בטענתו בכל‬ ‫בית דין שי‬ ‫‪1 13‬שירצה ולהוציא עזבון זה לזכות בו ולטלנו לעצמו ויש לו להשביע ולהאלות‬ ‫ולפשר‬ ‫‪1 14‬ולפצות ולהכריז ולדקדק ולחשב וכל מה שהוא עושה עשוי לפי ששמתי ידי‬ ‫והעמדתיהו‬ ‫‪1 15‬במקומי ודיבורו דיבורי ותביעתו תביעתי וטענתו טענתי וכל מה שהוא‬ ‫עושה עשוי וכל‬ ‫‪1 16‬המתענה מן הדין מקובל עליו ואין לי רשות לשוב ולאמר לתקוני שדרתיך‬ ‫ולא לעוותי‬ ‫‪1 17‬אלא כל מה שהוא עושה עשוי ואחריות שטר אורכתא ד[נן   ]לי דלא‬ ‫כאסמכתא‬

234

Appendix

]‫ודלא כטופסא דשטארי אלא כחוזק וכחומר כל השטרים [המוחזקים‬1 18 ‫מקוימים דתקינו‬ ‫רבנן ו[נהיגין] בעלמא מיומא דנן ולעלם וקנינא אנן שהדי בכלי הכשר מיד‬1 19 ‫כב קד מרב‬ ‫אלעזר הקרוי מנצור ראש הקהלות בר מנחם למר הלל בר אברהם בכל מה‬2 20 ‫דכתיב‬ ‫[ו]מפורש היות לי לזכות ולראיה לאחר היום כתב בשלישי בשבא עשרים‬2 21 ‫וחמשה יומין‬ ‫בירח מרחשון שנת אלף שלוש מאות ששים [וש]תים שנים למנין שטרות‬2 22 ‫שאנו רגילין‬ ‫למנות בו בפסטאט מצרים שעל נילוס הנהר מותבה שריר וקיים‬2 23 Translation of ENA NS 50.32 1

2

3

4

5

6

7

[Recor]d of witness testimony which took place before us—we, the witnesses who have sealed our testimony below in this document—that (his) hon(or and) ho[liness] M(r.) master Eleazar the Elder, called Mansūr, Head of the Congregations, b. Menahem of the town of //Aleppo// said to us, “Gentlemen, b[e] witnesses on my behalf and perform a qinyan with me, a complete and weighty qinyan, effective immediately; write and sign on my behalf using all the language of claims. Give (it) to Mr. Hillel the Elder b. Mr. Abraham known as (I)bn..Wāqa’ in order that there would be in his hand a title of right and proof from this day forward. I [am not under] duress nor am I (in) error, nor have I gone astray, nor am I ill, nor am I forced (to do this), rather in the fullness of my mind and desire and will, I declare before you in a complete and definitive declaration, a declaration made in good health, not as a deathbed declaration, in truth and righteousness, with heart and mouth as one, I declare before you that I have given to this Mr. Hillel four cubits of my land to which I have a permanent claim

Appendix

and coupled thereto I have assigned him control, appointing him, assigning him and making him an agent and representative to claim from any person at all, 9 among them (his) hon(or and) hol(iness) Mr. Tamīm b. Isaac, known as (I)bn al-‘Amm, for all that which the deceased Tibān b. Maĥfūz al-Qummī 8 10 left in Aleppo, to which Mulūk bt. Neĥuma b. Wahab, who is the wife of Mr. Joseph the Scri[be b. Manasseh] 11 known as (I)bn al-‘Anī,9 who is the (woman) who authorized me, had claim; and she wrote this agency collection document for me and authorized me to appoint 12 in my place an(other) agent to claim this legacy: “I give him power to adjudicate his claim in any court 13 that he wishes, and to extract this legacy, and to take it for himself, to cause (others) to swear and to contract, to arbitrate 14 and to indemnify, to announce and to specify, and to reckon. Everything he does is done,10 as I have placed my hand (on a Torah scroll), and I have put him 15 in my place, and his words (are considered as) my words, and his demands (are considered as) my demands, and his claims (are considered as) my claims; and everything he does is done, and everything he 16 legally claims is accepted. I am unable to go back and say, ‘(I retained you) to fulfill my (agency) and not to subvert it.’ 17 Rather, everything he does is done.” Responsibility for th[is] agency collection document is as [a decree of] the Sages, (may their) m(emory be) f(or a blessing)] for it is not like promises 18 and not like formularies, but rather (bears) the weight and force of all established legal agency collection documents 19 [which] the rabbis [employed] from this day forward. We, the witnesses, performed a qinyan with an item suitable for doing so from the hand of (his) hon(or and) hol(iness), from Mr. 20 Eleazar, called Mansūr, Head of the Congregations, b. Menaĥem, and with Mr. Hillel b. Abraham, concerning everything written 21 and specified, as a title of right and proof after today. Written on Tuesday the twenty-fifth day 8

235

236

Appendix

of the month of Marĥeshvan of the year one thousand three hundred and sixty t[w]o, (of the Era) of Documents11 which we ordinarily 23 employ in Fustāt Egypt, which is situated on the Nile River. Proper and enduring. 22

Agency Agreements—Document 2: TS NS J 11 Introduction This document is a fragment from an agency agreement, in which Abū al-Ridā Solomon b. Mevorakh is given power of attorney to settle the assets of a partnership among Abū Sa‘īd Ĥalfōn b. Nissim Abū Ĥusayn al-Tinnīsī, Abū al-Fadl Amram b. Ephraim Abū Kathīr, and Abū al-Faraj Yeshu‘a ha-Levi b. Manasseh al-Jubaylī, following the termination and settlement of that partnership. These four individuals all appear in TS 10 J 4.16 (14a*), though in that document Solomon is described as a principal and here he serves as an agent. The present document may have been attached to an accounting statement for a principal whose name is not preserved, and Solomon may have been retained to settle both the funds of the principal who retained him and his own funds from the partnership described in TS 10 J 4.16 (14a*) with this investment; as Maimonides points out in Mishneh Torah Sheluĥin ve-Shutafin 3:2, “one who claims concerning his part may adjudicate so concerning the whole.” Thus Solomon would have acted both as principal and agent. The agency permissions granted him in this agreement are limited. On the other hand, agency agreements typically also empower the agent to appoint a further agent—a permission notable by its absence here.12 The commodities that were initially placed with the partnership, as well as their values, are listed in ll. 19–21; the commodities ascribed to the principal, which Solomon was empowered to collect, are listed in ll. 2–3. Most of the legal form of the power of attorney is missing, but the details of the partnership agreement for which Solomon b. Mevorakh is given the power to collect are preserved in order to parry the claim to which Maimonides refers in Mishneh Torah Sheluĥin ve-Shutafin 3:1,

Appendix

Figure 2. Taylor-Schechter (TS), New Series J 11. Courtesy of the Syndics of Cambridge University Library.

that the agent is indeed not the counterparty of the debtor and that the debtor need not heed the claims of the agent. The document seems to be in the hand of the well-known court scribe Ĥalfōn b. Manasseh.13

237

‫‪Appendix‬‬

‫‪Transcription of TS NS J 11‬‬

‫      [‪.......]..................................................‬‬ ‫      [‪...............]..........‬עשר וכמס מאיה וכמסון דינארא ונצף מראבטייה‬ ‫      ‪...‬יתון פצה אלוזן אתנין ותמנון דרהמא ומלאה תוני כאם מחשאה ולוכילי‬ ‫מטאלבה‬ ‫      אלגמיע בדלך מן אלד מנהם סאלנא אלי מצר ובקי אלשי בידה עלי חאלה‬ ‫אנפצל אנא‬ ‫      מנה עלי מא אכתאר ומן כאן לה עאקה ומקאם פי תלך אלדיאר יקבץ מנה‬ ‫מאלי‬ ‫      בידה ויבריה ממא קבץ לא גירה והדה נסכה גמיע מא חואל אלשטר‬ ‫אלמדכור לעילא אלדי‬ ‫      אחצרתה אלינא מראש ועד סוף ונסכה שהודה אות באות ומלה במלה‬ ‫שהדותא ‪//‬דהוה‪//‬‬ ‫      באנפנא אנן שהדי דחתמות ידנא לתחתא כן הוה חצרו אלינא אלשיך אבו‬ ‫סעיד מר ור‬ ‫      חלפון היקר בר מר ור נסים הזקן המכונה אלשיך אבו אלחסין הידוע‬ ‫אלתניסי נע ואלשיך‬ ‫‪1 10‬אבו אלפצל מר ור עמרם היקר בר מר ור אפרים הזקן המכונה אלשיך אבו‬ ‫כתיר נע ואל‬ ‫‪1 11‬שיך אבו אלפרג אלגבילי מר ור ישועה היקר הלוי בר כגק מר ור מנשה הלוי‬ ‫ראש הקהל‬ ‫‪1 12‬נע וקאלו לנא אשהדו עלינא ואקנו מנא מעכשו ואכתבו ואכתמו עלינא‬ ‫בגמיע אל‬ ‫‪1 13‬אלפאט אלמחכמה ואלמעאני אלמוכדה ובכל לישאני דזכואתא וסלמו דלך‬ ‫אלי חצרה אלשיך‬ ‫‪1 14‬אלגליל אבו אלרצא אלוכיל כב גד קד מרנא ורבנא שלמה השר הנכבד‬ ‫החכם והנבון בר כב‬ ‫‪1 15‬גד קד מרנא ורבנא מבורך החבר בסנהדרין גדולה זל ליכון בידה לליום‬ ‫ובעדה חגה וותאק‬ ‫‪1 16‬אננא מקרין ענדכם באוכד מעאני אלאקראראת ואותקהא פי צחה מנא‬ ‫וגואז אמר‬ ‫‪1 17‬טאיעין מן גיר קהר ולא גבר ולא אכראה ולא סהו ולא גלט ולא עלה בנא מן‬ ‫מרץ ולא גיר דלך‬ ‫‪1 18‬מן גמיע מפסדאת אלשהאדה אננא קד אסתכרנא אלכאלק תעאלי דכרה‬ ‫ותקדסת ‪//‬אסמאה‪//‬‬

‫‪238‬‬

Appendix

‫וקבצנא ותסלמנא מנה צפט בז דביקי מבלג תמנה מאיתין דינארא וארבעה‬1 19 ‫וכמסון‬ ‫דינארא ועשרה קיסיאת בתסעה דנאניר אלא רבע ועינא סבעה ותלתון‬2 20 //‫צארה‬// ‫דינארא ורבע‬ ‫אלגמלה תלתה מאיה דינארא דהבא עינא מתאקילא ואזנה מצריה גיאדא‬2 21 ‫צחאחא וצאר‬ ‫גמיע דלך אלינא ען כמאלה ותמאמה עלי אננא נסאפר בדלך אלי דיאר‬2 22 ‫אלימן וגירהא מן אלבלאד‬ ‫]סנא אלחט פי דלך ואלמצלחה‬...............[ ‫אלתי יתגה לנא אלספר אליהא‬2 23 ‫במשיה אללה‬ Translation of TS NS J 11 ... 2 [. . .] . . . ten, and five hundred and fifty and a half Almoravid dinars 3 . . . silver weighing eighty-two dirhams, and a linen Tūnī 14 cloak with a border, and my agent has a claim 4 for all that from the 4 of them. We sent an inquiry to Fustāt and the matter remained in his hand such as it is. I am disassociating myself 5 from him concerning what he has chosen, 15 and one who has restraint and power there shall receive my assets from him 6 in his hand and shall release him from that which he has received—no one else. This is the complete text of the aforementioned document that 7 was brought to us, from beginning to end; and the text of the witnesses letter for letter and word for word: Testimony which // was// 8 before us—we, the undersigned witnesses. Thus: the Elder Abū Sa‘īd (our) tea(cher) and m(aster) 9 Ĥalfōn the beloved b. (our) tea(cher) and m(aster) Nissim the Elder, known as the Elder Abū Ĥusayn, known as al-Tinnīsī 16 (who) r(ests in) E(den) and the Elder 10 Abū al-Fadl (our) tea(cher) and m(aster) Amram the beloved b. (our) tea(cher) and m(aster) Ephraim the Elder, known as the Elder Abū Kathīr (who) r(ests in) E(den), and the 1

239

240

Appendix

Elder Abū al-Faraj al-Jubaylī (our) tea(cher) and m(aster) Yeshu‘a the beloved ha-Levi b. (his) h(onor,) g(reatness, and) h(oliness) Manasseh ha-Levi, Head of the Congregation 12 (who) r(ests in) E(den) came before us, and they said to us, “Testify on our behalf and perform a qinyan with us effective immediately, write and sign concerning us with all 13 the appropriate legal formulae and the expressions of certainty, and all the language of claims, and give that to his Excellency the glorious Elder 14 Abū al-Ridā the agent (his) hon(or,) gre(atness, and) hol(iness,) our teacher and our master Solomon the Honored Courtier, the Sage and the wise one, b. (his) hon(or,) 15 gre(atness and) hol(iness) our teacher and our master Mevorakh, the Ĥaver   17 of the Great Sanhedrin (may his) m(emory be) f(or a blessing,) in order that he would have from this day forward proof and a legal claim 16 that we attest before you with the most certain and perfect expressions of affirmation, in our good health and freedom of will, 17 willingly, with neither duress nor force nor compulsion, without negligence or error, nor defect of illness within us, nor anything of the like 18 from all the factors which nullify testimony, that we have asked God, may //His name// be exalted and made holy, for guidance, 19 and we have received and accepted from him a basket of Dabīqī 18 cloth, the amount of its value being two hundred and fifty-four 20 dinars, and ten items of clothing amounting to nine dinars less a quarter, and specie amount to thirty-seven dinars and a quarter (dinar), 21 the total being three hundred gold dinars of weighed specie, good and correct, of Fustāt standard weight. All that came into 22 our possession entirely and in toto, that we would travel with it to Yemen and to other places 23 to which we might turn in travel [. . .] the good fortune therein, and the benefit—if God wills it— 11

Appendix

Partnership Agreements—Document 3: Mosseri VII 17 Introduction In this unsigned and undated draft of a partnership agreement, an unnamed active partner receives two hundred dinars from Sibā‘ (ll. 1–2), with which he is to travel to Alexandria and transact in unnamed commodities (l. 7). Sibā‘ agrees to share equally in all losses to the partnership as a whole (ll. 8–11), such as losses due to work stoppage (l. 9) or broken merchandise (l. 10). Lines 12–16, somewhat difficult to understand, seem to grant that the commodities may end up traveling for sale in Alexandria escorted by someone other than the active partner (l. 13); if this is the case, the active partner is to inform Sibā‘ (ll. 15–16). At this point, with the partnership capital having left the control of the active partner, the risk of loss is wholly carried by Sibā‘ (ll. 14–15). The active partner’s testimony concerning profits and losses is to be trusted without the support of witness testimony (ll. 25–26 and Margin ll. 1–9). As for the division of profits, the active partner seems to be entitled to all profits (ll. 19–21) except for the maintenance of Sibā‘—an amount that itself excludes the rent on his house and fees for his son’s education (ll. 4–6). That the share of profits due Sibā‘ could be a fixed amount not linked to the success of partnership assets would seem to come up against rabbinic prohibitions of usury.19 However, Sibā‘ does bear some of the responsibility for losses—suggesting that this is an innovative venture-capital agreement instead of a mercantile agreement following either the ordinary partnership or the commenda model. The language of the document, notably the use of the first person throughout, suggests that it would have been prepared and notarized for the active partner, as with powers of attorney. The active partner could then present it as supporting documentation in the event of a dispute surrounding his calculation of partnership profits. To prepare the transcription of this document, I turned initially to the transcription in the Princeton Geniza Project’s electronic database20 and then examined an electronic image of the document to modify the transcription as necessary.

241

Figure 3. Jacques Mosseri Collection at Cambridge University Library (Mosseri), VII 17. Courtesy of the Syndics of Cambridge University Library.

‫‪243‬‬

‫‪Appendix‬‬

‫‪Transcription of Mosseri VII 17‬‬

‫      אלמסתקר ביני ובין אלשיך סבאע פימא סלמה לי מן אלעין והו‬ ‫      מאיתין דינ עלי סביל אלמעאמלה בשרוט יאתי דכרהא ודלך‬ ‫      אן יכון ללשיך סבאע מן גמלה מא יסהלה אללה תעאלי פיהא מן‬ ‫      אלפאידה יכון לה מן דלך מא יחתאג אליה פי כל סנה מן‬ ‫      קמח ונביד ומא יכצה מא ברא סכנה פי דארה ותעלים‬ ‫      ולדה ארתצא בדלך מע תצרפי פי הדא אלמבלג אלמדכור‬ ‫      באלאכד ואלעטא ושרא אלסלע וביעהא ואלספר אלי אלאסכנדריה‬ ‫      ואלתרסיל אליהא איצא מענון אופק אליה בחית אן יכון‬ ‫      מא אנכסר ואוקף ענד[י] פ[י] עמל או כסר‬ ‫‪1 10‬פי בצאעה לזמה מן דלך מא יכצה עלי כל‬ ‫‪1 11‬מאיה דינ מא יכצהא עליה מנה אלנצף ואמא‬ ‫‪1 12‬אדא סהל אללה תעאלי באלספר אלי אסכנדריה או אלתספיר‬ ‫‪1 13‬אליהא מע גירי אמא תרסיל או בנציב פאידה פיכון‬ ‫‪1 14‬דרך וגרר דרהם כל ואחד עלי נפסה אלדי יכצני‬ ‫‪1 15‬יכצני ואלדי יכצה יכצה בחית אן אעלמה אן‬ ‫‪1 16‬קד תוגה לה ללספר כדא וכדא וכדאלך איצא‬ ‫‪1 17‬ארתצא אלשיך סבאע אן יכון באקי מא יסהלה אללה‬ ‫‪1 18‬תעאלי ויפתח בה מן פאידה פי הדה אלנמיה אלמקדם‬ ‫‪1 19‬דכרהא ארתצא בשהותה בלי אונס כלל וגעלהא‬ ‫‪2 20‬לי דונה כמתנא סלימה‪ 21‬מעכשיו וב‪//‬מ‪//‬חילה גמורה‬ ‫‪2 21‬בפה ובלב בעולם הזה ולעולם הבא ליס לה‬ ‫‪2 22‬פי דלך רגעה upside down‬قد موالی التازر ‪ >right side up< ...‬ולא עודה‬ ‫‪2 23‬בטלב ען דלך ולא תענת פיה ולא ענה בוגה‬

‫‪ >upside down