A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam (review)

In A Common Justice, Uriel Simonsohn complicates the received understanding of the legal and social dynamics of Jews and Christians under Islamic rule. He emphasizes the range of judicial choices available to Christians and Jews and argues that legal plurality rather than structured judicial hierarchy should be considered the norm for Islamic society before 1050 CE. Jews and Christians routinely sought legal authorities outside their religious traditions if appealing to extra-religious courts would benefit their respective cases. Contrary to the picture of autonomous religious communities presented in earlier scholarship, Simonsohn argues that the range of legal choices made across confessional boundaries reveals social ties between individuals across those same boundaries. These social ties suggest that confessional groups had a much greater degree of interconnection than previously understood.

Simonsohn lays the foundation for his argument by examining pre-Islamic legal practices under the Roman and Persian empires. For both empires he notes that, while official hierarchical judicial systems were in place, it was not uncommon for individuals, whether Jewish or Christian, to seek alternatives to imperial courts. These alternatives included local respected individuals who may or may not have had religious ties to the individual and religious leaders. Religious leaders who desired their constituents to seek judicial recourse within their own religious communities preached and wrote against such outside judges. As Simonsohn notes, both Jewish and Christian religious leaders were attempting to more strictly define the boundaries of their religious communities and thereby maintain their social power even before the advent of Islam.

According to Simonsohn, legal pluralism was the norm even in the Arabian peninsula as the religion of Islam was formed. The Islamic judicial system developed over time and borrowed from both the local customs of pre-Islamic Arabian people and the customs of the Roman and Sassanian empires. Within the developing Islamic polity, the Christian and Jewish communities held onto most of their customs and property. In this changing context, Christians, Jews, and Muslims continued to seek out legal options that would be to their benefit. Simonsohn asserts that “judicial authority meant social power” (93). So seeking judicial solutions outside the religious community meant assigning social power to that authority.

Simonsohn argues that religious authorities attempted to restrict legal pluralism because it undermined their social power. Eastern and Western Syrian ecclesiastical leaders used several different strategies to hold onto as much power as possible. In addition to preaching against taking legal problems outside their communities, these leaders incorporated aspects of Islamic law into their own legal codes in an effort to keep Christian litigants from seeking outside judicial authorities. These leaders also sought out ties with Islamic political authorities in an effort to bolster their own power. Thus, a bishop might also act for the Islamic rulers in a political capacity. These accommodations to maintain social power resulted in increased ties across confessional boundaries.

In the more urbanized Jewish communities, religious authorities also attempted to maintain their social power in the face of the influence of Islamic judicial and political authority. Religious and judicial authority in Jewish communities was based less on hierarchy and more on social networks. Religious leaders in local Jewish communities derived their authority from affiliation with the geonim, Talmudic academies that functioned as centers of religious authority during the Abbasid Caliphate, local social prominence, mercantile ties, and scholarly achievement. These local judges and rabbis had little coercive power. This weakened their effectiveness and prompted some of their constituents to seek solutions in Islamic courts. Additionally, sometimes the differences in law prompted some in the Jewish community to use Islamic courts. Women seeking divorce might frequent Islamic courts because the dissolution of marriage would not have the twelve-month waiting period mandated by some Jewish law. Another factor that motivated both Jews and Christians to seek Islamic courts was trade. Merchants regularly traded between confessional groups, and both trade agreements and lawsuits would be made...