Uriel Simonsohn on Law and Justice Under Islam

Earlier I mentioned a new book by Uriel Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam (University of Pennsylvania Press, 2011). As anyone who knows anything about early Islamic treatments of minorities knows, the fate of Eastern Christians was often the same as that of the Jews. A great deal of the book treats Eastern Christians, especially Arabic and Syriac Christians, and so I asked the author for an interview. Here are his thoughts. 

AD: Tell us about your background

I graduated from the department for Near Eastern Studies at Princeton University in 2008. At present I am a post-doctoral fellow at the Martin Buber Society of Fellows, at Hebrew University in Jerusalem.  My academic interests pertain to the individual and shared histories of Mediterranean confessional groups from as early as Late Antiquity to as late as the Mamluk period. I am particularly interested in examining the ways in which individuals and groups sustained their confessional identity in the context of their affiliation to a plurality of social circles. Contrary to the very notion of discrete units, I seek to nuance the image that emerges from the social landscape of the medieval Near East and Mediterranean Basin and perceive it in terms of a constant evolution of partnerships, friendships, collegial ties, and even familial bonds among members of different religions. 

I am now pursuing two main research projects: the first is concerned with the historiographic tradition of the Byzantine Orthodox in the early Islamic period, through the work of the tenth-century patriarch of Alexandria, Eutychius or Sa’id ibn Batriq. The objective of the project is to delineate and identity features of medieval Byzantine Orthodox communities by examining themes of narrative and memory in so-called Melkite (i.e. Byzantine Orthodox) historiography. The second is a study aimed at exploring the theoretical and practical meanings of conversion to Islam in the early Islamic period through an examination of Islamic, Jewish, and Christian legal sources from Mesopotamia. 

           

AD: What led to the writing of this book?

The topic was inspired by my interest in the social and religious history of Near Eastern communities in the early Islamic period and by my recognition that legal sources have been hitherto insufficiently exploited in modern scholarship for writing this kind of history.

AD: You open your introduction by referring to the "fragmentary remains of Christian and Jewish legal documents." Tell us a bit about the state of the literature--what is extant, what lost or corrupt, and what major lacunae--as well as the challenges this posed for you and how you overcame them.

Perhaps a good way to begin answering this question is by remarking that most of what has been written is not extant. In terms of the Near Eastern Jewish literature that has survived, I would say that its vast majority stems from the Cairo Geniza, an enigmatic depository, once mistakenly thought of as an archive, of documents found in a wall of the Ibn Ezra synagogue in old Cairo, i.e. Fustat. Most of the documents found in the Geniza were written/copied between the tenth and thirteenth centuries, though there is also some material from later centuries. The primary language used in these documents is Judeao-Arabic. The Jewish legal sources on which I work – geonic responsa – were mainly preserved either through the Geniza or collections which were transmitted to the medieval Jewish diaspora in Europe. 

As for the Eastern Christian legal literature, that which is extant was mostly gathered in edited volumes such as those listed in the bibliography of my book. It is hard to determine with certainty the reason for the preservation of these particular regulations in preference to others, though one would imagine that this has to do partially with their ongoing relevance for future generations of ecclesiastical administrations. The fact that not everything, perhaps most, of what has been put down actually survived is of course a major challenge for modern researchers. Unlike social scientists, for example, historians do not possess exact statistics or records as to the volume of circulation of these documents. At the end of the day, much of our conclusions should be accepted with caution and reservation. 

Some of the ways I tried overcoming this were by looking simultaneously at two religious groups rather than one. The common features that were shared by Christian and Jewish communities under Islamic rule allow a comparative analysis which helps to fill in historical gaps. Another way is to amplify the legal discussion through the inclusion of other forms of historical data, be it other literary genres or archeology. Last but not least, my approach has also been to implement some of the more recent discussions in legal anthropology dealing with legal pluralism, the plurality of judicial institutions, and the social dynamics this plurality entails.

AD: What led you especially to focus so much on the East-Syrian and West-Syrian Churches?

In contrast to the Byzantine Orthodox, Coptic, and Maronite Churches, these are the only churches for which legal materials of significant scope from the early Islamic period have survived. Also, it should be noted that the Jewish literary component of this study, geonic responsa, had originated from the very same region.

AD: Your introduction begins by noting the notion of dhimmitude, which is a notion that seems to attract a good deal of attention lately, some of it from rather tendentious or polemical sources. Briefly describe that concept as your research has disclosed it and you have analyzed it.

Actually I avoid referring to the term, which I believe was mainly inspired by Bat Ye’or’s work and which I don’t find very rewarding methodologically. The principal point which I try to make is that rather than considering the history of non-Muslim communities through questions related to their status under Islam, a more fruitful analysis can be achieved by taking into account their relations with their extra-confessional environment. These relations were not necessarily based on principles of communal demarcation or in the context of an exclusively hierarchically structured setting.

The application of the legal-anthropological paradigm of legal pluralism at the center of this book casts new light on the rich matrix of social commitments that had informed the lives of groups and individuals in the early Islamic period. The paradigm, which takes the existence of a plurality of legal orders as indicative of a plurality of social orders, has enabled me to revisit some of the older presuppositions in modern scholarship which tended to view Jewish and Christian communities through a paradigm of social autonomy, segregated by choice from their external environments.

AD: You refer at one point to the role of Arabic in coming to shape a shared cultural orientation. That was true--and still is true today--for many Eastern Christians (Melkites, Copts, and others), but was it equally true for Jewish communities as well?

Certainly, the documents found in the Cairo Geniza attest to this. Both private and formal correspondences were conducted in an Arabic dialect known as Judaeo-Arabic that was mostly written in Hebrew script. S.D. Goitein’s monumental study, A Mediterranean Society, is based on his close reading of thousands of such documents for writing the history of Near Eastern and Mediterranean Jewish communities in the High Middle Ages. Goitein’s studies, as also those of other Geniza scholars, make a very strong point about the shared linguistic and normative culture of Jewish communities under Islamic rule.  Combined with their close attachment to Jewish law and mores, these Jews (including those in Sicily and the Iberian Peninsula) were able to communicate with each other in the context of a Judaeo-Arabic culture that had transcended both physical and political boundaries.

AD: It is often said that many Eastern Christians take canon law far less seriously than Latin Christians did and do, the former often regarding canons more often as mere suggestions that can be ignored or applied at will. What evidence did your research unearth of Eastern Christian attitude towards canons and laws, and to following them?

To the best of my knowledge there is not much direct evidence indicating the attitudes of Christian laymen towards canon law. I’m inclined to believe, however, that the Christians discussed in this study did take ecclesiastical regulations quite seriously. My assumption is based on the considerable efforts on the part of ecclesiastical leaders to put down regulations, the high frequency of synodical assemblies in which canon laws were issued, and the vivid historical image which emerges from canon laws, suggesting that they were designed to address contemporaneous concerns.

In the introduction of my book I address this question to some extent, referring the reader to the conclusion of the acts of a West Syrian synod of 1153, where we find instructions as to who should be informed of its canons: 

“We determine and decree, we, all the bishops, and the synod that has been gathered . . . that for the renewing of the church every year in the Teshris [Oc­tober or November], these canons shall be read before the people. [This takes place] while all are gathered in the church and they shall hear the canons, and they shall renew these canons by the renewing of the church. There is no authority from God that bishops or priests or deacons may neglect them and leave them without reading.”

AD: As you may know, reform of Eastern Orthodox canon law--including its codification--in the modern period has been a desideratum for at least a century, but has not happened. As a result, many canons are out of date, ignored, or irrelevant--but never updated. In the periods you were researching, was there such a sluggish and "conservative" approach to law, or was there more dynamic openness to finding creative legislative solutions to current problems?

My point about the incorporation of civil law into the ecclesiastical legal system, I believe, suggests a rather bold endeavor on the part of ecclesiastical jurists to reform it. While regulations of a civil legal nature are attested in East Syrian records dating back to the fifth century and on, the extant evidence should allow us to conclude that a serious and comprehensive effort of this sort took place only after the Islamic takeover, specifically in the eighth and ninth centuries. As I argue in the book, church leaders were concerned with the fact that Christians were taking their lawsuits outside the church. They realized this was partially triggered by the absence of regulations pertaining to such matters as matrimonial and divorce arrangements, inheritance, business transactions, and so forth. Consequently, a broad set of legal principles, which, to some extent, can be identified as being of Sasanian and Roman background, were placed alongside religious regulations within a uniform legal codification. This was clearly a very dramatic shift, which no doubt is to be accounted for by a very dramatic social change.

AD: You note that in Palestine, the Transjordan, and Egypt, it seems that Eastern Christian communities carried on relatively unscathed after the Arab conquests. When and how did this begin to change?

On the long run, Islamic rule entailed quite a few dramatic consequences for the Eastern Churches. To begin with, the Byzantine Orthodox (so-called Melkites) could no longer enjoy the state patronage to which they were accustomed under Late Roman rule. In addition, the withdrawal of the Roman state and its emperor from the scene of inter-denominational affairs signaled the final pull out of the Miaphysites (Syrian Orthodox and Copts in particular) from the ongoing endeavor to bring about Christological unity, thus laying down the foundations for independent ecclesiastical hierarchies. In other words, the submission of Eastern Christians to the nascent Islamic state served as an important trigger for furthering ecclesiastical divisions throughout the Near East.

Conversion to Islam, although gradual and slow, is likely to have had the ultimate effect of decline in the size and vitality of Christian communities. What may have encouraged this process and should be seen as a significant development in itself was the fact that church officials and monasteries were no longer able to enjoy the privilege of evading taxation. Consequently, not only did the churches suffer from a diminished capacity to offer social services to their laity, but they also opened their doors to individuals of questionable reputation who were able to gain access to ecclesiastical ranks through material means. These developments are attested in the legal and historiographic sources early on in the period after the conquest, yet the materialization of their effects was not immediate or total.

AD: You recognize differences in laws, noting that Islamic and Jewish laws "encompass religious as well as civil questions [whereas] Christian law, at least in its formative stage, was restricted to religious concerns." What does that tell us about the similarities and differences in these three faiths?

It is worth recalling that unlike Judaism and Islam, Christianity did not emerge as a theocratic system, but rather as one which gradually became that of an existing empire. It is in this context that we ought to understand “Render to Caesar the things that are Caesar's, and to God the things that are God's” (Matt. 22:21). Under the Christian Roman Empire, at least at first, temporal affairs were to be brought before secular judges. Only later, most notably beginning in the fifth century, episcopal courts were entrusted by the state with an overlapping jurisdiction, yet nonetheless, the law was Roman not ecclesiastical. Once Christians fell under non-Christian rule, as was initially the case of the Church of the East (so-called Nestorians), and later also that of other churches falling under Islamic rule, there became a need for developing ecclesiastical regulations in the realm of civil law. The background, then, should be seen from a historical perspective rather than a theological one.

AD: You note that for some Eastern Christians under Islamic domination the Church comes to be perceived as "an administrative cog meant to serve the needs of an Islamic bureaucracy, rather than an autonomous entity dominated by the saints" (117). Was that a widespread perception?

To an extent, this perception may have sprung already before the Islamic takeover. As is well known, an important aspect of the Christianization of the Roman Empire was the gradual rise in power of bishops as civil administrators. It is hard to measure the popularity of such perceptions, yet it would seem that it was precisely this nature of the episcopal office which was exploited by its adversaries within Christian communities. One may think in this context about those church regulations that emphasize the holy office of the bishop along others which seek to invalidate the authority claimed by monks and holy men.

AD: Sum up the main themes of the book for us

The book offers a new approach to the study of the history of Christians and Jews under Islamic rule. Rather than focusing on the question of non-Muslim status and Islamic tolerance, it seeks to sidestep these questions and present an alternative historiographic approach. According to this approach, Near Eastern societies should be perceived in a much more dynamic fashion, reflecting a complex matrix of interpersonal ties which transcended confessional circles. Historiographically, it brings to the fore issues of direct relevance to late antique and medieval Near Eastern religious communities. At the same time, by looking at the manner in which Christian and Jewish religious elites responded to the appeal of their coreligionists to extra-confessional judicial systems the book also treats questions of wider scale, namely elite agendas and the means for their advancement, legal pluralism in pre-modern societies, and the merging of Islamic rule and Near Eastern social cultures. Broadly speaking, the book argues that under Islam the corporate features of the late antique Graeco-Roman world and of the parallel agnatic Sasanian system gradually dissolved. Instead, it was the non-corporate character of Islamic rule that cleared the way for a pre-existing complex social environment in which the individual was tied to a multiplicity of social affiliations.