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Chapter 1

Codification and Legal Change

1.1 Codification and Legal Change: Two Views

In “Where Do We Stand in the Study of Maimonidean Halakhah?,” published over a quarter of a century ago, the eminent Maimonidean scholar Gerald Blidstein wrote: “Though law is a notoriously conservative aspect of culture, legal systems do reflect changing economic and social realities.” With specific reference to the Code, he adds: “The economy of the medieval East was, in certain ways, a continuation of that dominant in Talmudic times; but certain realities had of course changed. The Islamic East was urban and mercantile.” He then asks the intriguing question: “Does Maimonidean law reflect this shift? Or does it—the responsa aside—remain firmly fixed within the Talmudic reality, both in its resources, rulings, and attitudes? Do we find extrapolations from Talmudic law to the new situation—or perhaps more than that, or less?”¹ Blidstein raises here, but does not answer, the question of legal change in Maimonides’ treatment of commercial law, the question that animates the present book.

The distinguished legal historian Alan Watson addresses legal innovation in regard to Roman and English law in his classic Society and Legal Change. He points to the inertia of private law, its resistance to change—what Blidstein terms its “notoriously conservative aspect.” Watson is even more categorical in his negative assessment of the capacity of law to adapt to changes in society. “The argument of this book,” he writes, “is that in the West, rules of private law have been and are in large measure out of step with the needs and desires of society and even of its ruling elite; to an extent which renders implausible the existing theories of legal development and of the relationship between law and society.”² He asks, however, in an important aside, whether “codification,” especially original codes, can “remove the significant divergence between law and society and … abolish legal scaffolding.” By “legal scaffolding,” he means an encrustation of legal rules meant to modify the existing laws but that, in fact, makes them more complex than necessary.³

In a later iteration of his thesis, Watson registers an exception to the rule of inertia in private law. Mercantile custom, he writes, is particularly susceptible to what he calls “transplant bias,” referring to his book Legal Transplants: An Approach to Comparative Law.⁴ He explains: “What is borrowed is international mercantile law based on what merchants do. To a very large degree, this law is received because the merchants’ business would otherwise be directly disadvantaged.” It is received, moreover, “without the merchants’ having much knowledge of law.”⁵ Applying Watson’s formulation to the present case, we may imagine a process whereby Jewish merchants in the Islamic world adopted mercantile practices current in the marketplace without necessarily knowing the Islamic law that supported those practices. They would, however, have been exposed to the legal basis for these customs when, as commonly happened, they turned to Islamic courts to draw up and register contracts or when they appeared before a qāḍī to adjudicate disputes. How a jurist like Maimonides confronted, from a traditional Jewish perspective, these new norms of the marketplace—and how he accommodated them in his Code—will occupy us throughout this book.

1.1.1 Codification and Legal Change in Maimonides’ Code

Addressing Blidstein’s query about the historical context of Maimonides’ Code and bearing in mind Watson’s question about codification and legal change, I examine aspects of commercial law in the Mishneh Torah to determine whether—and, if so, how—Maimonides responded through codification to economic realities of his time and place. These realities are revealed especially in the documentary treasures of the Cairo Geniza but also in the responsa of the Islamic period.

Others have noticed echoes of life “on the ground” in the Code but not with reference to the evidence of the Geniza documents.⁶ Though not without precedent in the history of Jewish codification—as already noted, the Babylonian Geonim compiled dozens of legal monographs on specific subjects, including a number of limited general codes⁷—Maimonides went a giant step further. He constructed a code that meets the criteria for the kind of compilation envisioned by Alan Watson.⁸ By breaking the halakha into discrete units, each classified in a rational way that liberated the law from the complexity of Talmudic discourse, it minimized the “legal scaffolding” that Watson describes in connection with Roman and English law. Like the “original” codes envisaged by Watson, Maimonides’ opus can be said to have represented a new “canon” of the halakha.⁹ It is my considered opinion, and I hope to make the case effectively in this book, that much, if not most, of the enhancements to the commercial law that I have detected in the Code represent Maimonides’ conscious and—from our perspective, at least—original effort to close the gap between the law of the Talmud and the practice of contemporary Jewish merchants, giving Jewish courts a competitive edge in deterring Jewish merchants from recourse to Islamic courts.

If Maimonides’ innovative response through codification to current mercantile practice has not been appreciated, it is partly because Maimonides went to great lengths to assert the conservative nature of his work and partly because scholars have not thought to apply the Geniza evidence to the subject at hand. In his Introduction to the Code, Maimonides proclaimed that it contained nothing new. It was simply a “repetition of the Law,” a phrase generally assumed to echo the term mishneh torah in Deut. 17:18 but perhaps referring to its postbiblical content.¹⁰ It consists of a compendium of postbiblical, binding rulings, the latest link in a continuous chain of halakhic writings. It subsumes the Mishna (and its parallel, the Tosefta), Sifra and Sifre (the most legalistic of the halakhic midrashim), the Mishna and Gemara of the two Talmuds, and the legal writings of the post-Talmudic Geonim, as well as his Andalusian teachers. In his Introduction and in other writings, he modestly called the Mishneh Torah his ḥibbur, which he defined as a collection of halakhot without accompanying dialectical examination, similar to the Mishna.¹¹ With this in hand, users would have no need to consult any of those works. While Maimonides’ professed deference to tradition was in keeping with a fundamental principle of codification in the Jewish conception,¹² his unprecedented method of omitting sources, coupled with his unambiguous statement that the Code made consultation of prior halakhic literature unnecessary, opened the door to suspicion that he had departed from traditional legal norms.

Maimonides must have anticipated that his method of codification would leave many readers puzzled, if not perplexed. Indeed, this kind of criticism began during his own lifetime in Egypt. When challenged in a letter from Pinḥas ben Meshullam, the judge of Alexandria, to explain halakhot in the Code for which the judge could find no source in the rabbinic corpus, Maimonides insisted sharply that he had not deviated from the tradition and chastised his correspondent for failing to locate the relevant sources on his own. If here and there, he had “originated” a ruling, he said, he had marked it clearly as his own.¹³ He wrote, further, that he had intended to publish a work explaining his treatment of difficult halakhot—for instance, halakhot based on the Palestinian Talmud, which was not well known to most students and scholars in his time, but he had not found the time to complete that project.¹⁴

The omission of sources in the Mishneh Torah unleashed a torrent of commentaries seeking to anchor its rulings in Talmudic literature. Most of the time, the commentators found something. Occasionally, they did not, or they differed with one another, raising suspicions that something was not quite right.

Modern scholars have generally taken Maimonides at his word and accepted the Code as simply a summa of received Jewish law, though the innovative aspects of the Code uncovered in recent years by such scholars as Gideon Libson and Sarah Stroumsa should prepare us to find other features of originality in Maimonides’ great halakhic opus.¹⁵ Maimonides’ denial of his originality notwithstanding, it is reasonable to ask, with Blidstein, whether the work responds in some way to everyday life and, with Watson’s question in mind, whether he used codification to reconcile Talmudic law with the custom of merchants in the Islamic world.¹⁶ Thanks to the Geniza, we are in a position to answer both questions in the affirmative.

1.1.2 Maimonides in His Society

Maimonides did not live cloistered in a rabbinic academy. He was intimately involved with society, as head of the Jewish community for many years and as jurisconsult, answering questions of Jewish law arising from daily affairs—a “man of action,” to borrow the title of one of Goitein’s essays.¹⁷ In economic matters, especially, Maimonides was fully aware of the gulf that separated the world of the Talmud from the world of the Geniza merchants. Though known to us primarily as a philosopher, legist, and physician, his younger Muslim contemporary Ibn al-Qifṭī (1172–1248), who lived in Cairo until 1187, reports credibly in his biographical dictionary of philosophers, scientists, and other learned men, Ta’rīkh al-ḥukamā’, that Maimonides, upon his arrival in Egypt, “made a living by trading in jewels and suchlike.”¹⁸ We know from the Geniza that his brother, David, engaged in trade between Egypt and India. Maimonides, furthermore, had passed the early years of his life in the commercial milieu of Muslim Spain, then in the North African trading hub of Fez, before settling in Egypt, the pivotal point in the East-West Mediterranean and Indian Ocean trade. Reading the Code in the light of Geniza documents from everyday economic life as well as in the light of Maimonides’ own responsa, we shall see that, despite his disclaimers in the Introduction and in his letter to the Alexandrian judge, in commercial law, Maimonides used codification, in Watson’s words, to “remove the significant divergence between law and society,” namely, traditional Jewish law and his own Islamicate society.

1.2 The Method

New emphases in the Code, new taxonomies of halakhic content, subtle changes of wording, reorganization of Talmudic material, or additional material not found in the Talmudic corpus, all responding to changes in the economic order of the Islamic world, illustrate Maimonides’ method. Taken as a whole, the evidence, often difficult to discern, sheds light from an unexpected angle of vision on the question posed by Watson and by Blidstein about the relationship between law and society and reveals a creative feature of the Code that has not previously been recognized.

To be sure, in bridging the gap between law and society, Maimonides did not operate in an intellectual vacuum. In his attitude toward custom, for instance, he, like the Geonim before him, accepted the rabbinic approval of custom as a valid source of law. Twersky took note of this, but all the examples of local custom that he cites—usually specifically flagged by Maimonides himself as “custom”—belong to the realm of personal, family, and ritual law. Moreover, Twersky asserts that Maimonides was selective and discerning when it came to customs having universal (as opposed to local) validity.¹⁹

In his comprehensive review of Twersky’s Introduction to the Code, Blidstein contends that the claim, implicit in Twersky’s work, that the Mishneh Torah shows no signs of the impact of immanent historical, social, and economic forces in the non-Jewish (Islamic) environment, needs further scholarly consideration.²⁰ To this, we may add the following. Twersky discusses “the problem of contradictions” in the Code, “troublesome features” such as statements apparently disagreeing with the Talmud, or with one another, or even statements lacking Talmudic antecedents entirely. He explains them as part of a well-thought-out method with its own logic, rules, and purpose.²¹ But this fails to take into consideration that, in affairs of the marketplace, Maimonides often diverged from the ancient halakha because that halakha was geared to an economy quite different from the commercial economy of the Islamic world. As we shall see, in commercial law, he made adjustments to the halakha to accommodate customs of the merchants, customs that were deeply entrenched among Jewish merchants. These are revealed in rich and colorful detail in the Geniza documents. In this light, Maimonides’ retort to the judge of Alexandria, like his insistence in the Introduction to the Code that he was simply compiling laws from classical Talmudic and post-Talmudic sources, sounds like a disclaimer intended to ward off criticism that he was, in some cases, overstepping the bounds of traditional Jewish jurisprudence.

1.2.1 Criticism of the Method of the Code

The perplexed judge of Alexandria was far from Maimonides’ only critic. One of his contemporaries, the Babylonian Gaon Samuel b. Eli, protested strenuously against the Code, which, in his view, undermined the teaching of the Talmud and, by extension, detracted from the importance of his Talmudic academy in Baghdad.²² The harshest critic was R. Abraham b. David of Posquières in southern France, although Twersky argues that his biting criticisms were in keeping with acceptable rhetoric of the times.²³ Maimonides’ defenders, particularly his son and successor, Abraham, went to great lengths to refute accusations leveled against the Code.²⁴

The vast majority of medieval and early modern commentators approached the Code with a more reverent attitude. They searched for Maimonides’ sources in classical rabbinic texts or in works of his predecessors in the Islamic period. Their goal was not to challenge the Code but rather to rehabilitate it. When they failed to find a reasonable underpinning for a ruling on commercial law in the Code, it was often because they did not fully understand the economic realia of Maimonides’ time.

1.3 Maimonides’ Reforms of Synagogue Practice and Their Relationship to the Code

To illustrate the interplay of law and society in Maimonides’ thought, I review here his well-known reform of the synagogue service—particularly, how he translated almost surreptitiously what was an ad hoc taqqana into a permanent change in the halakha in the Code. If Maimonides was willing to institute reforms in the sensitive area of religious practice in his Code, we should not be surprised to discover that he instituted changes in the less controversial domain of commercial law.

1.3.1 The Taqqana Abolishing the Silent Recitation of the ‘Amida on Sabbath and Festivals

Sometime after his arrival in Egypt around 1165, Maimonides promulgated an “ordinance” (rutba in the Arabic original of Maimonides’ responsa, translated as taqqana by the editor, Joshua Blau, and so referred to in the scholarly literature)²⁵ abolishing the silent recitation of the Eighteen Benedictions, also called the ‘Amida prayer (lit., “standing”) because it is recited while erect. Traditionally, during the morning and afternoon prayers on the Sabbath and festivals, the ‘Amida was recited first by the congregation praying silently along with the cantor, after which the cantor repeated the prayer aloud. The purpose of the repetition was to enable congregants who did not know the prayers by heart to fulfill their liturgical obligation by listening as the cantor repeated each blessing and by responding “amen.” During the evening prayer, the Eighteen Benedictions were recited only once, silently, because that prayer was originally considered optional and therefore no obligation fell upon congregants to recite it.

Maimonides explained his action as a response to indecorous behavior during the service. During the reader’s repetition, members of the congregation who had already fulfilled their obligation by praying silently with the cantor were in the habit of getting up from their places during the cantor’s repetition, stepping outside, talking to one another, blowing their noses, spitting on the floor, and, in the process, turning away from the direction of prayer—which Maimonides, like other Jewish writers before him, calls qibla, employing the Islamic term for the direction of prayer toward the holy city of Mecca.²⁶ This lack of decorum was not peculiar or new to Maimonides’ time and place. A responsum of the Babylonian Gaon R. Naṭronai b. Hilai (Gaon from 857/858 to 865/866) reprimands Jews who sit in the courtyard outside the synagogue during services, talking and making light of the sanctity of the prayers.²⁷

Maimonides notes that the disrupters set a bad example for others, who imitated their gauche behavior. Consequently, the cantor’s repetition on their behalf fell unheeded, and the blessings that he chanted were for naught (berakha le-vaṭala). In addition, the people for whom the repetition was intended ended up failing to fulfill their obligation to at least hear the prayer. Maimonides was especially disconcerted by the prospect that Muslims, who “observe this with their own eyes” (yashhadūnahu), would think that, for Jews, prayer was “for fun [la‘b] and mockery [huzu’],” quoting the very words that the Qur’ān ascribes to the People of the Book when they mock Islam (Sura 5:57). We may imagine that Muslims passing by the synagogue during daylight hours overheard and even observed the chaotic spectacle inside the synagogue compound and ridiculed it. The reform, Maimonides asserted, limiting the ‘Amida to a single, public recitation led by the cantor with all congregants praying along or answering “amen,” aimed at removing a stain on the reputation of the Jews in Muslim eyes, a “profanation of the name of God” (ḥillul ha-shem), as he writes, citing a general rule.²⁸

We learn about Maimonides’ reform from his responsa, which portray the taqqana as an expedient and as a response to an immediate problem. Such changes in the halakha were normally time-bound, enacted to address an urgent situation. They were justified by the principle that one may “violate” the law (haferu toratekha)²⁹ when the alternative—leaving the law as is—would have dire consequences. This was a perfect case, then, for applying the haferu toratekha rule, which Maimonides invokes explicitly in explaining his action.³⁰

1.3.2 Echoes of the Taqqana in the Code

In the Code, which was meant to serve all future generations, Maimonides adhered to the status quo ante, codifying the halakha in accordance with ancient practice, leaving the initial silent recitation of the ‘Amida intact.³¹ Nonetheless, we hear echoes of the taqqana in the Code in directives calculated to achieve the same end. In the halakha about the recitation of the Eighteen Benedictions, for example, Maimonides rules that, following the silent recitation, when the cantor begins chanting the prayer aloud, “everyone must stand and listen and answer ‘amen’ after each blessing, both those who have not yet fulfilled their obligation and those who have already fulfilled theirs.”³² I take this phrase to be aimed at those very people who disturbed the decorum during the cantorial reprise. Maimonides instructs them to adhere to proper conduct after they have finished their silent devotion in order to avoid ḥillul ha-shem. In this way, he achieved the goal of the reform within the context of the existing halakha.

Another echo of Maimonides’ concern about synagogue decorum may be found in a halakha recommending that people clean out their nose and mouth before praying, a practice not required in the Talmud but reminiscent of the Islamic custom of purifying the body before engaging in prayer. This practice would minimize the nose-blowing and expectoration that Maimonides singles out as an embarrassment in the face of Muslim onlookers.³³ In short, while Maimonides left the silent recitation of the Eighteen Benedictions on Sabbath and festivals “on the books,” he instituted rules in the Code meant to eliminate the very behavior that had brought him to issue the taqqana in the first place.

An additional reverberation arising from Muslim ridicule of synagogue decorum seems to lurk behind another halakha in the Code. It concerns the seating arrangement during the prayer service.³⁴ In Maimonides’ day, congregants seated themselves haphazardly, facing one direction or another, with no apparent order. This rankled Maimonides’ rationalistic bent—his passion for systematization in all things. Doubtless, too, he worried that Muslims would contrast this unfavorably with the more reverent way of sitting in parallel rows in the mosque on Friday, the day of congregational prayer. And so he sought to change the way things were done.

The reform is enveloped in an ancient halakha from the Tosefta, giving it the sanction of rabbinic tradition. In the Laws of Prayer and the Priestly Blessing, Maimonides draws upon the language of the Tosefta but adds his own twist. He rules that people should sit in straight rows in the synagogue, one row behind the other, everyone facing the holy ark, while the elders sit facing the congregants.³⁵ This pattern recognizably models itself on the orderly positioning of worshipers during the Friday congregational prayer in the mosque. As in the case of the taqqana eliminating the silent recitation of the ‘Amida, Maimonides’ ruling in the Code on seating arrangements responded to a contemporary problem—much as the rulings of the Geonim had done in their day—bringing synagogue practice more into line with the dignified prayer service of the mosque, with its straight, parallel rows of worshipers facing the qibla. If the stories in Arabic sources of Maimonides’ outward conversion to Islam in Spain during his youth at the time of the Almohad persecutions are true, as scholars, including me, are increasingly coming to believe, he would have had direct experience of the mosque service, though even without conversion to Islam, he would have been aware of the orderly pattern of seating in the Muslim house of worship.³⁶

Though his synagogue reform arose from an immediate concern about entrenched patterns of behavior requiring emergency intervention in the form of a taqqana, Maimonides found ways of addressing the problem for the long term in the Code. This amounted to a sub-rosa change in the halakha of Jewish prayer. Similarly, his halakhic adaptations in the realm of commercial law represented a response to deep-seated norms of marketplace practice stemming from the “custom of the merchants” and were meant as permanent adjustments to the halakha.