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

Commercial Forms and Legal Norms in theJewish Community of Medieval Egypt

PHILLIP I. ACKERMAN-LIEBERMAN

Introduction: The Relationship of Quotidian Life and the Law

Scholars agree that medieval Jewish legal writers responded to “the needsof the times” in making their legal rulings, carefully choosing the legalsources and precedents upon which they relied, rereading or even rejectingthose sources in light of their quotidian reality.1 Particularly in the Geonic

Law and History Review November 2012, Vol. 30, No. 4© the American Society for Legal History, Inc. 2012doi:10.1017/S0738248012000685

Assistant Professor of Jewish Studies and Law; and Affiliated Assistant Professor of IslamicStudies and History, Vanderbilt University. I wish to express my gratitude to colleagues in anumber of fora for their insights: my colleagues in the Skirball Department of Hebrew andJudaic Studies at New York University, at the Legal History Colloquium at New YorkUniversity Law School, and at the Jewish Law Association, before all of whom I presentedearlier versions of this paper; four anonymous reviewers who provided invaluable feedbackas the paper took shape; and to Professor David S. Tanenhaus for his insights and assistanceas editor of Law & History Review.

1. The manner in which legal writers responded to “the needs of the time” is subtle. Theclassical discussion in this area is certainly that of Haym Soloveitchik, who focuses onJewish legal decision making in medieval Europe. Soloveitchik argues that “nothingcould be farther from the mind of any religious person, not to mention a man of theMiddle Ages, than an attempt of set purpose to align a divine norm with temporalneeds.” (Haym Soloveitchik, “Can Halakhic Texts Talk History?” AJS Review 3 (1978):174). However, he points out that “under certain specific conditions, circumstances didplay a role (if only mediately) in the birth of ideas.” That social and economic pressuresforced legal change within the Jewish community of the medieval Islamic world is notedby Robert Brody, who describes actual legislative innovations on the part of the Geonimof Babylonia in order to accommodate their circumstances; see Robert Brody, TheGeonim of Babylonia and the Shaping of Medieval Jewish Culture (New Haven: YaleUniversity Press, 1998), 62–64. Gideon Libson’s study of geonic custom (Gideon Libson,Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period,Harvard Series in Islamic Law [Cambridge, MA: Islamic Legal Studies Program ofHarvard Law School, 2003], 25ff) points out instances in which various Geonim vindicatedcustom by recourse to biblical sources, even where that custom ran counter to Talmudic law.

Period,2 as Talmudic norms encountered a geographically expansive com-munity experiencing radical social transformations in the engagement withIslam, as well as rapid economic development concomitant with the rise ofthe ʿAbbāsids, which urbanized and transformed the economic life ofthe Jewish community,3 classical sources of Jewish law faced new

Libson explains that the modification or suppression of an existing law to accommodate cus-tom would sometimes be effected with a legal sleight of hand: referring to Nat

˙ronai Gaon

(middle/late ninth century), Libson writes that “[s]ometimes, to ease the replacement of an ear-lier law by a custom, he posits a basis other than suggested by other geonim. For example, heattributed the nullification of the ketubbat benin dikhrin to the inability to carry out valid assess-ments rather than to the increase in dowries providing adequate sustenance for daughters.”(Libson, Jewish and Islamic Law: A Comparative Study of Custom during the GeonicPeriod, 30) In this case, Nat

˙ronai struck down existing law on procedural grounds in order

to vindicate what happened to be a custom. Likewise, Libson writes of Hai Gaon (d.1038),that “he obscures a possible contradiction between the Talmud and custom, interpreting theTalmudic text in such a way as to explain away the contradiction and thus embedding the cus-tom in the law, without intimating that his particular interpretation is in fact guided by custom;he is therefore able, in practice, to reject Talmudic law in favor of custom.” (Libson, Jewish andIslamic Law: a Comparative Study of Custom during the Geonic Period, 33) Although, accord-ing to Libson, custom was not generally incorporated into legal decisions through emending theTalmudic text, (Libson, Jewish and Islamic Law, 33). Geonic authorities may have been helpedby natural shifts in semantic signifiers from the Rabbinic to the Geonic period, which wouldhave allowed them to align custom with their reading of Talmudic literature. With specific refer-ence to Maimonides, Gerald J. Blidstein asks, “[t]o what degree does Maimonides’ work con-sciously respond to its time?” (Gerald J. Blidstein, “Where Do We Stand in the Study ofMaimonidean Halakhah?” in Studies in Maimonides, ed. Isadore Twersky [Cambridge, MA:Harvard University Press, 1990], 27) He responds that “. . .Maimonides’ Code responds to con-temporary realities when they can be related to Biblical-Talmudic institutions or, put differently,when they bear on norms found in the traditional literature before him, when they can becomepart of an interpretative process.” (Blidstein, “Where Do We Stand in the Study ofMaimonidean Halakhah?,” 27–28).2. The term “gaon” refers to the rabbinic authorities of the yeshivot (Hebrew, “academies”)

of Babylonia and the Land of Israel, who held sway over Jewry in Islamic lands (that is,numerically, the vast majority of world Jewry) from the sixth century to roughly the middleof the eleventh, following the close of the Babylonian Talmud. For a discussion of this per-iodization, see Brody, The Geonim of Babylonia and the Shaping of Medieval JewishCulture, 3–18.3. For a discussion of the economic transformations that underpinned the urbanization of

Jewish life, see S. D. Goitein, Jews and Arabs, their Contacts through the Ages (New York:Schocken Books, 1955; reprint, 1974), 101–5. Brody also sees “the shift from an agrarian toan urbanized, commercial society,” which necessitated some modifications in Jewish law andlife (Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 63).Norman Stillman discusses the effects of these changes on the economic role of the Jewish com-munity; see Norman A. Stillman, The Jews of Arab Lands: a History and Source Book(Philadelphia: Jewish Publication Society of America, 1979), 29. Marina Rustow carefully dis-tinguishes between the effects of urbanization and westward migration; see Marina Rustow,

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pressures.4 Geonic leaders responded to these pressures by makingrecourse to the traditional institutions of taqqana (Hebrew, “legislativeenactment”)5 and minhag (Hebrew, “custom”).6 Therefore, it is widelyaccepted that the vicissitudes of daily life influenced both the responsaof the Geonim7 and their contributions to the expanding codificatory litera-ture.8 On the other hand, the potential influence of Jewish legal normsupon daily life remains an unsettled area in the study of the history ofthe premodern Jewish community. A paucity of documentary or archaeo-logical evidence complicates this problem, and edited literary texts of var-ious genres remain themselves among the most important witnesses toJewish life in the period.This article will seek to transcend earlier studies showing the mutability

of law in light of daily life, adding to the discussion by revealing thatJewish legal norms also played an influential role in determining quotidianpractice. The article will focus on rabbinic legal materials from late anti-quity and their reception through the Geonic community and itsRabbanite constituents in medieval Egypt, and will turn to the historicalwitnesses of the Rabbanite community, which have emerged as furtherdocumentary evidence has come to light. The documents of the CairoGeniza9 provide the historical evidence for the relations between normsand practice within the Rabbanite Jewish community of medieval

Heresy and the Politics of Community: the Jews of the Fatimid Caliphate (Ithaca: CornellUniversity Press, 2008), 5, and places the latter in the tenth century.4. Brody (The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–64)

and Libson (Libson, Jewish and Islamic Law) both allude to these pressures and the legaldevelopments which they precipitated.5. For a discussion of the taqqana in the Geonic Period, see Menachem Elon, Jewish Law:

History, Sources, Principles (Philadelphia: Jewish Publication Society, 1994), 643ff.. Brodyalso discusses legislative enactments of the Geonim in Brody, The Geonim of Babylonia andthe Shaping of Medieval Jewish Culture, 62–64.6. Libson discusses the influence of Islamic law on Jewish law in the Geonic Period in

Jewish and Islamic Law: a Comparative Study of Custom during the Geonic Period, makingparticular reference to custom “as the prime channel through which such influence flowed.”(Libson, Jewish and Islamic Law: a Comparative Study of Custom during the GeonicPeriod, ix).7. Brody discusses the responsa literature generally in The Geonim of Babylonia and the

Shaping of Medieval Jewish Culture, 185ff..8. For a general discussion of the codificatory literature of the Geonim, see Elon, Jewish

Law: History, Sources, Principles, 1149ff.9. See pages 7–9 below for a further discussion of the Geniza sources. For an introduction

to the Geniza and a brief survey of its contents, see S. D. Goitein, A Mediterranean Society:the Jewish Communities of the Arab World as Portrayed in the Documents of the CairoGeniza, 6 vols. (Berkeley: University of California Press, 1967), I:1–28.

Commercial Forms and Legal Norms in the Jewish Community 1009

Egypt10, a legally pluralistic environment in which litigants had access toboth Jewish and Islamic courts.11 The choice of members of this commu-nity to bring their proceedings to Jewish courts will, therefore, be seen asdeliberate. Furthermore, a close reading of court practice as described inthe Geniza documents will reveal the decision of Jewish economic actorsto structure their relationships according to Jewish legal norms to be no lessdeliberate. In an environment of competing canonical legal norms, whichincluded several gradations among the various orthodox schools ofIslamic law as well as those of Jewish law, the survival of a significant cor-pus of legal agreements in the Geniza reflecting the typology of economicpartnership models seen in Jewish law that deviate from correspondingmodels seen in Islamic law12 can even be seen as a vehicle for expressingJewish communal self-consciousness in the economic domain. First reca-pitulating the approaches of other scholars—notably Abraham Udovitch

10. Throughout this paper, the word “Rabbanite” will be used to refer to the segment ofthe Jewish community which “considered themselves bound by the accumulating corpus ofpostbiblical tradition contained in classical rabbinic literature and its commentaries.”(Marina Rustow, Heresy and the Politics of Community (Ithaca: Cornell University Press,2008), xv) For a discussion of the historiography of the political/religious landscape ofthe Jewish community of medieval Egypt, see Rustow, Heresy and the Politics ofCommunity, especially pp.xv-xxxiii and 3–35.11. That Jewish litigants had access to Islamic courts throughout the medieval period is

well established: Brody hints at the importance of this access in Babylonian in TheGeonim of Babylonia and the Shaping of Medieval Jewish Culture, 62–63; see alsoLibson, Jewish and Islamic Law: a Comparative Study of Custom during the GeonicPeriod. As for medieval Egypt, see Goitein, A Mediterranean Society: the JewishCommunities of the Arab World as Portrayed in the Documents of the Cairo Geniza,I:398–402. In fact, Geniza documents do periodically include the phrase “Arabic document”(“kitāb ʿarabī”) which was likely a document from an Islamic court; see, for example, TS16.138, a partnership dissolution agreement from the rabbinical court in Alexandria dated1138 CE, for which the partnership itself was just such a document. Further allusions tosuch documents come from letters and legal documents alike: see TS 13 J 20.26 (a letterfrom Alexandria, dated 1062 CE), TS 12.134 (from late eleventh/early twelfth centuryTyre); Bodl Ms Heb b 3.7 (dated 1232 CE); and Bodl Ms Heb d 66.88 (from Cairo, ca.1095 CE). As Gil mentions with respect to the latter document (cf. Moshe Gil,Documents of the Jewish Pious Foundations from the Cairo Geniza (Leiden: Brill, 1976),219 n.5), not all transactions effected in Muslim courts were treated as valid by Jewishauthorities, but the possibility of forum shopping cannot be gainsaid, and these documentsattest to it.12. My dissertation project, Phillip I. Ackerman-Lieberman, “A Partnership Culture:

Jewish Economic and Social Life Seen through the Legal Documents of the CairoGeniza” (Phd diss., Princeton University, 2007), brought to light just such a corpus, editingmore than 100 heretofore unpublished legal documents from the Geniza concerning econ-omic partnerships and demonstrating a general correspondence between the partnershiprelations described in those documents and the typology of partnership established byMaimonides in the Mishneh Torah.


and Avner Greif—to the economic relations of Jewish merchants in themedieval Islamic Mediterranean, both of whom hold that classicalJewish legal codes were not in fact determinative of commercial practicein the environment that produced the Cairo Geniza documents, I willsketch out the complex dialogue between canonized legal norms and com-mercial practice. The center of this dialogue will be shown to have been alegal system relying heavily on a process of mediation that educated Jewisheconomic actors as to the norms of Jewish law, and encouraged them toalign their commercial practice with those norms.Thus, I will then turn to a summary of contemporary mediation theory,

in order to reveal a number of models for the relationship between canoni-cal legal norms and actual mediated agreements; and the procedural detailsof court practice in Jewish medieval Egypt will be measured against thesemodels. Revealing court practice to follow a “norm-educating” model, thedocumentary output of the Jewish court will be shown to be in dialoguewith canonical Jewish legal norms. Although much ink has been shedby other scholars revealing ways in which the Mishneh Torah and otherclassical Jewish legal works were influenced by forces emerging fromtheir quotidian environment, causing their writers to incline toward oneor another Talmudic ruling or even to do violence to the Talmudic textitself in order to accommodate quotidian practice, I will demonstrate thatpositive law had a corresponding determinative influence on that environ-ment, affecting the choices of Jewish economic actors as they opted tostructure their relationships according to Jewish norms, which themselvesemerged from the classical compendia of Jewish law.The advantage of “norm-educating” models of mediation is that the legal

agreements that they produce do not necessarily accord with all thecodified norms of the system that produced those agreements. Jewishlegal norms influenced commercial practice without completely determin-ing or defining it. This understanding suggests that the choice of Jewisheconomic actors to structure their relationships generally according tothose norms should be seen as a conscious decision. The key role of thecourts as well as the influential role of classical Jewish legal norms in shap-ing and implementing agreements should also suggest the importance ofthe Gesellschaft as opposed to the Gemeinschaft (to use the languageof sociologist Ferdinand Tönnies), challenging the application of“Lawlessness and Economics” literature to the Jewish merchants of the ele-venth century Mediterranean.13 Scholars of this literature have argued that

13. Key scholars in the field of “Lawlessness and Economics” include Avinash K. Dixitand Diego Gambetta, who, like Greif, turn to extralegal institutions to govern economic and


coalitions of merchants turned to local subgroup norms to define their ownbehavior, which was then monitored outside the formal legal system.14

Instead, I will show that classical Jewish legal norms compiled in theMishneh Torah15 shaped Jewish economic relationships and Jewishidentity.

Commercial Law and Mercantile Practice: Previous Studies

Any analysis of partnership relations in the medieval IslamicMediterranean and the connection between commercial law and practicemust take as its starting point Abraham Udovitch’s seminal 1970 workPartnership and Profit in Medieval Islam. Turning to business lettersfrom the Cairo Geniza concerning mercantile partnerships, Udovitch con-cludes that “[w]hen compared, a remarkable symmetry becomes evidentbetween the legal formulations of the late eighth century on the one

social behavior. The terms “Gesellschaft” and “Gemeinschaft” are used in this article,despite the fact that they are not used by Greif and his interlocutors, because Greif’s discus-sion of “individualist” and “collectivist” societies blurs what Greif nonetheless seems tounderstand as the source of group-specific behavioral norms for the Maghribi traders.Although Greif asserts the existence of an “endogenous partition” between the Maghribisand the rest of the society in which they find themselves (Avner Greif, “CulturalBeliefs and the Organization of Society: a Historical and Theoretical Reflection onCollectivist and Individualist Societies,” Journal of Political Economy 102 [1994]: 942),his use of the term “collectivist” applies to the entire society and actually says nothingabout the source of the Maghribis’ specific group norms. I do not intend to argue that nosuch “endogenous partition” existed, but only that it existed more broadly between Jewsand Muslims, as the Jewish court system educated Jewish merchants as to the norms accord-ing to which members of the court would encourage Jewish merchants to structure theirrelationships. Thus, Tönnies’ language of Gesellschaft and Gemeinschaft better points tothe central tension that I wish to address in this article.14. This scholarship will be discussed on pages 9–11 below; the most prominent represen-

tative of this view is Avner Greif, who began his studies of these traders in his MA thesis andhis PhD dissertation (Avner Greif, “The Organization of Long-Distance Trade” [PhD diss.,Northwestern University, 1989]).15. Although the Mishneh Torah itself does not emerge until the late twelfth century,

while many of the Geniza documents and agreements discussed in this article emerged inthe eleventh (and, on rare occasion, in the tenth) century, the clarity of Maimonides’ typol-ogy of partnership in the Mishneh Torah makes it an attractive yardstick by which to evalu-ate the implementation of Talmudic norms by the North African Jewish community, whichhappened to live in and directly before the period of its composition. However, this articlewill make regular reference to the ninth century Babylonian Halakhot Gedolot and the ele-venth century North African Halakhot Rabbati of Isaac Alfasi in order to highlight for thereader the precise precedents to which jurists of the eleventh and early twelfth centurieswould have been exposed.


hand, and the documented commercial practice of the eleventh and twelfthcentury Geniza merchants on the other.”16 Udovitch’s analysis of the par-allels between commercial letters and Islamic commercial codes vindicatedhis predecessor Joseph Schacht’s reading of Islamic law as both reflectingand accommodating commercial practice.17 Udovitch even describedH˙anafī law as a “medieval Islamic Law Merchant.” This term is clearly

apposite given that H˙anafī law is the most developed and flexible of the

four major Sunnī schools, and therefore most broadly capable of vindicat-ing custom (Arabic, ʿurf) in order to establish positive law. In the absenceof any “religious or moral principle”18 governing commercial practice, theH˙anafī lawyers were free to develop legal devices that accommodated—

indeed, canonized—a local practice encountered by Islamic conquestover the course of the seventh century, despite the fact that this local prac-tice may have diverged from behavioral norms envisioned by the earlyIslamic conquerors themselves.19

Although he lacked commercial documents from medieval Islamic mer-chants, Udovitch did have a corpus of documentary evidence to which hecould turn in order to bolster his claims concerning commercial practice:the Cairo Geniza. This treasure trove of documents, which began toenter the hands of scholars in the middle of the nineteenth century andhad by Udovitch’s time begun to receive systematic treatment, particularlyby the twentieth century doyen of Geniza studies, S.D. Goitein, includesfragments representing a multitude of genres, from classical biblical andrabbinic texts to pages on which children had practiced writing theHebrew script, to eleventh century petitions to the Fāt

˙imid caliph written

in Arabic. With the rise of Arabic as the lingua franca among theJewish community of the southern Mediterranean and the Levant in thecenturies following the Islamic conquests, Jews produced documents in

16. Abraham L. Udovitch, Partnership and Profit in Medieval Islam, Princeton Studies onthe Near East (Princeton: Princeton University Press, 1970), 255–56.17. Thus, Schacht writes that “[t]he law of contracts and obligations. . .was ruled by a cus-

tomary law which respected the main principles and institutions of the sharīʿa, but showed agreater flexibility and adaptability.” (Joseph Schacht, “The Schools of Law and LaterDevelopments of Jurisprudence,” in Law in the Middle East, ed. Majid Khadduri andHerbert J. Liebesny [Washington, D.C.: Middle East Institute, 1955], 77–78).18. Udovitch, Partnership and Profit in Medieval Islam, 7.19. Jeanette Wakin discusses another case of this phenomenon, the development of for-

mulary literature in the early Islamic world; she notes that “[w]hile doctrine may have neg-lected the written instrument, in practice it was indispensable.” (Ah

˙mad ibn Muh

˙ammad

T˙ah˙āwī and Jeanette A. Wakin, Jāmiʻ al-kabīr fī al-shurūt

˙. The Function of Documents in

Islamic Law: the Chapters on Sales from T˙ah˙āwī’s Kitāb al-shurūt

˙al-kabīr. Edited with

an introduction and notes by Jeanette A. Wakin (Albany, NY: State University ofNew York Press, 1972), 9).


Judeo-Arabic, a “middle-Arabic” written in Hebrew script often pepperedwith Hebrew and Aramaic idioms from the rabbinic argot. The so-called“documentary Geniza”, containing documents from all walks of life, rep-resents one tenth of the Geniza trove as a whole or perhaps even less,which is overwhelmed by fragments of classical rabbinic sources; however,this alone represents a corpus of more than 15,000 fragments of paper.20

However, despite Goitein’s attestation that “[t]he largest and most valuablegroup of Geniza documents is made up of court depositions,”21 Goitein’sown attention, as well as that of Udovitch, was focused overwhelmingly onletters. Although the first volume of Goitein’s A Mediterranean Society diddiscuss a number of legal agreements concerning commercialcooperation,22 Goitein and Udovitch both turned primarily to letters fortheir depictions of economic life. Unfortunately, however, much of thespecific detail concerning commercial cooperation, such as the plannedallocation of profit and loss between partners, is entirely absent from com-mercial letters, which typically include such vague phrases as “[f]or ourjoint business, too, make an effort and buy whatever you see fit of flaxand spices.”23 Indeed, it is only where Udovitch turns to Goitein’s analysisof the small collection of legal documents that the latter did examine,24 thatUdovitch concludes that “[m]ost arrangements. . .involved complex pat-terns of distribution of investments, work, risks, and profits among the par-ties to a partnership or commenda.”25 Amidst a Judeo-Arabic corpus thatalludes to partnerships, agency agreements, brokerage, and commendaoften using the Arabic terms recognizable from fiqh (Islamic legal)

20. Goitein explains that “[i]f we exclude the many thousands that are mere scraps ofpaper, we arrive at the number of about 10,000 items of some length” (Goitein, AMediterranean Society: the Jewish Communities of the Arab World as Portrayed in theDocuments of the Cairo Geniza, I:13); including these “mere scraps,” the total is likely clo-ser to 15,000 (as per Rustow, Rustow, Heresy and the Politics of Community: the Jews of theFatimid Caliphate, xx). As for the size of the Geniza as a whole, current estimates are in therange of 280,000 pages, though the actual number may well be significantly higher. (cf.Rustow, Heresy and the Politics of Community: the Jews of the Fatimid Caliphate, xx n.3)21. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:10.22. See, particularly, Appendix C, “Industrial Partnerships”, ibid., pp. 362–367.23. S.D. Goitein, Letters of Medieval Jewish Traders (Princeton: Princeton University

Press, 1974), 141.24. Goitein explains that “[i]n our book, A Mediterranean Society, we have studied

twenty-six contracts of industrial partnership, many of which are nothing but veiled formsof employment. . .” (S.D. Goitein, “Commercial and Family Partnerships in the Countriesof Medieval Islam,” Islamic Studies 3 (1964): 317). By comparison, Letters of MedievalJewish Traders contained translations of approximately 80 commercial letters, a small frac-tion of the epistolary corpus that was the primary basis for A Mediterranean Society.25. Udovitch, Partnership and Profit in Medieval Islam, 257.


compendia, Udovitch claims that “[t]hose aspects of commerce whichloomed large for the Geniza merchants are exactly those to which thelegal texts devote lengthy and detailed discussions,”26 leading to his con-clusion that Islamic law—and not Jewish law—represented nothing more(and nothing less) than a record of commercial practice.The detail that Udovitch gathered from that “record of commercial prac-

tice” led him to conclude that most commercial cooperation was conductedon the basis of ties that “had no specific shape or content”27 but insteadrelied on quid pro quo transactions that were fulfilled by associates relyingon mutual trust built over the course of longstanding relationships. Theserelationships were also bilateral and dyadic, through which each individualcould be seen as the focal point from which many dyadic ties extended out-ward.28 Importantly, the expectations of these relationships were notnecessarily articulated explicitly, and relationships were managed throughthe 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 was developedmore fully by the economist Avner Greif.29 Unlike Udovitch, who sawrelationships as negotiated through personal guarantee and trust, Greifsaw these relationships—or, at least, the punishment mechanism that gov-erned these relationships—to be multilateral and to be defined by a specificcommunity of traders. That is, whereas a principal–agent relationship wasmaintained at the level of the node, between two individuals, a principalwould express his dissatisfaction with any particular agent in his lettersto his other associates, and this dissatisfaction would thereby be communi-cated to the group as a whole. According to Greif, members of the group asa whole would show common cause with their fellow by shunning the erst-while agent, agreeing never to employ an agent who cheated while operat-ing for any coalition member.30 In an environment in which the legalsystem was expensive, slow, or generally inaccessible, this multilateralpunishment structure could provide a framework that made for an efficient

26. Ibid.27. Abraham L. Udovitch, “Formalism and Informalism in the Social and Economic

Institutions of the Medieval Islamic World,” in Individualism and Conformity in ClassicalIslam, ed. Amin Banani (Wiesbaden: Harrassowitz, 1977), 64.28. Cf. Ibid., 78, discussing the eleventh century merchant and communal leader Nahray

b. Nissim: “Nahray was thus the nodal point of several networks in a system in whichrelationships were highly individual and nontransitive.”29. See, for example, Greif’s doctoral dissertation, Greif, “The Organization of

Long-Distance Trade.”30. Thus, “an agent who considers cheating a specific merchant risks his relations with all

the coalition members” (Avner Greif, “Reputation and Coalitions in Medieval Trade:Evidence on the Maghribi Traders,” Journal of Economic History 49 [1989]: 868).


wage and provided the agent with a disincentive to cheat.31 Greif saw asomewhat tight-knit group of eleventh-century traders, whom (followingGoitein) he calls the “Maghribīs,” placing the center of their network inthe Maghreb (that is, central North Africa), although he seems unwillingto describe this as a subculture per se, and he rejects Werner Sombart’sreliance 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 allu-sion to the self-description of these traders as “as

˙h˙ābunā, our col-

leagues.”32 Supporting Greif’s understanding that the Maghribīsestablished a distinct group in the eleventh century Mediterranean tradeis his claim that evidence of cooperation with non-Maghribī traders bymembers of this group is rare, and that connections within the groupwere often sustained for multiple generations.33 Whereas Udovitchdescribed these connections as intensely personal and non-inheritable,Greif describes relations as extending to the group as a whole, which estab-lished 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 theenforcement of property rights and the management of contracts in lightof the ineffectiveness or absence of a structured legal enforcement mech-anism. Greif suggests that this subgroup maintained distinctive ex-ante be-havioral norms (defining, for example, what exactly “cheating” is) that didnot extend beyond that specific group. Therefore, Greif writes that “[b]ydiscouraging intercoalition agency relations, these factors make the expec-tations on which the coalition rests self-enforcing. Hence, once a coalitionis formed through some historical process, agency relations will be estab-lished only among the traders for whom expectations were initiallycrystallized.”34

One consequence of this, according to Greif, is that the expectationsof the coalition were transmitted intergenerationally, insuring that the

31. Ibid., 866–68.32. Udovitch, “Formalism and Informalism in the Social and Economic Institutions of the

Medieval Islamic World,” 75.33. Therefore, “... generations after a Maghribi trader emigrated from the Maghrib, his des-

cendants continued to operate in long-distance trade through the descendants of otherMaghribi traders. Evidence of business association between Maghribi traders andnon-Maghribi traders (Jewish or Muslim) is rare.” (Greif, “Reputation and Coalitions inMedieval Trade: Evidence on the Maghribi Traders,” 877).34. Avner Greif, “Contract Enforceability and Economic Institutions in Early Trade: The

Maghribi Traders’ Coalition,” American Economic Review 83 (1993): 539.


coalition consisted only of Maghribīs and their descendants. Presumably,one could only become acculturated to the norms of the group by growingup in that group. Therefore, the source of those norms was the group itself,the small-scale Gemeinschaft, as opposed to the behavioral normsdescribed by the classical legal literature of the (Rabbanite) Jewish com-munity as a whole, representing the broader Gesellschaft. NeitherUdovitch nor Greif would have understood Jewish legal norms to haveplayed a role in the practice of the community of Jewish economic actorsin the medieval Islamic Mediterranean. Examining the epistolary corpus ofthe Geniza, both scholars turn to the dominance of custom in determiningpractice: in Udovitch’s case, it is the custom of the broader (that is, the“Islamic”) marketplace; in Greif’s, it is the custom of the coalition itself.Therefore, Greif writes that “[t]he Maghribi’s code of conduct was a socialnorm, a rule that is neither promulgated by an official source, such a courtor legislator, nor enforced by the threat of legal sanctions but is neverthe-less regularly complied with.”35

Coming from the domain of institutional economics, Ethan Bueno deMesquita and Matthew Stephenson have challenged Greif’s conclusionsby considering the possibility that the coalition and the legal system oper-ated as parallel enforcement mechanisms; however, their study turns toGreif’s analytical model, rather than the Geniza documents that underpinhis conclusions, in order to challenge him.36 On the other hand, JeremyEdwards and Sheilagh Ogilvie have rejected entirely Greif’s reliance onthe multilateral punishment mechanism, examining detail from Genizadocuments to argue that Jewish merchants turned both to Jewish andMuslim courts for conflict resolution.37 Arguing along with these scholarsthat the legal mechanism did play an important role in the management ofmercantile relationships, I will add to their challenges by drawing connec-tions between the conduct of the merchants and the very same “officialsources” that Greif says did not play a role in influencing behavior, byexploring the legal process through which conflicts were resolved andby bringing to light the norms that were implemented through thatprocess.

35. Avner Greif, Institutions and the Path to the Modern Economy (Cambridge:Cambridge University Press, 2006), 59.36. For their study, see Ethan Bueno de Mesquita and Matthew Stephenson, “Legal

Institutions and Informal Networks,” Journal of Theoretical Politics 18 (2006), 40–67.37. For their study, see Jeremy Edwards and Sheilagh Ogilvie, “Contract Enforcement,

Institutions and Social Capital: the Maghribi Traders Reappraised,” in CESifo WorkingPaper #2254 (2008).


Detail from Legal Documents in Light of Jewish and Islamic Law

One problem with the analyses of Udovitch and Greif is that their studiesof Geniza documents rely almost exclusively on epistolary material.Mercantile letters in the Geniza are certainly rich in detail concerningwhat Goitein would call “the subjective aspect of trade, trade as seen bythe people who were engaged in it,”38 often providing exactly the sort ofdetailed information sought by Greif concerning merchants’ satisfactionwith their partners and agents. Letters often also provided lists of commod-ities in which merchants transacted. However, as mentioned, merchants’letters are particularly spare in precisely the sort of detail that wouldallow the researcher to determine the precise nature of the cooperativeenterprise imagined by the counterparties. For example, exactly whatsort of relationship was the “joint business” in the typical Geniza lettermentioned previously?39 In this section of the article, I will challengeUdovitch’s understanding that H

˙anafī law was descriptive of the practice

of the Geniza merchants. This challenge will turn to the legal documentsof the Geniza to demonstrate a general (if incomplete) correspondencebetween the detail seen in the documents and in the forms of economiccooperation seen in classical (Talmudic and Geonic) sources of Jewishlaw, and a corresponding disjunction with the classical sources ofIslamic law. Subsequent sections will challenge Greif’s claim that thesource of norms was the Gemeinschaft, demonstrating that merchantswere educated as to the norms of the Gesellschaft through the court system.In reviewing the Geniza corpus, a telling silence emerges in certain

domains: for example, in surveying legal documents concerning commer-cial life, very few such documents are concerned with agency relations.Whereas commercial letters often ask distant agents to buy or sell specificitems as a wikāla (Arabic, “agency appointment”), Jewish law requires thewriting of an agency appointment40 in but one case: when the agent isretained to collect on a deposit or a debt recorded in a document.41

38. Goitein, Letters of Medieval Jewish Traders, 6.39. See footnote 23 above.40. The discussion focuses on primary agency appointment; Jewish law does require that

an agency appointment document be written when a secondary agent is appointed and forother activities such as acceptance of a divorce decree.41. Cf. Maimonides, Laws of Agents and Partners, 3:1ff. Likewise, the formularies of

Saʿadya Gaon (cf. Menahem Ben-Sasson, “Fragments from “The Book of Testimony andDocuments” of Rabbi Saadiah Gaon,” Shenaton ha-mishpat

˙ha-ʻIvri: shel ha-Makhon

le-h˙eqer ha-mishpat

˙ha-ʻIvri, ha-Universit

˙a ha-ʻIvrit bi-Yerushalayim 11–12, [1983–

1985]) and Hai Gaon (cf. Hai ben Sherira and Simha Assaf, Sefer ha-shet˙arot [Jerusalem:

Azriel Press, 1930]) do not contain a formula for agency appointment, nor does the twelfthcentury French Sefer ha-ʿIt

˙t˙ur (Isaac ben Abba Mari and Meir Jonah Glanovsky, Sefer


Likewise, narrative works of Islamic law do not mention the writing ofagency documents—although Islamic formularies do contain formulaefor agency appointment.42 As Jewish law would have required the act ofqinyan (Hebrew, “act effecting acquisition”) only in the case of debt col-lection, the court would not have been the usual or primary locus of agencyappointment—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 thansuggested by Goitein’s list of 2743 “industrial partnerships.”44 A cursorysurvey of unpublished documents from the Geniza corpus reveals at leastthat number of heretofore unpublished partnership agreements, as well asat least twice that number of legal documents dissolving partnerships orindemnifying erstwhile partners from any future obligations relating totheir partnership.45

The fact that legal documents were written concerning partnership saysnothing about the norms that they embody, nor does it say anything aboutthe relationship of classical Jewish or Islamic legal codes to the partner-ships described by those documents. In fact, if the legal documents had

ha-ʻIt˙t˙ur [Jerusalem: s.n., 1969], 98ff.). The documents from eleventh century Lucena pub-

lished by Joseph Rivlin reflect a concern with debt collection (cf. Joseph Rivlin, Shit˙re qehi-

lat al-Yusana: min ha-meʾa ha-ah˙at-ʻeśre [Ramat Gan: Hos

˙aʾat Universit

˙at Bar-Ilan, 1994],

169ff.).42. Ibn Rushd’s material on agency in the Bidāyat al-mujtahid does not even allude to the

writing of agency documents (cf. Averroës, Bidāyat al-mujtahid wa-nihāyat al-muqtas˙id, ed.

ʿAbd al-H˙akīm b. Muh

˙ammad, 2 vols. [Cairo: al-Maktaba al-Tawfīqiya, n.d.], II:457–61);

nor does the H˙anafī jurist al-Qudūrī (al-Qāsim ibn ʻAbd Allāh Ibn Qut

˙lūbughā, D

˙iyāʾ

Yūnus, and Khalīl Mays, al-Tas˙h˙īh˙

wa-al-tarjīh˙

ʻalá mukhtas˙ar al-Qudūrī [Beirut: Dār

al-Kutub al-ʻIlmīya, 2002], 272–78). As Wakin points out, early Islamic doctrine eschewedthe use of written documents in general (cf. T

˙ah˙āwī and Wakin, Jāmiʻ al-kabīr fī al-shurūt

˙.

The Function of Documents in Islamic Law: the Chapters on Sales from T˙ah˙āwī’s Kitāb

al-shurūt˙al-kabīr, 4). For Islamic formularies that contain formulae for agency appointment,

see Ah˙mad ibn Mughīth S

˙adafī and F. Javier Aguirre Sādaba, al-Muqniʻ fī ʻilm al-shurūt

˙(Madrid: al-Majlis al-Aʻlā lil-Abh˙āth al-ʻIlmīya, 1994), 289ff.; and Ah

˙mad ibn

Muh˙ammad T

˙ahāwī and Ūzjān Rawh

˙ī, al-Shurūt

˙al-s˙aghīr (Baghdad: Ih

˙yāʾ al-turāth

al-Islāmī, 1974), II:598ff.).43. Goitein’s aforementioned article (cf. footnote 24 above) mentioning 26 partnerships

preceded publication of the first volume of his A Mediterranean Society, in which he detailed27 partnerships.44. Cf. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I: Appendix C.45. See the second volume of my dissertation, Ackerman-Lieberman, “A Partnership

Culture: Jewish Economic and Social Life Seen through the Legal Documents of theCairo Geniza,” for transcriptions and translations of more than 100 heretofore unpublishedGeniza documents concerning economic partnerships, including some that were describedby Goitein in the aforementioned appendix.


reflected partnership models seen in Islamic law, this analysis wouldsimply bolster and even extend Udovitch’s claim that H

˙anafī law was a

“medieval Islamic Law Merchant” to include Jewish economic actors—aconviction seemingly held by Udovitch.46 On the other hand, if the part-nership models described by the legal documents were entirely eclectic,bearing no relationship either to Jewish or Islamic law, one could perhapsclaim that the norms they reflected had actually emerged from the localnorms of the guild-like coalition of merchants envisioned by Greif.However, as I have shown elsewhere,47 and as will be discussed in briefdetail subsequently, the partnership structures described by the legaldocuments actually echo the models described by Maimonides in hisLaws of Agency and Partnership, even where those models differ fromH˙anafī law.On the other hand, much of the data that can be gleaned from the legal

documents of the Geniza suggest that the models of commercialcooperation that were utilized by Jewish merchants were those seen in clas-sical Jewish codes and formularies. The basic categories of agency(Hebrew, “shelih

˙ut”), partnership (Hebrew, “shutafut”), and investment

partnership48 (Hebrew, “ʿeseq”; Aramaic, “ʿisqa”) that are clearly laidout in Maimonides’ Laws of Agency and Partnership closely followTalmudic models that are maintained with little variance in the Geoniccodes and monographs that were composed and disseminated in the inter-vening centuries.49 These categories are reflected in the Geniza documentsas well:50 as mentioned, few fragments of general agency survive, perhaps

46. Thus, in his aforementioned article “Formalism and Informalism in the Social andEconomic Institutions of the Medieval Islamic World,” Udovitch does not mention theword “Jew” once, despite the fact that all of the documents underpinning his conclusionsemerge exclusively from the hands of Jews.47. See the detail in my dissertation, Ackerman-Lieberman, “A Partnership Culture:

Jewish Economic and Social Life Seen through the Legal Documents of the Cairo Geniza.”48. “Partnership” is used here to refer specifically to arrangements whereby both individ-

uals contribute capital and labor to a partnership, whereas “investment partnership” is usedhere to refer specifically to arrangements whereby one individual contributes capital to apartnership, while the other contributes labor.49. There are some exceptions to this. For example, Maimonides’ insistence that partners

initiate their partnership by placing partnership in a common purse and lifting it up is absentfrom the Book of Partnership of Samuel b. H

˙ofni (d.1034) (cf. Benjamin Manasseh Lewin,

“Ginze-qedem: meʾasef madaʻi li-tek˙ufat ha-geʾonim,” [Haifa: Ginze qedem, 1921], VI:41),

although this requirement is maintained by Isaac Alfasi (d.1103) (cf. Isaac ben Abba Mariand Glanovsky, Sefer ha-ʻIt

˙t˙ur, s.v. “shituf”).

50. Although the legal documents of the Geniza themselves periodically use (Judeo-)Arabic terminology to refer to these various categories, the categories of agency, partnership,and investment partnership hold in the Geniza documents.


because ordinary agency appointment was effected orally rather than inwriting;51 however, the Geniza does reveal legal documents related to part-nership and investment partnership. Although Goitein wrote that “[t]heJewish ʿisqa was less common in the Geniza period than the Muslim com-menda, as witness the extant contracts,”52 a survey of the legal documentsdemonstrates that ʿisqa was not at all uncommon.53 A search of more than4,000 documents in the Princeton Geniza Project electronic text database54

reveals no documents that actually bear the specific phrase “qirād˙al-goyim” (“an ‘Islamic’ commenda”) mentioned by Goitein, suggesting

that Goitein’s conclusion relied on the testimony of Maimonides’ responsarather than on that of actual legal agreements,55 whereas a search of thesame database reveals a document described as “qirād

˙be-torat ʿisqa”

(“a commenda according to the laws of the ʿisqa”).56 Investment partner-ships do not always use one or the other of these phrases, but the absenceof the former from among a significant swath of the “documentary Geniza”should be noted.

51. Cf.Mishneh Torah, Laws of Agency and Partnership 1:1. As mentioned, the exceptionto this principle is agency appointment for debt collection, for which Maimonides doesrequire a formal agency appointment (cf. Mishneh Torah, Laws of Agency andPartnership 3:1ff.) and for which the Geniza does provide textual witness (see, for example,ENA NS 50.32 [dated 1050 CE, in Fust

˙āt˙]; INA D 55.7 [dated 1115 CE, in al-Mah

˙alla in the

Nile Delta]; TS 8 J 4.7 [dated 1184 CE, in Fust˙āt˙]; and TS NS J 11, which seems to have

emerged from the hand of the scribe H˙alfon b. Manasseh, whose dated documents date from

1100 CE to approximately 1138 CE, and who served the court in Fust˙āt˙).

52. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World asPortrayed in the Documents of the Cairo Geniza, I:171.53. Supporting his statement that the commenda was more common than the ʿisqa, Goitein

cites an “express statement to this effect in Maimonides’ Responsa,” which he cites asResponsa Maimonides 91. However, the “express statement” could instead be translatedas follows: “The partnerships of most people at this time concerning overseas trade allocatea third of the profit to the workers, according to the tradition of the Muslims.” (Translationmine.) There is no reason to believe that the questioner was restricting himself to, or evenconcerned with, the trading partnerships of Jews when he laid out this generalization.Alternatively, it is possible that the questioner (unidentified here) came from Fez, whichmaintained a distinctive local commercial custom identified in a responsum of SheriraGaon (d.c.1000). (Cf. Menah

˙em Ben-Sasson, S

˙emih

˙at ha-qehilla ha-yehudit be-ars

˙ot

ha-Islam: Qairavan, 800–1057 (Jerusalem: Hos˙aʾat sefarim Y.L. Magnes, 1996), 93–94,

based on a responsum of Sherira Gaon published in Lewin, “Ginze-qedem: meʾasefmadaʻi li-tek

˙ufat ha-geʾonim,” V:115–17).

54. This database can be searched at http://gravitas.princeton.edu/tg/tt55. See, for example, Responsa Maimonides 32. The phrase qirād

˙(Arabic, “commenda”)

is also used in Responsa Maimonides 93, although there the questioner considers the possi-bility that an arrangement had been formed either as a Muslim commenda or a Jewish ʿisqa.Responsa Maimonides 400 (preserved in Hebrew, rather than Judeo-Arabic) alludes to anagreement formed on the model of ʿisqat ha-goyim.56. ENA 2727.23a Recto.


The most significant difference between the Islamic commenda and theJewish ʿisqa lies in how these structures distribute losses experienced in theordinary course of business: whereas the Islamic commenda indemnifiesthe agent in an investment partnership from such losses, the ʿisqa reckonshalf of the investor’s capital to be a loan to the agent that therefore must berepaid in the case of loss.57 That is, the commenda frees agents from liab-ility for losses, whereas the ʿisqa does not. However, out of approximately14 Geniza documents describing investment partnerships, which containsufficient detail to discern the distribution of partnership losses,58 onlyone document indemnifies the agent;59 the other 13 all explicitly assignthe agent a share of those losses. Although Goitein argues that “[a]ctualcontracts according to Jewish law, which give the manager two-thirds ofthe profit but make him responsible for losses. . .are rare,”60 it wouldseem that their presence is actually more prominent than understood byGoitein.61

Nonetheless, the existence of investment partnership agreements exe-cuted in Jewish courts that reflect Jewish legal norms concerning the div-ision of profits and, particularly, losses, does not suggest that the Islamiccommenda did not occupy a prominent or perhaps even dominant placein the economic life of Jewish merchants in medieval Egypt. The Genizareveals several documents pointing to the termination of a partnershipthat seems to have been formed according to the model of the commenda,62

57. Islamic law: see Udovitch, Partnership and Profit in Medieval Islam, 170. Jewish law:see Maimonides, Laws of Agents and Partners 7:1 and its Talmudic source in Talmud BavliBava Mes

˙iʿa 68b–69a.

58. Note that many documents are not in a sufficiently good state of repair for any scholarto discern the planned distribution of profits and losses, and others simply leave it out, a pro-blem that equally plagues the epistolary material. However, the following documents do con-tain detail concerning the distribution of partnership losses: Bodl Ms Heb b 11.2 (dated 1131CE, in Fust

˙āt˙); ENA 2727.23a Recto; Mosseri A 126; Mosseri VII 17; TS 12.108 (date not

preserved, from Fust˙āt˙); TS 16.21 (ca. 1140 CE); TS 16.23 (attributable to eleventh century

Fust˙āt˙by virtue of the scribe having been Hillel b. Eli); TS 16.87 (dated 1097 CE, in Fust

˙āt˙);

TS 18 J 1.9 (dated 1160 CE, in Fust˙āt˙); TS 8 J 6.9 (dated 1231 CE); TS AS 147.3 (dated

1213/14, in Fust˙āt˙); TS K 25.153 Verso; TS Misc 28.259 (dated 1095 CE, likely in

Fust˙āt˙because of the identification of the scribe as H

˙alfon b. Manasseh); and ULC Or

1080 J 73 (attributable to eleventh century Fust˙āt˙by virtue of the scribe having been

Hillel b. Eli).59. That is, TS 16.23.60. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:176.61. See note 58 above for a list of a number of such documents.62. See, for example: TS 13 J 2.5 (dated 1095 CE, in Fust

˙āt˙), a release from a commenda

(Arabic, “mud˙āraba”); or Gottheil-Worrell VII (dated 1151 CE), in which the litigant ident-

ifies himself specifically as a party to a commenda and not a “partner” (Arabic, “muqārid˙lā


as well as “Arabic documents”63 describing commercial relations that wereformed in or in some cases even adjudicated in Islamic courts and sub-sequently brought to Jewish courts. Well aware of this, Goitein concludedthat settlements were often made before Muslim notaries;64 and that “[s]ince the most common form of legally valid business cooperation wasthe Muslim commenda, it is only natural that such contracts should bemade before a Muslim notary.”65 However, as will be shown, the rangeof outcomes that the Jewish courts were willing to authorize or even toendorse included those that fell beyond the range of Jewish legal normsas they are described in Talmudic literature, Geonic codes, andMaimonides’ Mishneh Torah.66 Therefore, litigants’ choice of venue can-not necessarily be seen (as Goitein would seem to understand) as emergingfrom the details of the partnership structure that they chose to employ.Without a corresponding corpus of documents executed by Jews inIslamic courts, the extant evidence should drive scholarly conjecture;that evidence suggests that many Jewish merchants chose the Jewish courtsas the venue for the establishment and maintenance of their partnershipagreements, and that at least a significant proportion of those merchantswho contracted investment partnerships did rely on the Talmudic ʿisqarather than the Islamic qirād

˙.

As it has for “investment partnerships,” documentary evidence from“ordinary partnerships”67 also reveals some important affinities with thedistinctive structures of Jewish law. Those affinities are both formal andsubstantive. Beginning with the formal: in the case of ordinary partnershipagreements, Maimonides requires that the partners initiate their relationshipby placing their joint capital in a common purse;68 whereas only one

sharīk”), cited in Goitein, A Mediterranean Society: the Jewish Communities of the ArabWorld as Portrayed in the Documents of the Cairo Geniza, I:442, n.31.63. See, for example: Bodl Ms Heb a 3.16 (dated 1139–40 CE, in Fust

˙āt˙), although the

documents may have been a deed of purchase rather than a partnership agreement in thiscase; TS 16.138 (dated 1077 CE, in Alexandria); TS NS J 30 (dated 1232 CE, in MinyatZifta, near Fust

˙āt˙), which reveals a court case being brought to the Jewish court, which

had already been decided in an Islamic court.64. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:179.65. Ibid.66. See, for example, BM Or 10126.6, discussed subsequently, which reveals the court

permitting a loan at interest.67. For the purposes of this article, “ordinary partnerships” are those for which both part-

ners provide both capital and labor; whereas (as mentioned) “investment partnerships” arethose for which only one partner provides capital and the other provides labor.68. Mishneh Torah, Laws of Agents and Partners 4:1. Note that Alfasi also maintained

this requirement (see note 49 above).


school of Islamic law requires this.69 In contrast, neither Jewish nor Islamiclaw requires the common purse to initiate an investment partnership. In linewith the Jewish legal requirement of a common purse for the ordinary part-nership, the Judeo-Arabic word “wasat

˙” (“middle”), indicating the com-

mon purse, appears in approximately eleven Geniza documentsdescribing ordinary partnerships,70 but only one describing an investmentpartnership.71 As pointed out by Jessica Goldberg, Geniza letters usuallyrefer to the “ordinary partnership” (in her words, “an investment-sharesventure partnership”) as a khult

˙a (“mixture”), “referring to the mixing of

monies in a single purse.”72 It would even seem that Jewish merchantshad a distinct word for ordinary partnerships having been formed withoutthe formal requirement of raising up the common purse,73 suggesting thetransformative 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 in which Jewish commercialpractice of ordinary partnership reflected a preference for Jewish legalnorms rather than Islamic norms. However, the models of day-to-day man-agement of ordinary partnership (“sharikat al-ʿinān” in Arabic) prescribed

69. As pointed out by Ibn Rushd, Shāfiʿī alone declares the “common purse” to be anabsolute requirement. (cf. Averroës and Muhammad Abdul-Rauf, The DistinguishedJurist’s Primer: a Translation of Bidāyat al-Mujtahid, 2 vols. (Reading: Garnet, 1994),II:391). Note that the opinion of Ibn H

˙azm accords with that of the Shāfiʿī school in that

the investment of the two parties should be physically intermingled until the investmentof one party cannot be differentiated from that of the other (cf. ʻAlī ibn Ah

˙mad Ibn

H˙azm, 994–1064 and Ah

˙mad Muh

˙ammad Shākir, al-Muh

˙allā (Cairo: Idārat al-T

˙ibāʻa

al-Munīrīya, 1928), microform).70. That is, Bodl Ms Heb a 3.8 (dated 1134 CE, in Fust

˙āt˙); ENA NS 17.35 (likely from the

first half of the eleventh century, Fust˙āt˙); TS 10 J 7.6 B (dated 1149 CE, likely from Fust

˙āt˙);

TS 12.464 (dated 1091/2 CE, in Fust˙āt˙); TS 12.710 Verso (dated 987 CE, in Fust

˙āt˙); TS

16.168 (dated 1077 CE, in Alexandria); TS 20.21 (dated 1076 CE, in Fust˙āt˙); TS 8 J

11.14 (early thirteenth century CE, in Fust˙āt˙); TS 8 J 32.3 (dated 1162 CE, in Fust

˙āt˙); TS

Misc 28.263 (dated 1112 CE); and TS NS J 74. ENA NS 13.34 (dated 1208 CE, inBilbays) is a similar agreement, noting that the partners “brought out the capital. . .[and]commingled the total”, although it does not mention the “middle” in specific.71. That is, TS K 25.153 Verso. Bodl Ms Heb b 11.2 is an investment partnership agree-

ment that mentions a purse (“kis”), but in this case the purse is deposited by the investorwith the agent rather than lifted up by two partners in an act of initiation.72. Jessica Goldberg, “Business, Businessmen and Work in the Medieval Mediterranean:

Reconsidering the ‘Maghribi’ Traders,” in Social Norms Workshop (Princeton: PrincetonUniversity 2008), 17.73. The Judeo-Arabic term for this sort of partnership is “muʿāmala.” See my dissertation,

Ackerman-Lieberman, “A Partnership Culture: Jewish Economic and Social Life Seenthrough the Legal Documents of the Cairo Geniza”, 128–30, for a discussion of the termmuʿāmala in the documents and scholarly attempts to understand this term.


by Islamic law vary among the Mālikī, Shāfiʿī, and H˙anafī schools,74 and,

therefore, the model of ordinary partnership described by each Islamiclegal school should be considered separately vis à vis the Genizadocuments.

First, in assessing the Mālikī school, Udovitch writes that ʿinān partner-ship “appears to have been conceived as pertaining either to a single com-modity or to a single transaction.”75 This model is a clear departure fromGoitein’s description of traders who often “had one article as their mainbusiness” yet nonetheless actively traded in a very broad range of commod-ities.76 Partnership agreements from the Geniza support Goitein’s under-standing and also suggest that commercial relationships typicallyextended beyond single transactions.Second, the Shāfiʿī model for ʿinān partnership demands that profit- and

loss-sharing follow investors’ respective shares in the partnership capital,whereas Geniza merchants often preferred an equal (or evenly pro-portioned) division of profits and losses even when partners’ investmentsvaried wildly.77 The inflexibility of the Mālikī and Shāfiʿī models andtheir general incompatibility with a developed system of trade and com-merce has already been noted by Udovitch.78

However, H˙anafī law shares much with Jewish law in its general frame-

work for ordinary partnership, as well as its flexibility towards profit- andloss-sharing arrangements; given its general flexibility, it is unsurprising

74. Udovitch outlines these differences in Partnership and Profit in Medieval Islam ; see,in particular, 29–39 for the Shāfiʿī view, 119–41 for the H

˙anafī view, and 145–46 for the

Mālikī view.75. Ibid., 149.76. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:156.77. See, for example: ENA NS 13.34, in which investment was split 71%/29%, and profits

and losses split evenly; ENA NS 17.35, in which investment was split 95%/5%, and profitsand losses split evenly; TS 13 J 3.19 (dated 1207 CE, in Fust

˙āt˙), in which investment was

split 91%/9%, and profits and losses split evenly. See also TS 10 J 27.3 C (dated 1107 CE, inCairo), in which investment was split 91%/9%, and profits and losses were split 66%/33%.78. Despite Udovitch’s statement that the models of partnership described by these legal

schools were too inflexible to be useful for a system of Mediterranean trade in the highmiddle ages, it is worthwhile noting that it was actually the Mālikī school that held swayin al-Andalus at least through the decline of the Andalusian Umayyad caliphate (cf.David Wasserstein, The Rise and Fall of the Party-Kings: Politics and Society in IslamicSpain 1002–1086 [Princeton: Princeton University Press, 1985], 174); whereas in Egyptthe Ayyūbid regime (1171–1250 CE) was vigorous in supporting the Shāfiʿī school(Lapidus notes that the Ayyūbids appointed only chief qād

˙īs of the Shāfiʿī school; cf. Ira

M. Lapidus, “Ayyubid Religious Policy and the Development of Schools of Law inCairo,” in Colloque international sur l’histoire du Caire, ed. André Raymond [Cairo:Egyptian Book Organisation, 1972]).


that Udovitch latched on to H˙anafī law as a medieval Islamic “Law

Merchant.” Geniza documents reflect the flexibility given to partners ima-gined by both Maimonides and H

˙anafī law. Although both Maimonides’

work and the important H˙anafī code Kitāb al-Mabsūt

˙of Muh

˙ammad

b. Ah˙mad al-Sarakhsī (d.1106 CE) treat “general” partnerships the same,

giving partners the freedom to transact in whatever commodities they seefit, at least one significant difference is to be found in the approach ofthese two works to the day-to-day management of partnerships in whichthe range of commodities is specified in the agreement (that is, in“specified” partnerships). This difference comes to the fore when one ofthe partners has used partnership capital to transact in a commodityother 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 whotransgressed the specifics of the agreement), Sarakhsī holds that any profitsor losses from such a transaction are the sole responsibility of the offendingpartner.79 Jewish law discourages economic opportunists from transgres-sing the bounds of their partnership agreement by demanding that profitsfrom any such transaction would be divided among the partners; Islamiclaw permits such opportunism where one takes on all of the risk andreward.The variety of commodities that appear on bills of lading and in traders’

letters suggests that Jewish traders were economic opportunists who triedto take advantage of the myriad opportunities that presented themselvesin the moment.80 In the case of “ordinary partnerships” (as opposed to“investment partnerships”), both partners would be actively involved inseeking opportunities for themselves and for the partnership. Had these tra-ders been operating under Islamic law, they would have had a strong incen-tive to specify the commodities or range of commodities in which theyintended to transact.81 Islamic formularies even point to the ex-ante mutual

79. Maimonides: Laws of Agency and Partnership 5:2; Sarakhsī: Muh˙ammad ibn Ah

˙mad

Sarakhsī, Muh˙ammad H

˙asan Muh

˙ammad H

˙asan Ismāʻīl Shāfiʻī, and Kamāl ʻAbd al-ʻAz

˙īm

ʻInānī, Kitāb al-Mabsūt˙(Beirut: Dār al-Kutub al-ʻIlmīya, 2001), XI:188, cited in Udovitch,

Partnership and Profit in Medieval Islam, 124, “. . . If . . . one of them buys something out-side of this specific category, it belongs exclusively to him.”80. See, for example, the colorful narrative of partnership capital invested and re-invested

in Bodl Ms Heb d 66.5 and Bodl Ms Heb c 28.11, discussed in Mark R. Cohen, “APartnership Gone Bad: A Letter and a Power of Attorney from the Cairo Geniza, 1085,”in Sasson Somekh Festschrift, ed. David Wasserstein and Mahmud Ghanaim (forthcoming).81. For example, in the manner suggested by TS 13 J 3.19, which stipulates that the

partners are to transact in “medicinal commodities.”


agreement of the partners on which commodities are to be traded.82 Thiswould allow an economic opportunist who saw a periodic “bargain” out-side this range of commodities to employ the full partnership capital forhis sole advantage, even if this meant taking on additional risk.On the other hand, Jewish law does not permit this loophole of sorts,

since the profits from such transactions would be split between the part-ners. (Figure 1 shows the various distributions of profit and loss to the“opportunistic” partner under the structures of Islamic and Jewish law.)Opportunists functioning under Jewish law might even prefer the unspe-cified partnership, as this would minimize their exposure to potential lossesfrom taking risk on “bargains” that would have been outside the realm ofthe specified partnership. Unsurprisingly, perhaps, the main Jewish formul-aries even emphasize the unspecified nature of partnerships, referring to“whatever types of merchandise which the Heavens may permit us.”83

The formulary of Hai Gaon (d.1038 CE) is an exception, as it explainsthat the partners may make certain stipulations, among them that no partnermay transact without his fellow being physically present, somewhat remi-niscent of the use of the dual in the Islamic formularies to indicate ex-antemutual agreement.84 However, such a stipulation would clearly be of littleuse to traders physically distant from one another, and, therefore, it would

82. Thus, the H˙anafī formulary of T

˙ah˙āwī (d.935) records “. . .whatever types of goods

they see fit. . .” (“. . .mā raʾyā min anwāʿ ʾl-tijārāt. . .”, T˙ahāwī and Rawh

˙ī, al-Shurūt

˙al-s˙aghīr, 736. Emphasis mine.) See also the Mālikī formulary of T

˙ulayt

˙ulī (d.1067)

(S˙adafī and Aguirre Sādaba, al-Muqniʻ fī ʻilm al-shurūt

˙, 249), which reads similarly, but

even more specifically (“li-yatjurā bi-hā fī sūq kadhā min balad kadhā wa-yatas˙arrafān

bi-hā fī ʾl-tajr al-madhkūr wa-fīmā z˙ahara lahumā min anwāʿ ʾl-tajr,” “in order that the

two of them would transact therein in such-and-such a market in such-and-such a placeand that the two of them would act independently therein in the aforementioned commerceand in what appears to them of the various types of commerce”). The Shāfiʿī formulary ofNuwayrī (d.1333) reads, “that which the two of them wish and choose from the various sortsof commodities and the various types of merchandise” (Ah

˙mad ibn ʻAbd al-Wahhāb

Nuwayrī, Nihāyat al-arab fī funūn al-adab, 18 v. in 16; 28 cm. vols. [Cairo: Mat˙baʻat

Dār al-Kutub al-Mis˙rīya, 1923), IX:186].

83. Including Judah ben Barzillai and Solomon J. Halberstam, Sefer ha-Shet˙arot

(Jerusalem, 1966), 116–17, which also includes the phrase, “. . .whatever God facilitatesfor us in order to profit. . .”; and Ben-Sasson, “Fragments from “The Book of Testimonyand Documents” of Rabbi Saadiah Gaon,” 206 at l.14, where the Heavens are again invoked.The eleventh century Andalusian Jewish documents published by Joseph Rivlin reveal asimilar expansiveness (cf. Rivlin, Shit

˙re k

˙ehilat al-Yusana: min ha-meʾa ha-ah

˙at-ʻesre

205 at l.5). In short, the Jewish formulae include the word “all” when referring to thetypes of merchandise, which the Islamic formulae do not, suggesting that the “types of mer-chandise” to which the Islamic formulae refer are specified, whereas those in the Jewish for-mulae are not.84. See Hai ben Sherira and Assaf, Sefer ha-shet

˙arot, 33–35. However, it is worthwhile

noting that transacting in the presence of one’s partner is not the same thing as agreeing ex


seem instead that such traders would stipulate that “each of us may buy andsell according to what he sees fit—whether in the presence of his fellow oron his own.”85

Whereas partnership agreements from the Geniza concerning a specificshop or economic enterprise such as a sugar factory often contain detailconcerning the commodities to be manufactured or traded, only abouthalf of the partnership agreements involving long-distance trade (asopposed to work in a shop or a factory) provide any description whatsoeverof the nature of the commodities to be traded.86 Goitein argues that broaddiscretion and latitude was assumed: “[s]ometimes it was expressly statedthat the managing partners were free to act as they saw fit. Where no suchstatement was made, it was taken for granted.”87 The slight numericaldominance of unspecified partnership in Geniza documents resonateswith opportunists’ desire to minimize their exposure to losses, but thelack of a very strong preference for one type or another among the commu-nity of merchants may express the sentiment that a trader would only takeadvantage of such “bargains” when they were particularly likely to workout or they were particularly advantageous. As Jewish law would treatprofits from the bargain transaction the same whether or not the underlyingpartnership was “specified,” traders would have had no clear preference foreither form of partnership. On the other hand, opportunistic traders

Figure 1. Percentage of profit or loss assigned to the opportunistic partner fromtransacting in a commodity other than that specified in the partnership agreement.Note that the unspecified agreement is to be preferred by the economic opportunistfunctioning under Jewish Law; whereas the specified agreement essentially givesthe economic opportunist functioning under Islamic Law access to a larger pool ofpartnership capital.

ante as to the commodities in which one will transact, and such a stipulation would clearlybe ridiculous for long-distance traders.85. Ibid., 34, ll.13–14.86. See footnote 81 above.87. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:178.


working under norms described by Islamic law might have preferred tospecify their agreements, because their opportunistic use of partnershipcapital would garner them all the profits from transactions in commoditiesbeyond those specified in the agreement (although they would also beliable for all the losses from such transactions). That the agreementsfound in the Geniza do not express a strong preference for specificationsuggests that these opportunistic traders might not have expected to allo-cate profits and losses according to the model presented by Sarakhsī.Rather, the slight preference for unspecified agreements suggests thatthey may have expected to have done so in the manner described byMaimonides. In matters of form and substance, then, the documentary evi-dence from the Geniza suggests that the structure of agreements concerningcommercial cooperation from the Rabbanite community, particularly ofeleventh and twelfth century Egypt, generally followed details and struc-tures resident in Jewish codes and formularies, even where those detailsand 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 themodels for economic cooperation provided by Jewish law described inthis section of the article, and even the exceptions to these general affinitieswere themselves ratified in the Jewish court. For example, the folio BritishMuseum Oriental Collection 10126.688 (written in Bilbays, in the NileDelta, in 1239 CE) reveals a commenda-style relationship between twoJews to have been renegotiated or restructured into a loan with a “fixedrate of profit” (Arabic, “fā’ida mutaʿayyina”), an arrangement clearly pro-scribed by Jewish law. A close examination of court practice in Jewishmedieval Egypt will help adduce the ways in which those courts mighthave influenced practice and might explain these outcomes. Such an analy-sis is necessary to explain both the commonalities and the inconsistenciesbetween the Mishneh Torah and the documents of the Geniza, which couldotherwise be explained as a happy coincidence in which the norms of theGemeinschaft happened to overlap significantly with those of theGesellschaft.

The Courts: Pedagogues rather than Demagogues

Is the apparent—and, significantly, incomplete—correspondence betweenJewish legal norms and the details of commercial arrangements just ahappy coincidence? What role did the court have in informing merchants’choices in structuring their business relationships? This section of the

88. Hereafter designated BM Or 10126.6.


article will show that legal procedure in the Jewish courts included a pro-cess whereby Jewish merchants were educated as to the classical norms ofJewish law in commercial matters; in light of this, I suggest that this pro-cess of education played a role in merchants’ choices. After outlining theprocess of decision making in the Jewish court, this section will examinethat process in light of contemporary mediation theory. Judicial authoritieswill be shown to have acted as mediators rather than adjudicators, and therole of rabbinic “judges” in educating “litigants” as to the bounds of Jewishlaw in the process of mediation will be shown to have influenced the out-comes of the court, although perhaps not to have defined those outcomes,and, therefore, to have had an important role in establishing commercialpractice.Demonstrating the ways in which the norms that are described by the

classical sources of Jewish law were implemented by the Jewish courtsof medieval Egypt might be somewhat simple if the Geniza retained alarge corpus of detailed court judgments. Unfortunately, however, such“[f]ormal judgments, quoting the legal sources and detailing the reasonsfor the decision made, are almost entirely lacking.”89 Court records areinstead often either depositions germane to the matter at hand, or declara-tions by the parties. These declarations fall into two broad categories:“acquittals” or “acknowledgments”. In both cases, these documentssuggest a resolution of the matter at hand: an “acquittal” denotes therelease—often effected bilaterally—from the litigants of any future poss-ible obligation toward each other, at times subject to a final conditionsuch as settlement of a debt; whereas the “acknowledgement” declaresan 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 played no role in dispute resolution. As Goiteinexplains, the composition of myriad rabbinic responsa attests to the role offormal legal norms in the legal process. Rather, rabbinic concern with pun-ishment for error in judgment—a concern reflected in Maimonides’Mishneh Torah and its Talmudic sources that point out that “any judgewho rules in a less than true manner causes the shekhina”—that is, thedivine presence—“to depart from Israel”90—led the court to set down itsjudgments in the form of declarations on the part of the parties insteadof in the form of decisions written in the voice of the court. Goiteineven mentions a tenth century judge who accepted his appointment onlyon condition that he should never be obliged “to give formal judgments

89. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World asPortrayed in the Documents of the Cairo Geniza, II:334.90. Mishneh Torah, Laws of the Sanhedrin (the “Great Court”) 23:9.


in cases which he would decide.”91 Therefore, the literary form taken by“judgments”—to wit, acquittals and acknowledgments—should not mis-lead the researcher into thinking that they do not represent actual decisionsmade by the court. Goitein believed that “Muslim judges adopted a similarattitude”92 and also avoided formal judgments: a famous h

˙adīth teaches

that “When a judge gives a decision, having tried his best to decide cor-rectly and is right, there are two rewards for him; and if he gave a judgmentafter having tried his best (to arrive at a correct decision) but erred, there isone reward for him.”93 Chibli Mallat’s description of a common “MiddleEastern” court practice in his 2007 Introduction to Middle Eastern Lawparallels much of Goitein’s description, including an absence of pro-fessional counsel, the recourse to outside legal experts, and the centralityof “consensual decision-making, with the judge as the holder of the lastsay in the matter at hand.”94 Interestingly, Mallat was unable to find evi-dence of adjudication in documents from the Geniza. The absence of adju-dication per se might not be surprising if, as explained by Lawrence Rosen,the goal of the qād

˙ī, “setting litigants back on a course of negotiating their

own relationships”95 was taken up by Jewish judges in medieval Egyptwho relied on a consensual, non-adjudicative method of disputeresolution.96

Court process in the Rabbanite community of medieval Egypt involved apreliminary review of the evidence in both oral and documentary form bythe rabbinic court, almost without exception in the absence of legal advo-cates for either party. On the other hand, where the legal questions werecomplex, the initial presentation of evidence would be followed byrecourse to jurisconsults whose opinions served the advocacy function:Goitein writes that “the parties, and if he saw fit, also the presidingjudge, would present the case, as it had been formulated in court, to one

91. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World asPortrayed in the Documents of the Cairo Geniza, II:335.92. Ibid.93. Sah

˙īh˙Muslim, Kitāb al-Aqd

˙iyya, ch.4.

94. Chibli Mallat, An Introduction to Middle Eastern Law (New York: Oxford UniversityPress, 2007), 83.95. Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society

(Cambridge: Cambridge University Press, 1989), 18.96. David Powers also points to the mediative role of the qād

˙ī, albeit in extremis: “Mālikī

procedural law sometimes made it difficult or impossible for a qād˙ī to issue a judgment . . . [i]

n such cases the qād˙ī might nevertheless play a key role in the resolution of a dispute by

offering his services as a mediator.” (David S. Powers, Law, Society, and Culture in theMaghrib, 1300–1500, Cambridge Studies in Islamic Civilization [Cambridge: CambridgeUniversity Press, 2002], 19).


or more legal experts.”97 This process mirrors the practice in Islamic law ofqād˙īs (judges) referring their legal questions to muftīs (jurisconsults) and

could help reveal why both Islamic and Jewish responsa from the periodremove detail from their legal opinions: the advocacy function could beserved by these responsa even without all of the personal details fromthe specific case at hand. As is well known from the responsa of theGeonim, heads of the central academies in Babylonia or Palestine, whichreveal 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 respondto opposing litigants in a single case.98 Jurisconsults were aware of this,and specified in their responsa that their “rulings”—that is to say, the con-clusions drawn in their responsa—applied only if the details of the casewere as stated in the question.99

Analyzing the records of the Geniza, Goitein outlines in detail what, inhis understanding, would proceed once the litigants arrayed the responsa ofthe jurisconsults:

After receipt of the opinions of the legal experts, a settlement outside courtwould be attempted first. Throughout our records, several arbiters, never asingle one, are referred to, and as with the composition of a court, a largenumber of arbiters was considered more conducive to equity than a smallone. In a little town in the Nile Delta we find nine persons mentioned byname acting as a board of arbitration with a circuit judge sent from the capitalpresiding. The circuit judge was advised by his superior to attempt a decisionby law only if arbitration failed. Many lawsuits in the Geniza were settled bysuch agreements.100

Thus, receipt of these legal opinions would be followed by an attempt tosettle the case extra-curially, apparently by “arbitration” panels that oftenincluded judges. Only after efforts at arbitration “failed” would the courthand down a judgment, and even then only after the court itself had sentlegal queries to its superiors either in Fust

˙āt˙(old Cairo) or, when the

chief judges in Fust˙āt˙were themselves involved in a case, to the authority

97. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World asPortrayed in the Documents of the Cairo Geniza, II:338.98. For example, Mordechai A. Friedman points out that Responsa Maimonides 34 and 45

demonstrate a particularly clear example of this phenomenon.99. Jurisconsults would often write their responsa at the bottom of the page on which a

question had been submitted to them. Thus, the voice of the questioner can at times be ident-ified as distinct from that of the respondent. This conclusion emerged out of a personal com-munication with Mordechai A. Friedman.100. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, II:339.


figure—the gaon or nagid (that is, the local communal head)—whoappointed them. At the same time, the litigants would also appeal to thehigher court or the authority figure even before the lower court had handeddown a decision. Finally, just before the court handed down its decision, itwould give the parties the opportunity to save face by satisfying oneanother, particularly where the presumed loser was an individual of highstanding. The decision itself often demanded that one or more partiestake an oath, a ritual that included removing a Torah scroll from the arkand placing it in the hands of the party required to take the oath.Examining the dispute resolution process in general, it is clear that rab-

binic adjudication as such was not the default resolution technique, but wasrather the last resort when disputes were not resolved successfully by othermeans, just as Mallat mentions with respect to his seventeenth centuryLebanese court register.101 On the other hand, a number of preliminarystages in the litigation involve something that Goitein describes as “arbitra-tion” or “settlement.” This part of the process merits closer examination,not only because it seems likely that the process to which Goitein attachesthe term “arbitration” was indeed the manner in which parties seekingrecourse through the Rabbanite community actually resolved most dis-putes, and therefore a close study of this process might give a cleareridea of the social function of the court generally, but also because an exam-ination of the roles played by the primary characters involved in this pro-cess and the documents that this process produced might yield someinsights into exactly which sets of possible social norms were implementedas a result of the activities of the court, which (in turn) may make for a ree-valuation of Greif’s fundamental assumption that the community of tradersheld and implemented their own set of Gemeinschaft norms.In attempting to adduce the role of classical Jewish legal norms in court

practice, it is worthwhile examining the “arbitration” described by Goitein.As opposed to a contemporary understanding of arbitration as a processinvolving the binding adjudication of third parties, the attempted “out ofcourt” settlement by a “board of arbitration”102 that Goitein describes isonly the first step in a larger process of dispute resolution; if “arbitrationfailed,” the court would “attempt a decision by law.” However, it wouldseem that the very essence of the process of arbitration—to wit, the bindingaspect of third-party adjudication—is absent from Goitein’s description.

101. Mallat, An Introduction to Middle Eastern Law, 83ff.. Therefore, Mallat seems tobelieve that the practice of settlement rather than adjudication is a rooted fixture of“Middle Eastern Law” of long duration.102. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, II:339.


That is, the “board of arbitration” to which Goitein alludes may have beeneducated as to the details of the case and to the fine points of law as detailedin rabbinic responsa and precedent that had been brought to the court, butthat board of arbitration seems to have lacked the power to hand down abinding decision. Otherwise, it is unclear why this board would ever needto return the case to the court itself. Therefore, “failure” of the board of arbi-tration, as understood by Goitein, would seem to mean a failure to bring thelitigants together in agreement in a settlement, not a failure of the board ofarbitrators itself to arrive at such a settlement. Goitein’s use of the term“arbitration,” then, seems to refer to settlements outside the court.However, in at least some cases, the out of court settlement process may

have involved the litigants themselves in determining the details of settle-ments in a more active manner than that typically described by the contem-porary legal term “arbitration.” It seems that at times the actual function ofthis board of legal experts was mediation rather than arbitration—that is,attempting to bring the parties together to arrive at a settlement rather thanactually handing down a binding decision per se. Although the traditionalHebrew term for “arbitration,” “peshara,”103 is not uncommon in legaldocuments executed in Jewish courts and preserved in the Geniza, the“peshara” described by these documents (to the extent that this can bedetermined) is only sometimes the product of the “outside” interventionof “elders,”104 whereas at other times it is explicitly the product of the liti-gants themselves.105 Furthermore, whereas classical rabbinic literature

103. See, for example, the analysis of Berachyahu Lifshiz (Berachyahu Lifshitz,“Compromise,” in Mishpetei Eretz: A Collection of Essays in Halachic Law, ed. YaronUnger (Ofra: Mishpetei Eretz Institute for Halacha and Law, 2002)), which concludesfrom a detailed review of classical rabbinic sources that peshara consists of the parties’agreement to submit to the judgment of the court (Lifshitz, “Compromise,” 145).104. See, for example, TS 8 J 4.2b (dated 1026 CE), which points out specifically that the

court “intervened with the power of peshara” (“anna yatawassat˙ū bi-koah

˙peshara”); TS 18

J 1.23 (dated 1007 CE, in Fust˙āt˙), similarly alluding to “intervention” of elders, though also

pointing out that all the parties demonstrated their satisfaction with the “peshara” (“asqat˙a

min jamīʿihim bi-ʾl-rid˙a bi-hādhahi ʾl-peshara”); ULC Mss Add 3339b (dated 1218 CE, in

Bilbays), alluding to “intervention” (“wa-tawassat˙ū bi-derekh peshara”); and Westminster

College Fragments Cairens 49b (dated 1098 CE, in Fust˙āt˙), which attests to a settlement con-

cerning a load of milk products made “by judgment of peshara” (“wa-istaqarra al-h˙āli

baynahumā fī ʿilāwat albān be-din peshara”). See also TS 8 J 8.1 (which can be datedbetween 1213 and 1233 CE by virtue of the addressee Yehiel b. Eliakim, who serves thecourt of Abraham Maimonides in Fust

˙āt˙in the early thirteenth century), which is not itself

a legal document but instead record of a legal inquiry in which the questioner points out thatrighteous elders had “executed peshara” between a man and his wife (“ve-ʿasu ziqnei yosherpeshara benehem”).105. See, for example, the document formed by the union of ENA 3805.15 and Bodl Ms

Heb B 13.38 (dated 1094 CE), which mentions that the “peshara” was implemented by the


understands “peshara” to involve the binding adjudication of elders orjudges,106 the possibility of “failure” of arbitration can only indicate thatthe litigants themselves had a role either in arriving at or in acceptingthe settlement of the “board of arbitration”—suggesting that the meaningof “peshara” was broader in the Geniza period than in the rabbinic period,and encompassed both arbitration and mediation. Finally, that the verydocuments that allude to “peshara” were executed in the Jewish courtsuggests that this process was not one that functioned extracurially, butwas instead an integrated component of the Jewish court’s dispute resol-ution system.Perhaps, then, Goitein’s characterization of the dispute resolution pro-

cess should be modified slightly. It would seem that the court wouldbegin with an attempt to resolve disputes through mediation, in thehopes that this would save the judges from the possibility of error. Thismay also have had the added benefit of preventing the dissatisfaction ofone or more parties with a judgment decreed by the court, which wouldhave been highly attractive to the Jewish court. The legal environmentwas one in which enforcement of judgments and the coercive power ofthe court is unclear. Goitein writes that “[t]he handing down of a judgmentdid not always mark the end of a lawsuit. Its execution, even with the aid ofthe state authorities. . .sometimes caused great trouble.”107 Therefore, redu-cing the role of adjudication in favor of mediation in order to reduce liti-gants’ dissatisfaction might have saved the resources of the court forattempting to enforce particularly difficult situations.108 Given that anycase could be taken to an Islamic court “on appeal”—that is, if one ormore 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 courtwould seem to have a vested interest in producing results that had the sup-port of all concerned. Particularly in Fāt

˙imid Egypt (969–1171 CE), when

litigants themselves, without the ruling of a court (“ve-istaqarra baynanā bi-pesharabi-ʾkhtiyārinā min ghayr h

˙ukmi h

˙ākimin”; cf. Goitein’s analysis of this, Goitein, A

Mediterranean Society: the Jewish Communities of the Arab World as Portrayed in theDocuments of the Cairo Geniza, III:279-80); and TS 20.32 (dated 1057 CE), which recordsthat the litigants were initially encouraged to engage in “peshara” among themselves (“kiha-raʾui lakhem she-taʿasu peshara benekhem”).106. See footnote 103 above.107. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, II:342.108. This is not to say that the Jewish court never executed its decision-making power; TS

13 J 3.12 (dated 1165 CE, in Fust˙āt˙) notes that elders “came between them and decided

between them” (“dakhalū baynahumā ziqne yosher ve-khosher [ohave shalom] ve-qarrarubaynahumā”); and TS 16.333 (dated 1098 CE) contains a similar phrase. See also thedocuments mentioned in footnote 104 above.


Shīʿī rulers recognized qād˙īs of all four major Sunnī schools, Jewish,

Christian, and Muslim litigants had their pick of a broad range of courts;109

litigants’ choice of venue meant that the Jewish and Christian (Coptic)courts essentially competed to attract cases. Geniza documents often alludeto “Arabic” documents (that is, presumably, documents whose origin wasin the Islamic courts) making their way as “evidence”110 in the Jewishcourt, and it is clear that scribes in the Jewish court composed legal docu-ments in order to respond to legal concerns present in Islamic as well asJewish law,111 just as scribes in Islamic courts of any particular legalschool turned to the practice of ih

˙tiyāt

˙(Arabic, “precaution”) and com-

posed their documents to respond to the legal concerns of the otherSunnī schools.112 Mediation, then, would have been encouraged by theJewish court as more expedient for all concerned. Although the court pre-sumably had the power to intervene and to adjudicate, the vast majority ofcourt records does not indicate adjudication per se, but only acknowledgesa 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 theearly stage of the process (that is, mediation), saving the court the troubleof arbitration (that is, adjudication) and its attendant risks both practicaland spiritual.It may be that Goitein’s use of the term “arbitration” instead of

“mediation” was purely an error in nomenclature, because in using theterm “arbitration” Goitein is sensitive to the understanding of legal scholarsthat “mediation” of disputes generally avoids recourse to social or legalnorms in the service of a solution acceptable to the disputing parties.Goitein’s understanding should, therefore, be weighed against theoreticalmodels of mediation. In his seminal article “Mediation—Its Forms andFunctions,” published in 1971, the very same year that Goitein published

109. This situation changed somewhat with the arrival of the Ayyūbids (1171–1250), whoenforced a Sunnī doctrinal orthodoxy with greater fervor (see Michael Milton Chamberlain,“The Crusader Era and the Ayyūbid Dynasty,” in The Cambridge History of Egypt, Volume1, ed. Carl F. Petry [Cambridge: Cambridge University Press, 1998], 232).110. As mentioned previously, the Qurʾān rejects an evidentiary role for documents in

general, but court practice clearly admitted such documents from the early period, asexplained by Wakin (see footnote 19 above). Jewish law generally gives legal force todocuments.111. For a further discussion of the role of legal phraseology in scribal practice, see Phillip

I. Ackerman-Lieberman, “Legal Writing in Medieval Jewish Cairo,” in ‘From a SacredSource’: Geniza Studies in Honour of Professor Stefan C. Reif, ed. Siam Bhayro andBenjamin Outhwaite (Leiden: Brill, 2010), 1–24.112. See Wakin’s discussion of ih

˙tiyāt

˙in T

˙ah˙āwī and Wakin, Jāmiʻ al-kabīr fī al-shurūt

˙.

The Function of Documents in Islamic Law: the Chapters on Sales from T˙ah˙āwī’s Kitāb

al-shurūt˙al-kabīr, 32ff.


the volume of A Mediterranean Society that discusses court procedure, thescholar of jurisprudence Lon Fuller wrote that “mediation is commonlydirected, not toward achieving conformity to norms, but toward creationof the relevant norms themselves.”113 Likewise, Goitein’s assumptionthat mediation (in his words, arbitration) creates norms rather than con-forms to norms is palpable when he protests that “[i]t would be entirelywrong to assume that the courts acted merely as boards of arbitration, with-out having recourse to statutory law.”114 Although Goitein understood thatthe court was well versed in the details of cases at hand and the relevantpoints of law, he would seem to admit Fuller’s point that mediationinvolves enabling the parties “to meet shared contingencies without theaid of formal prescriptions laid down in advance.”115 Fuller even sees“not in the making of legal rules, but in their enforcement and adminis-tration that a certain incompatibility may be perceived between mediativeprocedures and the ‘rule of law’.”116

The understanding, then, that mediation dominated the Jewish courts ofmedieval Egypt, and that mediation meant a certain detachment from thenorms of the Gesellschaft, would seem to support clearly Greif’s modelof a tight-knit coalition with the norms of its own Gemeinschaft, eventhough the court may have been the forum in which those norms wereimplemented. However, more recent study of mediation has sought to “sep-arate out the variety of processes grouped together as mediation and dis-tinguish them based on their treatment of social norms.”117 Therefore,in her 1997 article “The Role of Social Norms in Mediation,” EllenWaldman outlines three distinct models of mediation: “norm-generating,”“norm-educating,” and “norm-advocating.” The first of these models isprefigured by Fuller’s claim that mediation is directed “toward creationof the relevant norms themselves.” In this model, participants in themediation process themselves articulate possible solutions, encouragedby the mediator to do so. Significantly, Waldman explains that in thismodel “the mediator does not remove identified options from considerationsimply because those options conflict with existing social norms.”118

113. Lon Fuller, “Mediation—Its Forms and Functions,” Southern California Law Review44 (1971): 308.114. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, II:334.115. Fuller, “Mediation—Its Forms and Functions,” 326.116. Ibid., 328.117. Ellen Waldman, “The Role of Social Norms in Mediation,” Hastings Law Journal 48

(1997): 707.118. Ibid., 718.


On the other hand, Waldman’s other two models, the “norm-educating”and the “norm-advocating” models, both place the mediator in the role ofinforming the disputants as to relevant social and legal norms, which arethen 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 thenorms, whereas the “norm-advocating” mediator establishes the boundsfor any possible settlement based on the range of options allowed by thenorms that he or she advocates.In her discussion of “norm-educating”mediation,Waldman points out that

some American corporations have developed in-house mediation programsto resolve employee disputes that are not explicitly norm-educating yet arenonetheless informed by legal norms. Indeed, one corporation’s decisionto use only mediators with an employment law background leadsWaldman to conclude that in such cases “[t]he ‘objective perspective’ is,thus, informed by judicial norms and standards.”120 Likewise, althoughGoitein does mention that “upright elders” or “peace-loving persons”121

might play a role in extra-curial settlement, Geniza documents periodicallyallude to amediation board headed by a circuit judge.122 Therefore, membersof the court may well have been familiar with Jewish law and (like theemployment lawmediators) theymaywell have been norm-educators simplyby virtue of their educational and professional background. Thenorm-educating aspect of mediation would undoubtedly have been facili-tated by the introduction into themediation dialogue of expert legal opinions;as mentioned, Goitein explains that these opinions were composed andreceived by the court prior to the attempt to resolve the matter via mediation.On the other hand, the mediation system of the Jewish court can hardly

be said to have been “norm-advocating” as described by Waldman, forwhich she explains that “the mediator not only educated the partiesabout the relevant legal and ethical norms, but also insisted on their incor-poration into the agreement.”123 The documentary evidence itself suggeststhat this model is inappropriate, with the aforementioned agreement rene-gotiating a failed partnership into a loan at a fixed interest rate being theclearest example.124 In bringing to light that the conditions of this

119. Ibid., 730.120. Ibid., 736.121. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, II:335.122. See, for example, the case from Damīra, in Lower Egypt, mentioned by Goitein

(Ibid., II:339).123. Waldman, “The Role of Social Norms in Mediation,” 745.124. That is, BM Or 10126.6.


document violated classical Jewish legal prohibitions on interest-bearingloans, Udovitch is certainly correct that the court did not act in a“norm-advocating” role. However, Waldman herself points out that themediation of agreements in a norm-educating context may periodicallyinvolve overriding a norm without destroying the system on which thatnorm is based. Therefore, Waldman writes that “a settlement in whichone waitress trades her right to be free of admiring but objectifying com-ments at work for higher pay is less disturbing from a public policy view-point than a class action settlement in which thousands of women workers‘agree’ to continue to work in an obscene, insulting, and intimidatingenvironment. The norm-educating model is appropriate only in conflictsin which the relevant norms may be disregarded without weakening theideals upon which our government and legal structure are based.”125

Whereas it is clear that a loan at fixed interest transgresses classicalJewish legal prohibitions, it hardly seems likely that the single commercialrelationship described in BM Or 10126.6 would have weakened the idealsupon which medieval Jewish society was based. On the contrary, it wouldseem that this document, which Goitein described as unique among Genizadocuments in stipulating a fixed interest rate, represented an exceptionproving the rule that traditional prohibitions on interest-bearing loanswere indeed followed, at least overtly.126 The Jewish court’s imprimaturon a loan at fixed interest is clear evidence that those courts were notnorm-advocating, but this does not mean that the courts were exclusivelynorm-generating as opposed to norm-educating. Rather, the model ofelders as court representatives charged with the specific role of bringingcounterparties together and educating them as to classical Jewish norms,whether through the opinions of jurisconsults arrayed by the various liti-gants or simply in session with those litigants, suggests that the Jewishcourt served in a norm-educating role. At times, this process failed, butit would seem that the first stage of decision making, at least, gave the liti-gants the opportunity to come to agreement after having been educated asto Jewish legal norms in the area in which they wished to draw up a con-tract or to resolve a dispute.The reading of the court as “norm-educating” is further supported by the

general adherence of partnership agreements as they appear in the courtrecords of the Geniza to legal norms as canonized in classical Jewishlegal codes. The preponderance of agreements formed in line withJewish norms by merchants and traders understood to have been educated

125. Waldman, “The Role of Social Norms in Mediation,” 739–40.126. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, I:256.


as to those norms seems to have resulted in agreements that integratedthose norms; whereas a norm-generating process in which the counterpar-ties would have had less direction from the agents of the court would likelyhave resulted in a distribution of outcomes less reflective of classicalJewish norms. Both the general proximity of actual arrangements muchnearer to classical Jewish norms than envisioned by Goitein orUdovitch, and the occasional exceptions such as BM Or 10126.6, combinewith the foregoing analysis of court procedure to strengthen the depictionof the Jewish court as norm-educating.

Which “Norms”?

In reviewing the work of the court, it is important to distinguish betweenthe canonical norms of Jewish law in the domain of commerce and thedefault norms of the marketplace, to establish precisely which set ofnorms were those with which the court might have “educated” litigants.Although the legal experts who wrote opinions that came before thecourt serving in its role as mediator may have had personal experienceas merchants, as perhaps did the members of the court themselves, thecourt’s legal experts did not explicitly self-identify in their role as mer-chants when they were serving in their capacity as jurisconsults or asmediators. Therefore, merchants are certainly found as signatories notariz-ing court records; however, it was not in this capacity that they signedthose records. The norms to which jurisconsults made reference, and forwhich mediators found themselves in a norm-educating role, were notthose of the merchant community per se but were rather of Jewish societyas a whole, which those jurisconsults were presumed to represent. In this,the Jewish court is to be distinguished from the “Piepowder” or “LawMerchant” courts found in twelfth through fifteenth century Britain. Indescribing the Piepowder courts, Scott Belhorn writes that “Over thecourse of these several centuries, commercial law developed at a distancefrom the powers of the state, regulated by mechanisms operating mainlywithin the market. The remarkable feature of this history is that the verymerchants most affected by this law oversaw the arena in which it wasadministered. . .In effect, the laws of the fair were the merchants’ own evol-ving social norms.”127

Jewish law, as found in classical legal compendia, did not generally suf-fer the problem faced by medieval European merchants, which was that thevariation of local standards from borough to borough would have made it

127. Scott Belhorn, “Settling Beyond the Shadow of the Law: How Mediation Can Makethe Most of Social Norms,” Ohio State Journal on Dispute Resolution 20 (2005): 1010–11.


difficult for merchants to discover, much less conform to, such standards,begging the formation of cross-jurisdictional courts. This may haveallowed Jewish law to serve as a cross-jurisdictional law. On the otherhand, Menah

˙em Ben-Sasson does note, citing a responsum of Sherira

Gaon, that local practice in Fez was to indemnify agents serving principalsin a commenda from liability for trading losses except in the case of mal-feasance—a divergence from classical Jewish law that resonated withIslamic law.128 Jurisconsults were therefore clearly aware of some localnorms in writing their opinions. A norm-educating model for mediationpractice among the Jewish courts would allow for the possibility thatlocal traders actually formed their agreements according to that customeven after having been educated as to the classical sources of Jewish lawon the matter. This is once again to be contrasted with the Piepowdercourts, for which Bellhorn points out that lawyers “were generally deniedentrance to the piepowder courts.”129

Sherira Gaon’s acknowledgement of local custom in Fez is important,because it points to an understanding that Jewish legal norms were neitherpromulgated nor perpetuated in a vacuum, but responded to pressures fromlocal custom and from realia generally. Thus, a Gaonic responsumfamously refers to “h

˙ukm al-tujjār” (Arabic, “the law of the mer-

chants”),130 as the legal basis on which the practice of check-writingwas permitted, despite an explicit Talmudic ruling to the contrary.Whether the ultimate source of Rabbanite Jewish legal norms was quoti-dian practice itself or Talmudic texts, it would seem clear that involvingagents of the court in the mediation process could make the court thelocus of a dialogue between standards canonized in legal compendia andresponsa on the one hand, and customary practice and the pressures ofthe marketplace on the other. The “norm-educating” model allows, evenmakes for, this dialogue. This dialogue would also have provided animportant feedback loop, as those agents of the court continued to be indialogue with their own jurisconsults.

128. See note 53 above.129. Belhorn, “Settling Beyond the Shadow of the Law: How Mediation Can Make the

Most of Social Norms,” 1014.130. Sherira ben H

˙anina, Hai ben Sherira, and Isaac ben Jacob Alfasi, Teshuvot

ha-geʾonim: sheʾelot u-teshuvot mi-kama geʾonim uve-yih˙ud me-Rav Sherira gaʾon, mi-beno

Rav Hai gaʾon umeha-Rav Yis˙h˙aq Alfasi, ed. Albert Harkavy, Menah

˙em Kasher, and

Jeroham Fishel Perla (Jerusalem: S˙evi Hirsh, 1965), 215, #423. A second Gaonic respon-

sum, published in Nissim H˙ayyim Moses Modaʿi, ed. Shaʿarei S

˙edeq: Teshuvot

ha-Geʾonim (Jerusalem: Hos˙aʾat sefarim “Kelal u-Ferat

˙,” 1966), 165, concerning the practice

of keeping written accounts, refers to “minhagei ha-soh˙arim” (Hebrew, “the customs of the

traders”), although the latter custom hardly transgresses Talmudic norms.


The “norm-educating” model can be seen as creating a dialogue betweenthe legal opinions of jurisconsults and the needs of individual litigants, asthose litigants arrayed opinions (that is, responsa) in their favor and thenpresented them to the court, or Jewish judges requested those opinionsand then brought them to the court. Examining responsa and the processof their dissemination can shed some light on precisely whether judgesand jurisprudents made recourse to Talmudic norms or instead to someother set of customary rules. As mentioned previously, Waldman under-stands the selection of employment law practitioners as mediators bysome American corporations to influence the range of outcomes, althoughobviously not to limit that range. The regular citation of Talmudic norms inresponsa, even in the infrequent case in which they are presented to pointout a divergence in customary practice from those norms, suggests that jur-isprudents were aware of these norms and that litigants had at least a rudi-mentary exposure to those norms. Indeed, Jewish litigants’ presumedability to act intelligently in choosing a venue that would give their casea good hearing from among a number of different Sunnī courts as wellas dhimmī (Jewish and Christian) courts suggests that they may indeedhave been somewhat sophisticated as to the norms that would form whatWaldman calls as the “objective perspective” of the various venues inwhich they could seek recourse. This suggestion is bolstered by the exist-ence of Geonic legislative innovations from Babylonia in the wake ofIslamic conquest, which permitted the Jewish court to grant a divorcefrom a “rebellious wife” immediately instead of after the Talmudicallyimposed delay of one year. Robert Brody explains that “[t]his ordinancewas apparently motivated by the fear that Jewish women . . .might seekthe assistance of Islamic authorities and possibly even convert to Islamin order to dissolve their marriages without delay.”131 It is clear, then,that the Geonim themselves were aware of the competitive nature ofvenue selection and understood litigants to have at least an elementaryknowledge of the various expected baseline outcomes in each venue.It perhaps goes without saying that Jewish jurisconsults themselves were

aware of Talmudic norms, but even if this were the case, the fact thatresponsa of the period avoided citation of Talmudic material as often asthey cited it might suggest that jurisconsults were themselves actually“norm-generating” and unconstrained by statutory law. Although Geoniccodes such as Halakhot Pesuqot and Halakhot Gedolot (eighth and ninthcentury, Babylonia, respectively132), as well as Alfasi’s Halakhot

131. Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture,62–63.132. For a discussion of the dating of Halakhot Gedolot, see Ibid., 228ff.


Rabbati (eleventh century, Fez) largely recapitulate Talmudic material, thepopularity of these works does not necessarily suggest that the rank and fileof the Jewish community in the medieval Mediterranean was familiar withTalmudic norms. The possibility that even the learned elite in theMediterranean diaspora may have maintained a low level of Talmudiclearning is colorfully described by Abraham Ibn Daud in his “Story ofthe Four Captives.”133 Likewise, Maimonides reflects a similar sentimentin his apologia for composing the Mishneh Torah: “. . .our wise menhave lost their wisdom, and the understanding of our astute people is hid-den.”134 This suggests that Geonic jurisconsults could take at least someliberties in laying down the law against the grain of its Talmudic sourceswithout fear of being challenged.However, codificatory works seem to have mediated a dialogue between

Talmudic sources, responsa, and Geonic monographs that occasionallychallenged the opinions of the Geonic authorities. The interpolation ofGeonic responsa in the various recensions of Halakhot Gedolot135 pointsto a perception among copyists, and, perhaps, also among users of thesecodes, that a dialogue existed among these various sources of Jewishlaw. Thus, these codes served not only to communicate Talmudic normsand to make them more accessible to a population for whom thoseTalmudic sources were obscure, but also to react to the casuistry of theGeonic authorities to whom it had fallen to implement those norms. Thephenomenon of reconciling Talmudic sources with Geonic opinion,embryonic in Halakhot Gedolot, comes into fuller flower with Alfasi’sHalakhot Rabbati. Thus, the former code cites a relatively small numberof geonic authorities, notably the eighth century Suran Geonim Mari136

and H˙aninai137 as well as Yehudai,138 but Maimonides writes concerning

Halakhot Rabbati “[i]n this work, he [Alfasi] cleared up all the errors that

133. Abraham ben David Ibn Daud, Sefer ha-qabbalah: A Critical Edition with aTranslation and Notes of the Book of Tradition, ed. and trans. Gerson D. Cohen(Philadelphia: Jewish Publication Society of America, 1967), 65–66.134. Introduction to the Mishneh Torah, trans. Menah

˙em Elon (Elon, Jewish Law:

History, Sources, Principles, 1184).135. See Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture,

223ff. for a discussion of the various recensions of Halakhot Gedolot.136. Halakhot Gedolot, Laws of Circumcision, p.154.137. Halakhot Gedolot, Laws of Divorce Decrees, p.410.138. Halakhot Gedolot cites Yehudai a number of times, although these citations may be

the result of the close association between a work generally entitled Halakhot of RavYehudai Gaon, Halakhot Pesuqot, and Halakhot Gedolot, all of which were codificatoryworks, rather than to an attempt by Shimʿon Qayyara, the author of Halakhot Gedolot, toreconcile the rulings of Geonic authorities with their Talmudic sources.


had crept into the rulings of his predecessors,”139 and Alfasi cites theopinions of Geonim ranging from the eighth to the eleventh centuries.140

Each generation of codification, serving to “correct” Geonic opinions,would, therefore, have exerted a subtle pressure on subsequent generationsof geonic authorities, who would have expected that their opinions wouldbe reviewed by later codifiers who would examine those opinions in lightof the Talmudic sources. The dialogue between the various genres ofGeonic legal composition is brought into relief in the following citationfrom the ʿIt

˙t˙ur of the twelfth-century Provençali jurist Isaac b. Abba

Mari: “Rabbenu Samuel b. H˙ofni wrote in The Book of Partnership that

despite the fact that partnership funds are not commingled, the relationshipis still considered a partnership, and profits are to be divided; Rav [Isaac]Alfas(i) disagreed with him in a responsum, writing that this applies onlywhen the (partners) commingled the funds in a common purse.”141

Although it is not clear from the text of the ʿIt˙t˙ur that Alfasi’s responsum

actually cited Samuel b. H˙ofni’s monograph on partnership,142 Isaac

b. Abba Mari’s arrangement of the legal sources produces a dialoguebetween the two; and the arraying of Talmudic sources, Geonic mono-graphs, and responsa alike in the ʿIt

˙t˙ur as a synthetic code suggests a pro-

ductive tension among these diverse literary genres in the development ofthe substance of law.The act of composing responsa, then, can and 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 responsawere disseminated among the legal elite, and that the opinions of promi-nent Geonic jurists would both be cited and challenged later on. As iswell known, the working relationships between the communities of theMediterranean diaspora and the geonic scholarly centers of Babyloniaand Palestine were such that responsa were copied and broadly distributed,both for practical use and as study aids as local centers of learning

139. Moses Maimonides, Mishna with the Commentary of Moses b. Maimon, ed. YosefKafah

˙(Jerusalem: Mossad ha-Rav Kuk), I:47.

140. Eighth century: Yehudai (cited in Halakhot Rabbati, Yevamot 29b, Bava Qamma27b); eleventh century: Hai (cited in Halakhot Rabbati, Berakhot 5b ff.; Shabbat 54a,inter alia.).141. Isaac ben Abba Mari and Glanovsky, Sefer ha-ʻIt

˙t˙ur, I42, s.v. “Shituf”.

142. I have been unable to locate the specific responsum of Alfasi to which the ʿIt˙t˙ur

alludes. The material from the Book of Partnership of Samuel b. H˙ofni has been published

by Lewin in Lewin, “Ginze-qedem: meʾasef madaʻi li-tequfat ha-geʾonim,” VI:41; andFriedlander in Israel Friedländer, “Fragments of the Book of Partnership of RabbenuSamuel b. H

˙ofni,” in Festschrift zum siebzigsten Geburtstage David Hoffman’s, ed.

Simon Eppenstein, Meier Hildesheimer, and Joseph Wohlgemuth (Berlin: Louis Lamm,1914), Hebrew Section, 83–97.


developed.143 Geniza documents also allude to the copying of responsa foruse by local authorities,144 as well as the aggregation of such responsa incollections;145 such documents also attest to prominent local authoritiesboth reading and writing responsa, which were copied and distributedbeyond their own locales.146 As local centers of learning arose, the copyingand distribution of responsa of the Geonim of the academies throughout theJewish community as a whole may have been augmented by a similar prac-tice disseminating responsa of local authorities—as attested by theresponsa of Alfasi, which 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 interpret-ations underpinning their decisions and are likelier to address issues whichare broader than those required for the solution of the question which theywere posed.”147 As local centers of learning developed, particularly inQayrawān,148 Cordoba,149 and Cairo,150 local authorities would havebeen aware that that their opinions were subject to the same scrutiny astheir Geonic predecessors. This contributed to a legal environment inwhich jurisconsults would have been under some significant pressure to

143. Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 194.See also Moshe Gil, “The Babylonian Yeshivot and the Maghrib,” Proceedings of theAmerican Academy of Jewish Research 57 (1990).144. See, for example, TS 13 J 26.18, Verso l.24, published in Moshe Gil, Erets-Yiśraʾel

ba-tequfa ha-Muslemit ha-rishona, 634–1099 3vols. (Tel Aviv: Universit˙at Tel-Aviv

v˙e-Miśrad ha-Bit

˙ah˙on, 1983), Doc#356, II:661, a letter from the Gaon Daniel b. ʿAzarya

to Fust˙āt˙from 1054 or 1055, which mentions the arrival of a “copy of a responsum.”

145. See, for example, BM Or 10599.8, l.2, from the early thirteenth century.146. See, for example: AIU VII E 119 (probably from the late eleventh century, in Fust

˙āt˙and/or Cairo), transcribed, translated, and published in Mark R. Cohen, “The Burdensome

Life of a Jewish Physician and Communal Leader,” Jerusalem Studies in Arabic andIslam 16 (1993), 125–136; TS 13 J 21.25, transcribed, translated, and published in M.Frenkel, The Compassionate and the Benevolent: The Leading Elite in the JewishCommunity of Alexandria in the Middle Ages (Jerusalem: Yad Ben S

˙evi, 2006), Doc#71,

533–35; and TS 20.133 (from the early thirteenth century, in Alexandria), which recordsthe arrival in Alexandria of legal questions from “a distant land” to Maimonides.147. Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, 190.148. Ben-Sasson discusses the integration of Babylonian scholars’ work into the literary

production of the Qayrawānese authorities; Ben-Sasson, S˙emih

˙at ha-qehilla ha-yehudit

be-ars˙ot ha-Islam: Qairavan, 800–1057, 258.

149. Cf. the aforementioned story from Sefer ha-Qabbalah, in which Ibn Daud reports that“. . . all questions which had formerly been addressed to the academies were now directed tohim.” (Ibn Daud, Sefer ha-qabbalah: A Critical Edition with a Translation and Notes of theBook of Tradition, 66).150. TS 20.133, mentioned in footnote 146 above, suggests that queries were directed to

Cairo.


be “norm-educating” rather than “norm-generating.” Even where the locallevel of learning was quite low, the accessibility and popularity of bothbroad-based codes and halakhic monographs from the Geonim and fromAlfasi would have limited the freedom of jurists. That such codes werebroadly received can be inferred from the fact that there are extensive tex-tual witnesses to Alfasi’s code and Halakhot Gedolot alike among theCairo Geniza fragments, as well as extensive reference to Alfasi’s workin subsequent codes.151 Alfasi’s efforts in responding to the responsa ofGeonic authorities would have encouraged jurisconsults of eleventh cen-tury Fust

˙āt˙to pen responsa that did not do violence to his reading of

Talmudic sources. The dissemination of responsa among jurists, the econ-omic and commercial elite of the North African Jewish community,152 and,perhaps, even in the hands of a rank and file who could use responsa tosupport their claims in a Jewish court, would likely have encouraged jur-isconsults to issue their opinions carefully.The ever-present possibility that a judge might return a particular juris-

consult’s ruling on appeal to a more senior authority, diminishing the statusof the jurisconsult whose ruling was appealed if his opinion was publiclyoverruled, would indicate a pressure on jurisconsults to rule in a mannerthat was recognizably in dialogue with precedent, consisting of Talmudicsources; Geonic monographs and legal compendia; and the responsa ofother jurisconsults, including both the Geonim of the academies andother local jurisconsults. As the movement toward codification developedfrom the ninth century to the twelfth, legal compendia strove increasinglyto reach a population that was perceived as being incapable of interpretingTalmudic precedent;153 Maimonides’ code is even composed to supplantrecourse to the “Oral Law” itself as the source of legal decisions.154

Despite his attestation that “. . .I explicitly wrote that my sole purpose incomposing it was to alleviate the burden of those students who becauseof their impatience of spirit were not able to descend to the depths of

151. See, also, Menah˙em Elon’s statement that “Alfasi’s work supplanted many books of

halakhot written in his own time and even later. . .” (Elon, Jewish Law: History, Sources,Principles, 1172).152. Including individuals who served both as merchants and jurists/communal leaders

such as Nahray b. Nissim (see Goitein, Letters of Medieval Jewish Traders, 145–46 for abrief précis of the life of Nahray).153. See Menah

˙em Elon’s analysis of the statement of the eleventh century Spanish auth-

ority Joseph Ibn Megas in Elon, Jewish Law: History, Sources, Principles, 1183: “[r]ecourseto books of halakhot is superior to the research and analysis of the Talmud itself as a meansof ascertaining the law. . .”154. See the Introduction to the Mishneh Torah, cited by Elon (Ibid., 1185).


the Talmud. . .”,155 the Mishneh Torah seems to have been disseminatedquite quickly and with great popularity. This would have made it evenmore difficult for a local jurisconsult to incline away from Talmudicnorms as they were characterized in this compendium.As jurisconsults would have been under some pressure to toe the line

of Talmudic and Geonic precedent in their opinions, it seems likely thatlitigants in the Jewish courts would have been exposed to classical Jewishnorms through the mediation process. It is impossible to determinewhether it is the exposure to these norms in the courts, in the marketplaceas a whole, or in the familial clan-cum-coalition, which Greif describes asthe seat of Gemeinschaft norms, that leads to their adoption in agree-ments. However, that the legal agreements in the Geniza generallyreflect those norms to which all litigants would have been exposedwhen initiating, maintaining (such as when rendering accounts), or termi-nating partnership relations, would seem to challenge the proposal that thenorms reflected in those agreements actually reflected the distinctiveGemeinschaft norms of a subset of Jewish merchants. Rather, it wouldseem that these norms were implemented in part because of the influenceof the Gesellschaft, personified by the official representatives of themediation process. At the margins, where the Gesellschaft might nothave had such influence, the “norm-educating” role of the court wassuch that the legal opinions that it produced reflected the norms of theGesellschaft, even if the agreements that it produced did not always doso. This would have insured the integrity of the system and its fealty toclassical texts without sacrificing the flexibility required to meet theneeds of the marketplace.

The Social Role of the Courts

That Jewish partnership agreements generally seem to be in line withTalmudic norms may say something about economic practice, but it alsosays something about the social role of the courts in which these agree-ments were notarized. Although traders were undoubtedly acculturatedto local practice in the marketplace itself, the court provided a vehiclefor educating those traders to the norms of Jewish law both at the for-mation of and during the maintenance of those agreements. Althoughsome scholars of contemporary American law view the adversarial process

155. From Maimonides’ letter to the Alexandrian judge Pinh˙as b. Meshullam, cited in

Isadore Twersky, Introduction to the Code of Maimonides (Mishneh Torah) (New Haven:Yale University Press, 1980), 32.


of adjudication as putting pressure on a contractual relationship—StewartMacaulay, one of the founders of the study of the sociology of law,describes litigation as damaging if not damning to a relationship—itwould seem that the Rabbanite Jewish court simply provided a forumfor public acknowledgement of milestones in the life cycle of a partnershiprelationship. Therefore, agreements were initiated publicly and also termi-nated publicly with the execution of an acquittal or release. The Genizaeven reveals partnership release documents to which a renewal of thevery same partnership was appended at the bottom.156 It would seem,then, that the social function of the release document was that of a regu-larly scheduled cyclical audit of accounts, a milestone in a relationshiprather than its terminus; to this end, partnership agreements periodicallystipulate such a reckoning,157 and release documents often explicitly men-tion that exactly such a reckoning has taken place.158 Arabic documentsproduced in Islamic courts would make their way into the Jewish courts,but the attachment of renewals to the bottom of releases would suggest thatthe locus of the cyclical ritual of settling accounts (at least on paper) wasthe Jewish court.As a forum for mediation rather than adjudication, courts could focus on

maintaining relations rather than on negotiating their termination. Greif isundoubtedly correct that the reputation mechanism played an importantrole in preserving an individual’s future opportunities in the marketplace,and the information flow depicted in letters is clearly important for gaugingagents’ behavior. However, the courts seem also to have had a role in med-iating conflict and managing relationships; and the norm-educating role ofthe courts meant that in tandem with Gemeinschaft-like norms of thetrading community, economic actors were asked to measure their behaviorup against the norms of the Gesellschaft found in the works of contempor-ary Jewish jurists.

156. Renewals attached to releases: the document formed by the union of fragments TS16.23 and TS 10 J 5.2; TS Misc 27.4.29 (dated 1093 CE, in Fust

˙āt˙). The pattern of

contract-release-contract renewal is also suggested by cases in which the renewal appearson a separate document; cf. Bodl Ms Heb a 3.20 (dated 1098 CE, in Fust

˙āt˙), ULC Or

1080 J 73, and ENA 4020.2 (dated 1096, likely from Fust˙āt˙because the handwriting

seems to be that of the scribe Hillel b. Eli), which reveal three individuals executing releasesand subsequently (re-)initiating partnership relations with one another.157. See, for example, Bodl Ms Heb b 11.2 and TS 16.21.158. See, for example, Bodl Ms Heb a 3.8; ENA NS 1.90 (dated 1091 CE, in Fust

˙āt˙); TS 8

J 32.3 (dated 1162 CE, in Fust˙āt˙); and TS 10 J 4.16 (a fragment that is joined with TS 16.158

and TS 10 J 4.17; dated 1115 CE, in Fust˙āt˙).


Settlements Outside of the Jewish Court

Even though this paper has identified a correspondence between docu-ments executed in the Jewish courts and the Gesellschaft norms of theRabbanite legal system, such a correspondence may have been irrelevantfor most of the community of Jewish merchants. After all, Goitein believedthat much of the time “settlement was made out of court, or before Muslimnotaries.”159 In this section of the article, I will consider ways in whicheven those agreements made outside the Jewish courts were nonethelessinfluenced by Jewish Gesellschaft norms.First, in the general absence of Jewish documents emerging from Islamic

courts,160 it is difficult to conclude much about the relative frequency withwhich they were written or their contents, although it is possible and likelythat some such agreements did transgress the Gesellschaft norms—forexample, in following the structure of the Muslim commenda. ButGoitein’s understanding that a general tendency among merchants toemploy the commenda-form is what led Jewish merchants to Muslimcourts is challenged by the willingness of Jewish courts to execute agree-ments that followed the Islamic form; and, therefore, the use of Muslimcourts by Jews to execute commenda-style agreements may have beenless frequent than Goitein thought.However, the importance of what Goitein calls “out of court” settlement

cannot be underestimated. As mentioned, attempts at this sort of settlementwere actually part and parcel of court practice, attested to by existence ofscribal formulae for “settlement” documents.161 Saʿadya Gaon’s scribalmanual even contains a formula for a “settlement” document (Arabic,“s˙ulh˙”, a calque on the Hebrew “peshara”), which Saʿadya describes as

a frequently used document form.162 According to Saʿadya, the executingjudge “only turns to s

˙ulh˙when the claims of both litigants have been con-

sidered.”163 In his discussion, he refers to a statement from the BabylonianTalmud164 in which two camels are walking up a dangerous and narrowpath; the parties need to make a decision in the moment as to which

159. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World asPortrayed in the Documents of the Cairo Geniza, I:179.160. Although documents executed in the Jewish courts periodically allude to documents

“of the Gentiles” (Muslims): cf. TS 13 J 2.24 (dated 1139 CE, in Fust˙āt˙).

161. See, for example, Ben-Sasson, “Fragments from ‘The Book of Testimony andDocuments’ of Rabbi Saadiah Gaon,” 262–63.162. Ibid., 262 at ll.8–9.163. Ibid., 262 at l.10, “lā yaraʾ al-s

˙ulh˙ilā bi-h

˙aythu tatakāfī ʾl-h

˙ujjatayn lil-khas

˙mayn.”

164. Cf. Talmud Bavli, Sanhedrin 32b.


camel is to go first. Saʿadya explains that a document of s˙ulh˙

is writtenwhen the court examines the decision and then proceeds to affirm it.165

Although the extra-curial aspect of this “settlement” might seem at firstblush to remove commercial agreements from the norm-educating forumof the court, the role of the court in giving its imprimatur to these agreementssuggests otherwise. That counterparties were educated as to Jewish legalnorms through their regular recourse to the court as part of their processof maintaining long-term partnership 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 “settle-ment” decision would create an iterative feedback loop, through which coun-terparties would be aware of the relevant Jewish Gesellschaft norms whenthey next needed to arrive at a “settlement.” Furthermore, the documentaryevidence reveals that s

˙ulh˙

was understood by the Jewish community toinclude both the court’s affirmation of an extra-curial determination on thepart of the parties and actual court-implemented settlements.166

Jewish Courts, “Jewish” Structures: A Deliberate Choice

Whereas Jewish agreements seem generally to reflect the norms canonizedin compendia such as the Mishneh Torah, it would seem that the Jewishcommunity’s court process was structured such that individuals couldhave chosen to structure their partnership relationships otherwise.Therefore, in a broader, Islamic, environment that likely disseminatedIslamic legal norms through a system of jurisconsults and judges similarto that sustained by the Jewish community, and in which participants inthe marketplace were generally aware of Islamic legal norms, even if themajority of economic actors (to wit, Muslims) may not have been awareof Jewish legal norms, the choice of Jewish economic actors to makerecourse to Jewish legal norms must be seen as deliberate.

165. Therefore, the document formula contains the line, “u-badaqna ve-lo eskah˙na

li-akhruʿei hi minayhon de-qadim” (“we have searched and not found [reason] to overrulewhat has preceded”) (Ben-Sasson, “Fragments from “The Book of Testimony andDocuments” of Rabbi Saadiah Gaon,” 263 at ll.17–18).166. Therefore, TS 13 J 2.24 ratifies an agreement made by the parties on their own after

they squabbled for an extended period over a document executed in an Islamic court; TS 13 J2.2 (dated 1094 CE, in Fust

˙āt˙) confirms an agreement that seems to have been made among

the parties themselves (in this case, merchants in the “House of the Merchants”); as does TS12.37 (dated 1093 CE). On the other hand, Bodl Ms Heb b 11.9 reveals the mid-eleventhcentury community leader Judah b. Saʿadya writing to the leader of the community ofS˙ahrajt in the Nile Delta, asking the latter to “bring an end to the saga” through s

˙ulh˙.


There may or may not also have been economic reasons for principals andagents to choose the models of cooperation offered by Jewish law over thoseoffered by Islamic law. The practice of indemnifying the agent from losses asin a commenda arrangement produces a serious adverse selection problemthat has come to light in contemporary economic literature.167 Yet if medie-val Jewish and Islamic merchants were aware of this potential problem, theycould simply have dealt with it by limiting the commodities in which theiragents were permitted to trade;168 to this end, Goitein mentions that individ-ual merchants often specialized in certain commodities.169 On the otherhand, the commenda would seem to offer advantages of its own: givingthe agent an equity interest while indemnifying him from liability for losses,utilizing the commenda might have expanded the pool of possible agents toinclude those who would have otherwise lacked the capital to participate inventures whose payoffs were variable and in the distant future.170 However,the ʿisqa actually shared this characteristic in that it required no cash outlayon the part of the agent, and widely-available credit may also have made itpossible for agents participating in ʿisqa agreements to cover their losses.171

Although Udovitch believes the commenda to have been ideally suited forlong-distance trade, he muses that the flexibility of H

˙anafī law as to the div-

ision of profits between principal and agent is “probably allowed in recog-nition of the varying degrees of risk involved in obtaining, transporting,

167. See, for example, Mark Grinblatt and Sheridan Titman, “Adverse Risk Incentives andthe Design of Performance-Based Contracts,” Management Science 35 (1989), 807–822.168. Udovitch details the “Commenda with Limited and Unlimited Mandate” in Udovitch,

Partnership and Profit in Medieval Islam, 204ff.; likewise, Maimonides goes into detail as tothe consequences for an agent who trades outside the bounds of his discretion in his Laws ofAgency and Partnership, particularly 8:7.169. Goitein, A Mediterranean Society: the Jewish Communities of the Arab World as

Portrayed in the Documents of the Cairo Geniza, 155–56. Although bills of lading revealthat shipments as a whole contained commodities of many different sorts, and partnershipagreements often give explicit permission to the agent to trade in whatever commodity hesees fit, the legal structures allowing principals to limit their agents are available throughboth Jewish and Islamic law.170. Thus Udovitch argues that aspects of the commenda (as understood by Islamic law)

point to its economic suitability for long-distance trade; for example, he writes that “[s]incethe commenda was presumably used primarily for long-distance trade, this type of flexibilityfor the agent was almost a sine qua non for a profitable venture.” (Udovitch, Partnership andProfit in Medieval Islam, 212).171. Udovitch discusses the Islamic legal sources concerning credit in A.L. Udovitch,

“Credit as a Means of Investment in Medieval Islamic Trade,” Journal of the AmericanOriental Society 87 (1967), 260–264; surveying the Geniza documents, Goitein points outthat “[b]usiness was normally conducted on credit, and to a far higher degree, perhaps,than is the case in our own society.” (Goitein, A Mediterranean Society: the JewishCommunities of the Arab World as Portrayed in the Documents of the Cairo Geniza, I:197).


and profitably trading with different categories of merchandise,”172 whereasthe Jewish instrument actually contains this same flexibility. The most sig-nificant difference between the commenda and the ʿisqa, then, is the agent’sultimate liability for losses, an eventuality that may have been significant andperhaps even frequent, but was on balance certainly not the expected out-come for trade.173

However, if the Jewish preference for the ʿisqa form as opposed to thecommenda, as outlined in this article, was motivated by economic ratherthan cultural reasons, it would likely have been the case that Muslim mer-chants would also have employed a similar form. This might even suggestthat it was the Mishneh Torah, and not H

˙anafī law, that was a “medieval

Islamic Law Merchant”—a proposition that seems difficult to accept giventhat most merchants (that is, Muslims) would likely not even have beenaware of the norms of the Mishneh Torah. Correspondingly, if the ʿisqaform had a significant foothold in the commercial practice of Muslim mer-chants, one might expect H

˙anafī law, at least, to have acknowledged it in

some way, particularly in light of the prominence of custom in H˙anafī law.174

The fact that the two instruments seem to be economically closer to oneanother than previously thought emphasizes the volitional aspect in Jewishmerchants’ apparent choice of (if not a preference for) the Talmudic ʿisqaover the Muslim commenda. Having been regularly educated as to thenorms of Jewish law when they made their agreements, and yet retainingthe freedom to structure those agreements in other forms that may evenhave been popular among their Muslim colleagues, Jewish merchants’employment of “Jewish” models of commercial cooperation must be seenas a deliberate choice. That choice did not express a loyalty to the Jewishlegal system per se, because the court seems to have been willing to approveagreements that disagreed with Jewish legal norms, nor did it express an alle-giance to a small subgroup. Rather, it seems that the deliberate choice of iden-tifiably “Jewish” partnership models, structures, and commercial language inlegal documents reflected an affinity for the Jewish community as a wholeand the social and cultural institutions that it sustained.

172. Udovitch, Partnership and Profit in Medieval Islam, 196.173. That is, transactions with negative expected value would be avoided. If partnership

capital were viewed as a stock, then the difference between these two instruments could bedescribed as an embedded at-the-money put option held by the agent, freeing him from liab-ility if the stock decreased in value. The time horizon of long-distance partnerships may havebeen sufficiently long and the “risk-free” interest rate may have been sufficiently high rela-tive to commodity-price volatility to drive down the value of this option, essentially mini-mizing actual economic differences between the ʿisqa and the commenda.174. Udovitch discusses the role of custom in H

˙anafī law in Udovitch, Partnership and

Profit in Medieval Islam, 253.


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

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