Living with the Law: Gender and Community Among the Jews of Medieval Egypt 9781512823806

Table of contents :
Contents
Jewish Marriage 101: In Lieu of a Glossary
Notes on the Text
Abbreviations
Introduction
Chapter 1 The Legal Arena: A Social Interpretation
Chapter 2 Gender and Status in Geniza Courts
Chapter 3 Compromising Women: Gender and Property in Divorce and Married Life
Chapter 4 The Ties That Bind: Kinship Support and Communal Participation
Conclusion
Notes
Bibliography
Index of Geniza Shelfmarks and Maimonidean Responsa
Index
Acknowledgments

Citation preview

Living with the Law

JEWISH CULTURE AND CONTEXTS Published in association with the Herbert D. Katz Center for Advanced Judaic Studies of the University of Pennsylvania Series Editors Shaul Magid, Francesca Trivellato, Steven Weitzman A complete list of books in the series is available from the publisher.

Living with the Law Gender and Community Among the Jews of Medieval Egypt

Oded Zinger

University of Pennsylvania Press Philadelphia

Copyright © 2023 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-­4112 www​.upenn​.edu​/pennpress Printed in the United States of America on acid-­free paper 10 9 8 7 6 5 4 3 2 1 Hardcover ISBN: 978-­1-­5128-­2379-­0 eBook ISBN: 978-­1-­5128-­2380-­6 Library of Congress Cataloging-in-Publication Data Names: Zinger, Oded, author. Title: Living with the law : gender and community among the Jews of medieval Egypt / Oded Zinger. Other titles: Jewish culture and contexts. Description: 1st edition. | Philadelphia : University of Pennsylvania Press, [2023] | Series: Jewish culture and contexts | Includes bibliographical references and index. Identifiers: LCCN 2022028841 | ISBN 9781512823790 (hardback) | ISBN 9781512823806 (ebook) Subjects: LCSH: Jews—Egypt—History—To 1500. | Jewish women—Egypt—Social conditions—History—To 1500. | Jewish marriage customs and rites—Egypt— History—To 1500. | Jewish courts—Egypt—History—To 1500. | Courts—Egypt—History—To 1500. | Marriage (Jewish law) | Marriage law—Egypt. | Cairo Genizah. Classification: LCC DS135.E4 Z56 2023 | DDC 962/.004924—dc23/eng/20220701 LC record available at https://lccn.loc.gov/2022028841

Contents

Jewish Marriage 101: In Lieu of a Glossary

vii

Notes on the Text

xi

List of Abbreviations

xv

Introduction

1

Chapter 1. The Legal Arena: A Social Interpretation

15

Chapter 2. Gender and Status in Geniza Courts

53

Chapter 3. Compromising Women: Gender and Property in Divorce and Married Life

78

Chapter 4. The Ties That Bind: Kinship Support and Communal Participation

110

Conclusion

143

Notes

157

Bibliography

217

Index of Geniza Shelfmarks and Maimonidean Responsa

241

Index

249

Acknowledgments

253

Jewish Marriage 101 In Lieu of a Glossary

While this study is not a legal study of the formation and dissolution of Jewish marriage, some basic familiarity with the structure of Jewish marriage in the medieval Islamic world is needed to understand the dynamics of marital disputes explored in this book.1 This short section is meant to orient the non-­specialist in the most basic terrain of Jewish marriages while introducing the vocabulary encountered throughout the book. To facilitate quick perusal, important terms appear in bold.2 The formation of Jewish marriages took place in three basic stages. In the engagement (shiddukhin),3 the two parties or their representatives (typically the groom and the bride’s male relatives) declared their intention to marry and agreed upon the terms of the marriage. This stage did not change the personal status of the parties, and the agreement could be dissolved like any monetary agreement. In other words, one could be liable for breach of contract for breaking an engagement agreement, but no divorce was required. Around the beginning of the twelfth century, engagements began to be recorded in special deeds.4 In the betrothal (erusin), the basic act of marriage (qiddushin) was executed and the parties became married. However, they still did not live together nor perform the basic duties of marriage in terms of sex or maintenance. The marriage was finally completed when the couple began to live together (symbolized by standing together underneath the marriage canopy) and assumed their monetary and conjugal roles.5 While separate deeds of engagement and betrothal were not required, the indispensable marriage agreement was the ketubba (pl. ketubbot), which outlined the basic monetary arrangements of the marriage and further conditions meant to regulate married life.6 As set out in the ketubba (and in other prenuptial agreements), Jewish marriage is built upon several monetary arrangements.7 These involved

viii

Jewish Marriage 101

unequal reciprocal monetary acts and commitments from both sides that created a new entity, not unlike the way merchants would pool resources to create an economic partnership.8 The dower that the husband gave to his bride consisted of several payments. The basic ketubba (ʿiqqar ketubba) was a standard minimum payment whose size depended on whether it was the bride’s first marriage or not (for example, in the Babylonian tradition, a virgin bride would be given 25 zuz, a silver coin, and a formerly married woman, 12.5 zuz).9 The additional ketubba (tosefet ketubba) was usually a much more significant sum (indeed it seems that occasionally it subsumed the basic ketubba)10 and was usually given in gold coins (dinars). The additional ketubba was in turn divided into an advance and a delayed portion. The advance portion, called the early marriage payment (Heb. muqdam, Ar. muqaddam), was given to the bride usually at the qiddushin or nissuʾin.11 The delayed portion, called the delayed marriage payment (Heb. meʾuḥar, Ar. muʾakhkhar), was a promise to be paid to the wife at the termination of the marriage, at divorce or widowhood.12 This delayed marriage payment was usually at least twice the size of the early marriage payment and forms a central focus of the discussion in Chapter 3. The dowry (Heb. nedunya, Ar. qumash, jihāz, shūra/shuwār) that the bride brought into the marriage consisted of two parts. The part that appears regularly in this book is what is called in legal works “iron sheep property” (Heb. nikhse ṣon barzel), though it is usually simply referred to as “dowry” or “ketubba” in letters and legal records. This was property recorded in the ketubba, or in a separate document called taqwīm, usually together with its worth (for example, “two pillows worth one dinar”). Theoretically, the husband had the right to use and manage this property and was entitled to any profit derived from it (usufruct) but had to receive the wifeʼs permission if he wanted to mortgage or sell it. However, “it cannot be stressed enough that during the classical geniza period the dowry did not consist of cash given to the husband, but the wife’s objects, thus emphasizing that it was her property.”13 The husband was responsible to the wife for the value of these items as stated in the ketubba, even if their market price decreased or they became worn with use.14 As the ketubba states, all of the husbandʼs property (“even the cloak on his back”) stood as security for his debt to the wife. Moreover, many ketubbot included a condition that the husband would pay the ketubba from choice property rather than from low-­quality property as stipulated in Mishna, Giṭṭin 5:1. In medieval Egypt, the value of the dowry was significantly larger than the dower and constituted the main economic basis of the new couple.

Jewish Marriage 101

ix

The other part of the dowry was the property the wife brought into the marriage that was not recorded in the ketubba. This part is called in legal works melog property. This could be items or real estate possessed by the wife at the time of marriage or property obtained during the marriage, for example, when a wife received an inheritance. The husband had no control over this property nor was he held responsible for it. Because this property was not recorded in the ketubba, we hear much less about it in Geniza documents, and, indeed, one suspects that most Jews may not have understood the exact nature of melog property. Occasionally, a husband would give the wife free disposition (Ar. taṣarruf ) of the dowry and she in return would release him from responsibility for it, thus, in effect, rendering iron sheep property into melog property. During the marriage, the husband had to provide the wife with “her food, her clothing and her conjugal rights” (Exod. 21:10). In addition to these basic obligations, husbands were required (with various stipulations and conditions) to provide medical care if their wives fell ill, ransom them if they were taken captive, and bury them when they died. In return, husbands were entitled to their wives’ labor and the fruits (i.e., earnings) of their property and inherited them when they died.15 These mutual obligations were reciprocal and allowed for various exchanges. For example, while Jewish Law typically linked ­women’s right to maintenance with the husband’s ownership of her labor, Geniza marriage documents often declare that the wife would retain her earnings in return for relinquishing her right to be clothed by the husband.16 While marriage in Judaism (and in Islam) is religiously sanctioned, it is also severable. Jewish divorce (gerushin) involves the husband (or his proxy) giving the wife (or her proxy) a writ of divorce (get). Divorce is fundamentally asymmetrical: the Mishna states that “while a woman may be divorced with her consent as well as without it, a man can give divorce only with his full consent.”17 A husband does not need to have a reason to divorce his wife, while she can demand that her husband divorce her only in several well-­defined circumstances.18 If a man desired to divorce his wife, he had to pay her the delayed marriage gift and return the dowry. If a wife desired to be divorced she often had to appease the husband, usually by monetary concessions, until he consented to give her a get. Chapter 3 discusses an important procedure called the ransom divorce (Ar. iftidāʾ), whereby a wife would relinquish her claim to the delayed marriage gift, and the court would force the husband to divorce her.

Notes on the Text

This study is based on hundreds of Geniza documents, many of them unpublished. With very few exceptions, images of all these documents can be accessed through the Friedberg Geniza Project (https://​fjms​.genizah​.org/). Whenever a Geniza document is mentioned, its shelfmark is cited in the notes in an abbreviated form. These abbreviations are explained in the index. The notes also refer to the edition of the document, if it was published, and to important discussions of it. Fuller bibliography can be found through the aforementioned Friedberg Geniza Project. The documents examined for this study are written in three languages, Hebrew, Arabic, and Aramaic, and one sociolect, Judeo-­Arabic, that is, Middle Arabic written in Hebrew letters and containing a significant Hebrew component.1 Hebrew (and in the rare case Aramaic) transliterations follow the Jewish Quarterly Review guidelines, except that ‫ ט‬is rendered as ṭ, ‫ צ‬is rendered as ṣ, ‫ ק‬as q, and final heh without a mappiq is usually not indicated. Arabic transliterations follow the guidelines of the International Journal of Middle Eastern Studies. For Judeo-­Arabic, however, there is no satisfactory transliteration system.2 Since we do not know how words were exactly pronounced, we must transliterate them as if they were classical Arabic. However, translating Middle Arabic as if it were classical Arabic means discarding all the features that make it unique. Yet transliterating it with its particular features risks evoking the puzzlement of Arabists. One solution is to simply reproduce the Hebrew script; however, this would alienate those who can easily understand the text but not the script. To take one­ ­simple example, Geniza documents spell the Arabic word raʾīs in various ways (‫ ראיס‬,‫ ריס‬,‫)רייס‬. Any attempt to maintain the distinction between these forms would be futile and confusing, and I followed Goitein, Blau, and Friedman in using rayyis.3 In general, I have tried to tread a middle path by transliterating Judeo-­Arabic as if it were classical Arabic while noting several of its unique features.

xii

Notes on the Text

While historians often lament our ignorance of even the mere names of premodern non-­elite Jews, Geniza documents are overflowing with names. Jewish men in medieval Egypt sported an often bewildering assortment of names. A man would typically have a Hebrew name as well as an Arabic name, often in the form of a patronym or a teknonym related to the Hebrew meaning. For example: Abraham=Ibrāhīm=Abū Isḥāq, Ephraim=Abū Kathīr (due to Genesis 48:19), Ḥalfon=Khalaf (due to the similar root), Judah=Asad or Sibāʿ (both meaning “lion” in relation to Genesis 49:9), Yefet=Ḥasan (“beauty”), Yeshuʿa=Abū Faraj (“Salvation”), and many more. To these names were added honorifics, nicknames, occupations, and nisbas (adjectives usually indicating place of origin, like al-­maghribī). Jewish women usually had only Arabic names (Hebrew names often belong to women of European origin) that indicated mastery: Sitt al-­Dār (“lady of the house”), Sitt al-­Tujjār (“lady of the merchants”), Sitt al-­Ahl (“lady of the family), and so forth. Common Hebrew names and place-­names are given in their English form (“Solomon” rather than “Shelomo,” “Jerusalem” rather than Yerushalayim or al-­quds, “Cairo” rather than al-­Qāhira). Fusṭāṭ, the Arab settlement-­turned-­city that served as the capital of Egypt before the founding of Cairo by the Fatimids in 969 CE and where the Geniza was found, is referred to as “Fustat.” Arabic names are given in full transliteration, though I have tended to standardize them, that is, both ‫ אסחאק‬and ‫ אסחק‬are rendered as “Isḥāq.” Especially in legal documents, both men and women were identified by their fathers and occasionally their grandfathers: “son of ” is rendered as “b.” for ben, bar, or ibn; “daughter of ” is rendered as “bt.” for bat, berat, ibnat, and bint. When well-­known personalities are mentioned, I have used the common appellations (Maimonides, Abraham Maimonides, Saladin). All translations are my own, unless indicated otherwise. When previous English translations exist, I prefer to use them while making adjustments as needed. I strove for a middle ground between a clunky literal translation and a freer translation more pleasant to the modern English ear. In translating legal documents, I often did away with the standard blessings and honorifics attached to male names (“may the Rock preserve him,” “our master and teacher,” and “his honor, greatness and holiness”) as well as some of the legal verbiage. The authors of Geniza letters often address the recipient in the third person. To avoid confusion, I usually translated such cases with the second person “you.” In transcriptions and translations of Geniza texts, I have followed these conventions:

Notes on the Text

xiii

Italics Hebrew or Aramaic word or phrase in an Arabic passage [Square brackets] a lacuna in the manuscript //slashes// text added by the scribe above the line (/a slash/ = a single letter added) a word erased by the scribe Strikethrough (Parentheses) words I added for clarity or to complete abbreviations . . . omission of words or phrases within the text When it comes to dating, the most common calendar used by Geniza documents is the Seleucid one, followed by anno mundi and the Islamic hijrī calendar. I always give the year in the Common Era (CE). The two most common coins mentioned in Geniza documents are the gold dīnār (henceforth: dinar) and the silver dirham. A dirham could be either of good quality (nuqra) or of low quality (waraq). While exchange rates varied, on average, 1 dinar = 13.3 nuqra dirhams = 40 waraq dirhams. S. D. Goitein offered the valuable estimate that 2 dinars was the average monthly income of a middle-­class family.4

Abbreviations

AJS Review BT JMP Med. Soc.

MT

Association of Jewish Studies Review. Babylonian Talmud. Mordechai Akiva Friedman. Jewish Marriage in Palestine: A Cairo Geniza Study. 2 vols. Tel Aviv: Tel Aviv University Press, 1980. Shelomo Dov Goitein. A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza. 6 vols. Berkeley: University of California Press, 1967–93. Mishne Torah.

Introduction

Around the middle of the twelfth century a suffering Jewish wife petitioned Samuel b. Ḥananya, the head of Egyptian Jewry in the years 1140–59, for help. According to the petition, her husband had terrorized her late father and herself. He demanded that she accept a divorce without the due monetary compensation, saying, “Look at the misery and fear your father was in. Do what will release me and not hurt you.” While the details of what followed are not entirely clear, it appears that the divorce did not take place and the husband left his wife and moved to Cairo. He left behind a bill of divorce that she could activate if she so chose, but likely at the cost of losing her financial compensation.1 Apparently, the wife asked her husband to return, and when he refused she followed him to Cairo to demand that he come back home, arguing that in an earlier agreement he took it upon himself not to put her up in Cairo: He an[swered] to my face: “You have no home with me.” I asked him: “[For] what reason?” He said: “You will not [be my wife/ be divorced] until you agree to a delayed marriage payment of two dinars.” I left the city (i.e., Cairo) to my home [and stayed there for] five months. He provided neither for me nor for my family. I thought that he would act like a virtuous man, the matter would be resolved somehow, and we would not burden his Excellency, our lord. However, when he sensed that I intended to inform his Excellency of the matter, he started demanding a reconciliation (ṣulḥ) between us.2 The wife refused to reconcile without first obtaining Samuel’s ruling, which she clearly expected to be in her favor. To help secure a favorable ruling she presented her case and claimed that she was a woman “cut off from social support. I have no man. I have only God, the exalted, and your excellency. [Your excellency is] the father of orphans and the judge of widows (Psalms 68:6).”

2

Introduction

Her petition ends with the pious pleading: “May God, the exalted, not lock your gate in the face of anyone of Israel . . . and may He bring about the days of the Messiah in your lifetime, so let it be. Amen and Amen.” One need not be a professional historian to be captivated by this story. The wifeʼs narrative about her failed marriage lures us in and elicits our sympathy for her plight across the divide of language, space, and time. The snippets of realistic dialogue, the travel to and from Cairo, and the mixture of pity and indignation, mercy and justice, create an appealing drama within the confines of the more or less standard format of contemporary petitions. The qualities intended to capture the attention of Samuel b. Ḥananya in the twelfth century are still at work in the twenty-­first century, making this petition—and numerous others like it—a particularly alluring historical source. Our appreciation grows when we consider the paucity of sources about everyday life in the medieval Islamic world. Relatively little documentary material has survived from the Islamic Middle Ages outside of Egypt, and scholars are left trying to reconstruct social history from literary works, such as chronicles, legal compendiums, and biographical dictionaries.3 While such literary sources are often rich in certain types of information, they lack the immediacy of documentary sources, which were not composed with an eye to posterity. Particularly rare are writings of medieval Jewish women, and Geniza letters are our best window to their experiences.4 Beyond its human appeal, the woman’s petition also reflects the ways legal considerations informed and facilitated the negotiations of marital disputes and how such negotiations took place both within and without legal institutions. In order to be released from the monetary obligations recorded in the marriage contract, the husband tried to intimidate his wife in the hope that she would release him from them. When that did not work, he opted to leave the home while issuing a bill of divorce and dangling it before his wife’s eyes— another move that combined legal and non-­legal action. For her part, the wife relied on a previous legal obligation, made either in their marriage contract or in a settlement after a prior marital dispute, in which the husband committed that he would not put her up in Cairo. Her petitioning of the head of the Jews was another common move, often employed after matters in the Jewish court had reached an impasse. Ironically, apparently it was the husband’s suspicion that his wife might appeal to Samuel that led him to ask for a reconciliation, a move that pushed her to do exactly that. Probably fearing that communal institutions would pressure her to compromise, she appealed to the head of the Jews in order to strengthen her position in the looming negotiations.

Introduction

3

These various moves and countermoves were carried out against the backdrop of a variety of social expectations, such as the wife’s (feigned?) expectation that her husband’s manly virtue would be enough to bring him around, or her hope that the head of the Jews would assist a woman who claimed to be cut off from social support and entirely reliant on his and God’s help. The husband was aware that the Jewish legal institutions preferred mediated compromise over decisive rulings and thus were likely to seize on his asking for reconciliation. The importance of such expectations is probably most apparent in the way the wife stressed Samuel’s obligation to help the downtrodden for he is “father of orphans and the judge of widows” even though she was not a widow and her children (presumably included in the reference to “my family”) were not orphans. While conveying a rich interplay of moves and countermoves, expectations and disappointments, the petition also leaves us with numerous open questions. What caused the coupleʼs marital problems? Had their negotiations taken place in court or outside of it? How typical was such marital unhappiness in twelfth-­century Egypt? Why was it that the local legal institutions failed to resolve the case and the woman had to appeal to the head of the Jews? What was the husband’s side of the story? What was Samuelʼs reply? Is this case specifically Jewish, or could similar things happen to a Muslim couple next door? The petition raises these (and other) questions but answers none of them, fueling our curiosity and propelling our inquiry as we strive to understand the plight of this twelfth-­century woman. It is thus a valuable historical source not only for the information it contains but also for the possibilities it raises and the questions it leaves tantalizingly unresolved. This book is an attempt to answer some of these questions by exploring the dynamics of marital disputes of Jews in medieval Egypt (1000–1250). To do so, it brings together the three themes in its title: law, gender, and community. In this book “law” usually means law as it was experienced and lived by Jews rather than law as it was developed by legalists in normative texts. This lived law was usually not directly opposed to Jewish Law (halakha) and yet, as is shown in the book’s chapters, it had its own dynamics, logic, and power as a social practice. Thus, my interest is not in the difference between “law in the books” and “law in practice” but in the human and social nature of legal practice and legal culture in medieval Egypt.5 Where necessary, of course, explanations of the legal background and references to Jewish legal canon will be given, but the focus of discussion will always be on how law figured in the

4

Introduction

marital lives of ordinary Jews, whether through legal documents, institutions, or acts. I contend that this lived law, with its social, political, and gendered dynamics, is what Jewish Law meant and looked like for most Jews in medieval Egypt, and perhaps also to most medieval Jews in other regions. Egyptian Jews patronized a remarkably vital legal system, as can be seen in the thousands of Jewish legal documents that survived from medieval Egypt (which are clearly a small portion of the documents that were produced). Yet their legal culture cannot be said to have been litigious nor does it exhibit the penchant for fastidiousness that is usually associated with legal professionals and lawyers (which did not exist).6 While the surviving documents certainly exhibit a variety of legal technicalities, it is clear that the procedure in court was not steeped in legal language and was remarkably open to Jews from various social strata.7 Law did not derive its authority and power, as argued by Bourdieu for the modern period, from being concentrated and quarantined into a specialized knowledge, profession, and physical space.8 Law was not a last resort to the urban Jewish communities of Fatimid and Ayyubid Egypt. Legal institutions, legal documents, and litigation were deeply enmeshed into the lives of medieval Egyptian Jews. Much of the following pages is dedicated to exploring the vigorousness of Jewish legal practice in medieval Egypt, explaining its embeddedness in social life, and drawing out the consequences for the dynamics of disputes and realities of married life. It is often claimed that the Jewish court was the cornerstone of Jewish communal autonomy, but in this book I argue the flip side of this statement, that law itself was deeply communal. By this I mean that the “dynamics, logic, and power” of law mentioned above had everything to do with the nature of the Jewish communities of medieval Egypt. These were relatively small communities (large compared to Jewish communities in Christian Europe but small compared to the surrounding Muslim and Christian population) with a central political leadership. As minority communities they enjoyed a legal semi-­autonomy while being incorporated into a broader Islamic legal arena and maintaining complex relations of dependency with the Muslim government.9 As argued at length in Chapter 1, this conflation of autonomy, incorporatedness, and dependency translated to a powerful negotiation position for Jewish litigants vis-­à-­vis communal institutions, on the one hand, and an enhanced reliance of these institutions on social networks, on the other hand. Furthermore, these communities were embedded within a wider Islamic society and shared its practices and values, such as patronage, intercession, solidarity, and the profound role of social relationships. As a result,

Introduction

5

the dynamics of lived law were deeply rooted in the communal social fabric and saturated with consideration of communal authority.10 These themes of law and community are joined through the theme of gender. As a category of analysis, gender is particularly useful in exploring the inequalities of power that abound within communal law.11 Thus, the chapters that follow explore the experiences of Jewish women in legal institutions and the ways they operated within the legal arena. Not only does this provide us with a deeper understanding of women’s lives, but the experiences of those in legal, economic, social, and cultural disadvantage allow us to go beyond the image propagated by legal institutions themselves and see these institutions in a new light. The pressures women faced at court and at home expose the way communal legal institutions were embedded in the wider social fabric. The tactics with which women countered these pressures, ranging from using family ties to appealing to Muslim courts, illustrate the complex relationship between individual agency, social networks, gendered expectations, and communal authority. Gender thus provides a view from below of lived law and Jewish communal life.12 This study is made possible by the riches of the Cairo Geniza, a unique trove of manuscripts found in the Ben Ezra Synagogue in Fustat, from which hails the petition presented at the beginning of this introduction (see Figure 1).13 The Cairo Geniza is estimated to have contained close to 400,000 items, of which about 10 percent are of a documentary nature—everyday writings produced for a practical need. The rest are (often fragments of ) literary works meant for prosperity. Documents come in a variety of genres, with the two most relevant to this study being letters and legal records.14 Those from the period covered by this study were written mostly in Judeo-­Arabic (essentially Arabic written in Hebrew characters with a varying Hebrew and Aramaic component), Arabic, Hebrew, and Aramaic, with the same document often mixing different languages.15 For example, the wife’s petition opens and closes with Hebrew blessings while the informative part of her request is written in Judeo-­Arabic. Discovered toward the end of the nineteenth century, Geniza documents have been providing scholars with an unparalleled panorama of social realities in Fatimid and Ayyubid Egypt and the Levant (969–1250 CE). They also offer precious glimpses into the private lives of ordinary men and women usually overlooked in traditional Jewish and Muslim literary compositions. In his magnum opus, A Mediterranean Society, Shelomo Dov Goitein provided a solid basis for the study of the documentary Geniza as well as

6

Introduction

promoted it as a central source for the study of medieval Islamic and Mediterranean history.16 The work of Goitein’s students and their students has mostly proceeded along the lines set out by the first three volumes of A Mediterranean Society: economic activity, the community, and the family.17 One important aspect that Goitein, by his own admission, covered in only a preliminary manner is law and the work of legal institutions regarding family matters.18 In recent years, Eve Krakowski and Phillip Ackerman-­Lieberman have made important contributions to our understanding of Geniza legal records and the institutions that produced them, helping to fill some of the void (see more in Chapter 1 on their contributions). The study of legal practice is important, for while there is a vast literature on Jewish Law, historical studies regarding the actual work of premodern Jewish courts have lagged far behind.19 A charitable reading of this neglect would point to the scarcity of documents relating to medieval Jewish legal practice. The Geniza, however, preserves an unrivaled critical mass of original legal documents that are the envy of historians of Jews in the premodern world, so we have no such excuse. This study joins the work of Krakowski and Ackerman-­Lieberman, and scholars working on Jewish legal practice more broadly, by making three methodological contributions all aimed at exploring the communal nature of lived law among the Jews of medieval Egypt. First, inspired by Law & Literature studies, I read legal records with a literary sensitivity to the narratives they promulgate, how they present the actions and words for both litigants and communal institutions, and about what they choose to keep silent. Second, in order to flesh out the social background of individual cases, I often collect a range of information about the parties involved from other Geniza records that serves to position the original record in a new light. Finally, and most importantly, I combine the study of legal documents with that of personal and communal letters involving lived law. Litigants, legal authorities, middlemen, and uninvolved parties often wrote to one another to influence, bypass, or pass information about contemporary cases. Such correspondence offers a behind-­the-­scenes view that allows us to situate the legal institutions within the broader social fabric. As far as I am aware, the ability to look at legal practice from a combination of both legal and epistolary records has no rival in Jewish, Muslim, or Christian communities in medieval Europe or the Islamic world and is a major factor in our ability to study law as it was lived by a medieval community. Geniza documents tell stories, and one of the aims of the book is to recover the life stories of Jewish women and men. Each chapter thus opens

Introduction

7

with a story of marital dispute taken from a Geniza document that serves to set the stage for the themes explored in the chapter. Each chapter is further interspersed with micro-­studies of specific cases that both support the analysis and give a taste of medieval married life and the legal arena as a lived experience.20 By reducing the frame of analysis, these micro-­studies expose the dynamism of the legal arena and the ways individuals acted within it, revealing a particularly vigorous medieval Jewish legal culture. Why marital disputes? Beyond the intrinsic pleasure of peering into the marital lives of individuals across the gap of centuries, this study explores marital disputes as the sites of intense confrontation and cooperation between spouses, their families, the Jewish community, and, occasionally, the Muslim state.21 The family was the basic unit of association, regulating transfer of wealth within and across generations, organizing the division of labor in the household, and legitimizing sexual gratification, biological reproduction, and the socialization of resulting progeny.22 Indeed, the family is an institution in which the three themes of the book converge. Jewish law claims control over the erection and dissolution of family, as well as over monetary, sexual, and labor aspects of married life. The family is traditionally seen as the basic building block of the community with, on the one hand, central communal rituals and socialization taking place in family settings and, on the other hand, the legitimization and valorization of the family highlighted in the normative religious texts.23 Finally, gender difference underlies the fundamental union at the heart of the nuclear family, as it was understood in the Middle Ages. Situated at such a central crossroad, the family was a central axis around which various other issues were negotiated: the relationship between husband and wife, power struggles with in-­laws, communal politics, and the relationship between religious communities. Marital disputes thus brought to the surface fundamental social tensions and caused them to be put on record, to the delight of historians. Paraphrasing Geertzʼs famous statement that “The locus of study is not the object of study. Anthropologists donʼt study villages . . . they study in villages,” we may say that we do not study marriage disputes; we study in marriage disputes.24 Yet in a more fundamental way, marital disputes do allow us to shift our attention from the family as a formal institution to the everyday negotiations of married life. Scholarship on “the Jewish family” after Goitein tended to examine the so-­called “status of women,” and focused on the formation and dismantling of marriage (i.e., on such practices as matchmaking, engagement, marriage, and divorce).25 Marital disputes take place between these

8

Introduction

formal nodes and allow us to go beyond “the elementary structures of kinship” to a more dynamic and malleable understanding of families.26 Disputes are lengthy, tumultuous, and often conducted in gray zones mixing legal action, backroom maneuvers, displays of emotion, and intricate accommodations. More than is the case in formal nodes of marriage and divorce, marital disputes attest to spouses’ agency without diminishing the role of legal framework, communal pressure, or the involvement of various family members. Far from ignoring formal structures, a focus on marital disputes enables the study of how individuals accommodate, appropriate, bypass, exploit, and are occasionally crushed by such structures.27 Focusing on the experiences of individual women thus also offers a view from below of the family as an institution. In Chapter 3 we find that the monetary arrangements dictated by Jewish law functioned quite differently in practice and reflected a different understanding of the dowry and dower. Chapter 4 destabilizes the understanding of the family as a steadfast institution by exploring the diachronic development of women’s ties of dependency with male relatives throughout their lives, from fathers to brothers, husbands, and sons. The importance of these ties for women at the moment of crisis and the way these ties could work for and against women reveal the tensions between the institutional and relational views of the family. That dealing with one’s closest relatives often necessitated turning to legal venues beyond the community, as explored in Chapter 4, suggests an inherent tension in the traditional view of the symbiotic relationship between family and community. This emphasis on the dynamism and complexity of lived law and the family is closely tied to another reevaluation of one of Goitein’s central legacies. Goitein loved his Mediterranean society and wanted his readers to love it as well.28 For him, the paragons of this society were the merchants-­physicians-­ scholars-­poets, men such as Ḥalfon ha-­Levi b. Nethanel, Yehuda ha-­Levi, and Abraham Maimonides.29 Goitein also described this society’s dominant ethos, and medieval Islam’s ethos in general, as a bourgeois one, and saw medieval Islamic civilization as led by its urban and commercial middle class.30 This focus on the middle class was joined with the traditional focus on “the community” and its leadership as the central prism through which medieval Jewish life is studied.31 Miriam Frenkel has offered the most comprehensive and compelling analysis of this social stratum, which she calls the ruling elite, expanding beyond their mercantile activity to include their whole habitus: Torah study, literary interests, charitable work, communal leadership, and social networking. While this elite did not enjoy a separate legal status

Introduction

9

and privileges, it still commanded a clear sense of distinction (being a part of al-­khāṣṣa, Arabic for the elite), separate from the masses (al-­ʿāmma). The result is a view that denaturalizes “the Jewish community” and exposes the mechanisms of power and hegemony of its leadership.32 Paralleling Goiteinʼs espousal of the bourgeois ethos and his focus on communal leadership is his presentation of what he called “Geniza society” as being generally well-­ordered and rational:33 “Theirs was an orderly and harmonious world, complete in itself. Whether we read the sublime concluding chapter of the Guide for the Perplexed of Moses Maimonides or the day-­to-­day correspondence of his humble contemporaries, we feel that the ideals of a world at peace and a perfect man did not appear to them to be out of reach, of course, if God decreed so.”34 Goitein was engaged in creating a synthesis out of a chaotic mass of Geniza fragments. He saw the historian as someone who “digs deeply into the soil of the past and attempts to introduce order into what he had unearthed and explain it.”35 The result was a picture of a Mediterranean society that was predominantly well-­ordered, middle class, and deeply appealing to Goitein and his readers. However, when we move away from the letters of the great long-­distance merchants who captivated Goitein’s imagination and look at the experiences of women from all social strata we encounter what can be called the “other face” of Jewish life in medieval Egypt. Indeed, one of the advantages of looking at Jewish communities in Egypt through the local court is that all segments of Jewish society were involved in one way or another with the court, including children and slaves. The picture of the society that emerges from these pages is one that was predominantly poor, debt-­ridden, and in constant conflict over resources.36 When it comes to married life, rates of divorce, widowhood, and remarriage were high, polygyny not uncommon, and the phenomenon of absent husbands ubiquitous, whether due to business, scholarship, or flight. These realities, while not the focus of this study, constitute the context in which marital disputes unfolded. They translated to a high degree of instability and unpredictability in women’s lives.37 In the pages below, I follow the often convoluted trajectories of marital disputes as they move from one legal venue to another without resolution, while the spouses pay a heavy financial and emotional price. The question of how women experienced this instability and how their actions and agency were occasioned by it lies at the heart of this investigation. Although enabled by the incomparable richness of Geniza documents, this study is also constrained in various ways by them. The Geniza is not an

10

Introduction

archive, which means that we do not possess systematically ordered documentation on the various subjects we might wish to explore.38 Furthermore, despite the repeated use of the language of chance regarding the survival of documents, it is rather clear that waste paper was deposited in the Geniza in a purposeful but not all-­pervasive way and that various groups and individuals deposited different types of documents at different rates.39 Our understanding of medieval Egyptian Jewish society is currently dominated by several dossiers of documents relating to a specific personality, for example, the mercantile letters of the Maghrebi trader Nahray b. Nissim or the legal documents connected with Ḥalfon b. Menasse, the Fustat court clerk active in the years 1100–38. Such dossiers allow us to investigate in depth various questions that are impossible to analyze with discrete fragments, but they can also, through their very prominence, distort the image of Jewish society.40 Thus, it is often not clear whether the picture emerging from the Geniza documents is truly representative of Egyptian Jewish communities, let alone for the other communities of the Mediterranean.41 A further difficulty is caused by the fact that more than 120 years after its “discovery,” the Geniza still contains large swaths of uncharted territory. The majority of Geniza documents remain unpublished and many of them are understudied. There are still no catalogues for many important Geniza collections, and those that do exist are often problematic or unreliable when it comes to historical documents. This means that simply locating the documents relevant to a particular issue is a frustrating and ongoing task.42 Furthermore, most documents are fragmentary, faded, and written in Judeo-­Arabic, a subset of Middle Arabic that often presents substantial obstacles to comprehension. For example, the wife’s petition described above, despite its obvious interest, has not only remained unpublished but has also, as far as I am able to determine, never been mentioned before the dissertation upon which this book is based. As can be seen in Figure 1, parts of it are damaged to the point that they cannot be reconstructed and the meaning of some passages is quite obscure. I have lingered on the difficulties posed by Geniza documents in order to stress the often partial and uncertain state of our knowledge. Some of these limitations can only be acknowledged in the hope that awareness will mitigate some of their effect. Other limitations I have tried to minimize by drawing on a relatively broad documentary base. Rather than working with a specific genre or corpus of documents, I approach each question by “triangulating” the subject through documents of multiple genres. Examining court records, private letters, responsa, and petitions enables us to

Figure 1. The wife’s petition to Samuel b. Ḥananya, Head of the Jews in the years 1140–59. T-­­S 13J13.30. Reproduced by kind permission of the Syndics of Cambridge University Library.

12

Introduction

analyze marital disputes both at home and in legal institutions, yielding a more comprehensive view of married life. Especially important in this regard is our ability to complement Geniza documents with the responsa of Maimonides and his son Abraham, preserved mostly in manuscripts outside the Geniza. Very often important information is found in the margins of otherwise unrelated documents or in bringing together seemingly non-­relevant documents. When possible, I have also made use of relevant non-­Jewish sources, such as Arabic papyri or Muslim responsa, although much work remains to be done in this respect. Though I have certainly missed some relevant documents, the fact that a broad range of material attests to the various arguments made in the following chapters is reassuring. Chapter 1 (“The Legal Arena: A Social Interpretation”) has two goals: to introduce the Jewish legal arena in medieval Egypt and to offer a new social interpretation of it. The chapter begins with the much-­discussed concept of legal pluralism. Most of the work on legal pluralism in the medieval Islamicate world has focused on non-­Muslims using Muslim courts and the reactions of the non-­Muslim communal leadership to forum shopping. I expand this conception to include choices within Jewish communal institutions and ask how pluralism affected the dynamics of dispute and litigation, arguing that the pluralistic and competitive legal arena empowered ordinary Jews vis-­à-­ vis communal legal institutions. With limited means of coercion, the courts’ authority depended on the willingness of Jews to participate in the Jewish legal process, which means that these courts had to be careful not to alienate their clientele. This explains several key features in the work of the courts, such as their reluctance to issue decisive rulings, impose fines for breach of contract, and enforce bans. Despite their limited formal power, Jews turned to Jewish legal institutions as a first port of call because these institutions were embedded in their social networks and they could therefore leverage these networks to their advantage in them. From the perspective of legal institutions, litigants’ ability to use their social connections secured their participation in the process and encouraged their compliance with its outcomes. In this way, the structural weakness of Jewish legal institutions was turned into a source of strength. A comparative postscript zooms out to evaluate the findings of the chapter alongside several recent studies of medieval legal consumption. Of course, not all litigants enjoyed an equal share of social connections. Chapter 2 (“Gender and Status in Geniza Courts”) explores the experiences of women litigating in Jewish courts. Impressed by the great number of Geniza legal records that mention women, earlier scholars concluded that women

Introduction

13

appeared in Jewish courts essentially like men. However, a different picture emerges when we turn to the testimony of petitions and responsa. In these sources, we see the central role of the combination of gender and social status in the resolution of disputes. When women came before the court without male backing, the courts often tended to pressure them more than they pressured men when striving to reach a compromise. Courts tended to admonish women in religious language to do what the divine law commanded them in a way that men were not admonished. The fact that in several cases the actions women were pressured to undertake were not actually required by Jewish law suggests that the courts were engaged in social control rather than straightforward imposition of Jewish law. Having identified these trends in petitions and responsa, I was able to find hints of them also in legal records and in cases involving socially strong women with male backing. While Chapter 2 explores the interaction of gender and status at court, Chapter 3 (“Compromising Women: Gender and Property in Divorce and Married Life”) focuses on the narrower issue of monetary rights while expanding the scope to include what took place both at court and at home. Furthermore, it adopts a broad perspective, looking at both married life and divorce in a way that allows us to connect issues previously studied separately, such as the ransom divorce, compromises during marriage, children’s maintenance, payment of the poll tax for men by women, and more. I argue that the phenomenon of compromising women’s monetary rights constituted a central aspect of the lives of Jewish women in medieval Egypt and then examine the issue within different contexts: poverty, the structural framework of Jewish marriage, and cultural expectations from women. An overly optimistic presentation of medieval women’s lives should not be replaced with an equally problematic lachrymose one. While women did face pressures at court and at home, they also had a broad range of tactics with which to resist them. Although they could, and did, use some of the tactics employed by men in the legal arena, Chapter 4 (“The Ties That Bind: Kinship Support and Communal Participation”) explores the tactics associated specifically with women. It argues that these tactics revolve around two related axes: women’s supportive networks and whether they or their relatives worked through the communal legal institutions or in opposition to them. The chapter begins with women who worked through their relatives in Jewish communal institutions. Supportive relatives were not always readily available, and the chapter then turns to examine how women sought to recruit such support in letters. This reveals both how women could obligate men to

14

Introduction

help them and the dangers and pitfalls involved in such recruitment. Women who did not have supportive relatives turned to Jewish leaders and the Jewish community at large with formal petitions that invoke women’s social isolation. When these tactics failed, Jewish women turned to Muslim legal venues either to obtain their rights or to put pressure on the Jewish courts. This chapter not only provides a deeper understanding of women’s lives but shows the intertwining of familial networks with communal participation and how this affected women. The book’s conclusion reflects on the themes of law, gender, and community, raising some of the questions left unanswered and suggesting possible directions for future inquiry. Finally, a word of caution before delving into the troubled waters of marital disputes in medieval Egypt. Conflicts, as described above, raise fundamental social tensions to the surface—but they also tend to bring out the worst in people. As Ecclesiastes warns us, “In the place of judgement there evil lies, and in the place of justice there evil lies” (3:16). Those who hope to find signs of the love that certainly existed in medieval Jewish married life, the cohesiveness of the medieval Jewish community, or the awe-­inspiring intricacies of Jewish legal dialectics will inevitably be disenchanted by the encounter with Geniza court records and the private letters pertaining to marital strife.43 Similarly, those who seek sex scandals or law-­as-­entertainment on the model of modern media will be disappointed by the reticence and prudishness that characterize the everyday writings of medieval Jews in Egypt.44 Instead, the Geniza documents offer us, after lengthy and arduous labor, fleeting glimpses, as if from a fractured mirror, of quotidian lives with their mixed sorrows, joys, and routines.

Chapter 1

The Legal Arena A Social Interpretation

Two months after Rachel was betrothed in a large public ceremony to Reuven, her relative Simon stepped forward and contested the betrothal.1 Simon brought forth a legal deed testifying that Rachel’s late father had betrothed her to him four years earlier when Rachel was still a minor. Someone from Rachel’s side tried to contest the deed with various arguments. For example, the credibility of the witnesses to Simon’s deed was contested by arguing that not only were they known transgressors, but one of them was married to a Karaite woman and the other was suffering from poor eyesight. However, the Jewish court affirmed Simon’s deed and, to the fury of Rachel’s mother, the judge said that Rachel would need a formal bill of divorce to be free from Simon. Simon, however, had no intention of letting go of Rachel and tried to reconcile her. His words apparently pained Rachel, who exclaimed: “I have no desire for Simon in any way whatsoever!” To the two witnesses who tried to convince her to accept Simon because he was her relative, she retorted: “I have no desire for him. I will not see him, nor will I look at him!” Rachel further demonstrated her resolve by nominating her maternal uncle to receive the desired bill of divorce from Simon. We learn of this dispute from two responsa by the great philosopher-­ legalist Moses Maimonides (d. 1204).2 In his first responsum on the case, Maimonides backed the local judge and ruled that Rachel would need a formal divorce to be released from Simon. Since Simon was clearly unwilling to do so, the matter was apparently returned to the local court, which could require and even compel Simon to divorce Rachel. However, the court was unable or unwilling to make a ruling, so Rachel’s mother decided to escalate the matter

16

Chapter 1

by bringing the case before a Muslim judge. Rather than taking on this Jewish affair, the Muslim judge sent representatives to oversee and ensure that the Jewish court made a ruling. With this new backing and pressure, the Jewish court finally pressured Simon to divorce Rachel. Simon complied, but after a while he claimed that since he had been coerced the divorce was invalid. The matter was brought once again to Maimonides, who ruled that the divorce was valid because the coercion of a Jewish court was not considered coercion. These responsa were preserved because they touch upon numerous legal issues, from the father’s ability to betroth his minor daughter to what constitutes coercion or reliable testimony. However, for the social historian, this case is a rich source for the dynamic of disputes and litigation in medieval Egypt. The first aspect that captures our attention is that the dispute unfolds in several different venues: there is the local Jewish court, there are attempts at reconciliation outside of court, there are appeals to the ruling of a jurisconsult (in this case Maimonides), and there is the Muslim judge. Some of these venues may apply different laws (Jewish law versus Islamic law), while others ostensibly apply the same law (the local Jewish court and Maimonides) but follow a different procedure. Hand in hand with the plurality of venues is the active role of the litigants in bringing the case and pursuing it in different legal forums. Unhappy with the (non-­)action of the local court, Rachel’s side turned to Maimonides.3 Frustrated with the inaction of the same court, her mother turned to the Muslim judge. Simon, for his part, challenged Reuven and Rachel’s betrothal by conjuring up a deed testifying to an earlier betrothal and later challenged the validity of the divorce, claiming that it was coerced. Alongside litigants’ legal moves and arguments we see the role of emotions (for example, Rachel’s pain and her mother’s fury), pressure outside the court, and dramatic speech (“I have no desire for Simon in any way whatsoever!” “I will not see him, nor will I look at him!”). These responsa are but one example out of many that show us how Jewish litigants in medieval Egypt challenged, pressured, and bypassed action in one venue by turning to another. By pursuing disputes within legal institutions and outside of them, they powered a complex and dynamic legal arena.4 This chapter has two main goals. The first is to introduce the Jewish legal arena in medieval Egypt. Surveying the central institutions and common ways of operating in the legal arena will stand the reader in good stead in later chapters when I examine gender in the legal arena.5 The second goal is to offer a social interpretation of this legal arena that connects its structure, the strong bargaining position of litigants, characteristics of litigation, and the

The Legal Arena

17

social embeddedness of legal institutions. I use the term “Jewish legal arena” to capture the plurality of legal institutions in medieval Egypt and the social space constituted through the different ways Jewish litigants experienced such institutions and acted within them. I describe this space as an “arena” to stress its lively, dramatic, and competitive nature. Including the actions of litigants in the legal arena expands our view to incorporate how legal institutions were integrated into the broader social fabric and what people did outside of court with the intention to affect legal action. The Jewish legal arena (henceforth simply “the legal arena”) includes both Jewish and Muslim legal institutions but not Christian legal institutions, about which the Geniza is silent.6 Rather than conceiving of a pure Law muddied as it reaches the shores of practice, the legal arena conveys a reality in which law, legal institutions, the state, the community, family relatives, and individual actors rub shoulders, exert pressures, and collaborate with one another.7 As mentioned briefly in the Introduction, this study of the legal arena is part of a growing interest in premodern Jewish legal practice. While there is a vast literature on Jewish law, the history of Jewish courts and legal practice has received surprisingly little scholarly attention. While it is often stated that the existence of a regular court was the cornerstone of the autonomous medieval Jewish community, we have little direct evidence on these institutions, both how they operated and how Jews engaged with them, in the premodern period. In recent years, scholars like Jay Berkovitz, Edward Fram, Rachel Furst, and Pinchas Roth have begun exploring Jewish legal practice in Christian lands in the Middle Ages and in the early modern period, mostly through communal registers and Jewish responsa.8 The state of scholarship on Jewish legal practice in the medieval Islamic world is more developed; in 1971 S.  D.  Goitein provided what is still the most comprehensive description of Geniza legal practice in a section titled “Communal Jurisdiction” in volume 2, The Community, of his magnum opus, A Mediterranean Society.9 In this section Goitein provided an invaluable synthesis of the judiciary, substantive law, and court procedures. Later work has tended to adopt a legalistic approach that compares practice with the classical works of Jewish law. For example, in The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt, Phillip Ackerman-­Lieberman examines mercantile partnership agreements and concludes that they tended to allocate profit and risk more along the lines prescribed by Jewish law than those prescribed by Islamic law.10 The studies of Mordechai Akiva Friedman and his students examined legal practice in order to recover previously unknown legal traditions that once thrived in

18

Chapter 1

Jewish communities and sort out organic developments from Muslim influences.11 Recently, Eve Krakowski and Marina Rustow proposed a “diplomatic” approach to the study of legal practice that examines the composition of legal records as a way of studying the institutions and the legal culture that produced them.12 While both the legalistic and the diplomatic approaches are useful and productive, in this chapter (and in this book in general) I approach law from a social perspective, making use of the insights and approaches that developed in the past decades under the broad umbrella of Law & Society and the Anthropology of Law.13 My starting point for the exploration of Jewish lived law in medieval Egypt is legal pluralism, defined by John Griffiths as “that state of affairs, in any social field, in which behavior pursuant to more than one legal order occurs.”14 In recent years, legal pluralism has been at the center of much research on the premodern Islamic world.15 In these studies legal pluralism is often conceived rather narrowly as the phenomenon of Jews and Christians using Muslim courts. Uriel Simonsohn and Marina Rustow used it to question the idea of Jewish autonomy and refine our understanding of the Jewish community.16 For Gideon Libson, Mark Cohen, and Jessica Marglin, Jewish use of Muslim courts is a channel of influence from below leading to a convergence between Jewish and Islamic legal practice and tradition.17 Phillip Ackerman-­Lieberman uses it to trace developments in the policy of both the Jewish and Muslim leaderships between the Fatimid and the Ayyubid periods.18 Most of these studies tend to focus on the reactions of the communal leadership to cases of forum shopping. In this study, I use a more expansive understanding of legal pluralism and ask what its consequences on the dynamics of disputes and litigation were. By looking at the choices and actions of litigants, what Daniel Lord Smail called “the consumption of justice,” I shift the focus from the policy of communal leadership to offer a view from below of the legal arena.19 When examining the choices and actions of litigants, very quickly it becomes clear that pluralism is more pervasive than merely the choice between the different denominational courts.20 To begin with, different types of activities took place in Jewish courts; the most common ones were registering agreements in legal documents, adjudication, and mediation. Within the Jewish sphere, besides the local Jewish court it was possible to submit queries to Jewish jurisconsults (i.e., responsa, sheʾelot u-­teshuvot), petition a Jewish leader or the community, or turn to the central court in Fustat. A similar set of options also existed in the Islamic sphere: one could turn to a Muslim judge (Ar. qāḍī, henceforth qadi), submit a query to a Muslim jurisconsult

The Legal Arena

19

(Ar. muftī, henceforth mufti), or turn to state authorities (these Jewish and Islamic venues are introduced in greater detail below). Finally, parties used numerous tactics outside of legal institutions to effect desirable actions inside them or, occasionally, to obviate the need to use them altogether. While this plurality of ways of maneuvering within, between, and in between the various legal venues may not constitute different legal orders as required in Griffiths’s above-­quoted definition of legal pluralism, I follow Galanter’s prescription that “we must examine the courts in the context of their rivals and companions.”21 Indeed, in a landmark study Ido Shahar suggests reframing the opposition between weak and strong legal pluralism away from the question whether the state held ultimate authority over the different legal orders to the question of litigants’ ability to choose the forum in which their case would be processed.22 Once we look at legal practice from the point of view of litigants, the plurality of options within a single institution, between institutions, and outside of them can be approached as legal pluralism. Such legal pluralism translated to a substantial agency on the part of litigants. After providing a brief survey of the main institutions of the legal arena in a section titled “A Road Map to the Legal Arena,” I examine the key role of litigants’ agency in propagating the legal process. “Litigants’ Agency in the Accommodating Legal Arena” explores some of the ways litigants influenced the legal process and the remarkable accommodations shown to them by legal institutions. The next section, “The Social and Cultural Embeddedness of the Legal Arena,” looks at a number of cases to see how the legal process was embedded within the broader social fabric and saturated with cultural values of the medieval Islamicate world such as patronage, intercession, and solidarity. The “Conclusion” brings all the strands together by presenting a new interpretation of the legal arena that connects its structure, characteristic dynamics, and social embeddedness. Combining the perspective of legal institutions that had limited means of coercion in a competitive legal marketplace with the agency of litigants eager to capitalize on their social relations allows me to join the view from above with the view from below to explain some key aspects of the legal arena that have long perplexed scholars. “A Comparative Postscript” zooms out of the Geniza material and embarks on a short tour across Germany, Provence, Crete, and Aphrodito in order to highlight some of the distinct features of the legal arena explored in the chapter. An important caveat must be made before we step into the legal arena. We are still awaiting a systematic study of the Jewish legal institutions in medieval Egypt. Goitein’s aforementioned 1971 treatment of “communal jurisdiction”

20

Chapter 1

is an invaluable general survey, but it does not provide a systematic study of legal records and personnel in different localities. Similarly, Goitein does not explore systematically how legal practice and institutions changed over time during the eleventh to the thirteenth century. This chapter does not attempt to fill this lacuna and instead aims at exploring the relationship between the structure of the legal arena, some of the characteristics of legal practice, and its embeddedness within the broader social fabric. Much remains to be done.

A Road Map to the Legal Arena The central institution in Jewish lived law in medieval Egypt was the local Jewish court (Heb. bet din). Rather than thinking about the court’s activity in general terms as “enacting Jewish law,” it is useful to recognize its myriad activities. The court settled disputes, provided legal services by composing records for voluntary legal acts (sales, gifts, etc.), kept a record of cases, supervised the communal endowments, monitored public morality, and tried to preserve the social fabric of the Jewish community while protecting the socially weak.23 These goals were usually harmonious, but on occasion tensions arose between them. Unlike the qadi who judges alone, the typical Jewish court is constituted by three court members, one of whom is considered the presiding judge (Heb. av bet din, but often only bet din).24 The presiding judge was the head of the local Jewish community, or at least one of its leaders, and was usually appointed from above.25 In the larger urban centers, the presiding judge was a professional judge (Heb. dayyan, ḥaver), while in the smaller communities the judge was usually an appointed local leader (Ar. muqaddam) who was not a full-­fledged dayyan or ḥaver.26 While our information is incomplete, it appears that as long as the Palestinian academy was still active in Jerusalem, its head (Heb. gaon, pl. geonim) made these appointments.27 When the academy declined following the Seljuq conquest of Palestine (1071), this prerogative was taken over by the new Head of the Jews in Egypt.28 The growth and consolidation of the office of the Head of the Jews seems to have also put an end to the occasional setting up of Babylonian and Karaite courts in Fustat, for which we have some information until the 1060s but much less afterward.29 While we do not know the exact process by which court members other than the presiding judge were chosen, it is probable that the presiding judge selected them from among the local Jewish elite.30

The Legal Arena

21

From the perspective of the Jewish leadership, the court was an essential bastion of communal autonomy within Islamic society. From its perspective, the Islamic state recognized the non-­Muslim communal autonomy but considered the dhimmī courts part of its administration of justice. Jewish judges were recognized by their Muslim counterparts and the Geniza even preserved a draft of an appointment deed for a Jewish judge of Alexandria by a Muslim authority.31 The tension between these Jewish and Muslim perceptions holds far-­reaching consequences. As can be seen in their deeds of appointment, the Muslim ruler tasked the dhimmī leadership with the supervision of matters of personal status and religious leniency.32 As is abundantly testified in the Geniza, Jewish courts also dealt with monetary matters, including commercial agreements and disputes. This was not problematic from the Islamic point of view as Islamic law recognized the jurisdiction of dhimmi courts to judge cases in which both sides belonged to the same dhimmī community.33 Theft and serious physical violence, however, were under the jurisdiction of the Muslim authorities and are uncommon in the work of the Jewish courts.34 The autonomous-­yet-­incorporated status of the Jewish courts also influenced the type of power yielded by them. Jewish courts had limited coercive powers. Generally speaking, physical coercion (public humiliation, flogging, and capital punishment) was in the hands of the Muslim authorities.35 As part of the state’s administration of justice, the Jewish judge could theoretically turn to the Muslim authorities to use their monopoly over violence to rein in his flock. However, Jewish communal leaders were reluctant to do so because they knew it would prove detrimental to their legitimacy and claim of autonomy.36 Fines as a form of punishment were also practically unknown.37 While many legal agreements impose a fine for breach of contract, in practice even when contracts were breached the fines were often negotiated down to a minimum (see more on this below). The remaining instruments of direct coercion were excommunication (Heb. nidduy) and the ban (Heb. ḥerem).38 However, these instruments were also used reluctantly and sparingly because if they were imposed too often or used against prominent members of the community, there was a significant chance that they would be ignored. As a result, not only would these instruments lose their effectiveness but the authority of the person who imposed them would be publicly curtailed.39 As elaborated more fully below, the limited means of direct coercion meant that Jewish courts (and Jewish communal leadership in general) preferred various means of soft persuasion and only rarely resorted to bans and excommunications.40

22

Chapter 1

The limited means of coercion are directly tied to another central characteristic of Jewish courts in medieval Egypt: the strong preference for reaching an amicable settlement. Court documents typically present disputes as settled either by an acknowledgment of debt or by release from all claims undertaken by one of the parties, without the court issuing a decisive ruling. While the dynamics of dispute settlement in court are unclear and require further study, we can be fairly certain that courts used a mixture of mediation and adjudication.41 Mediation was often performed by the involvement of so-­called “righteous elders.” These elders played a semi-­formal role in the procedure as they seem to have represented the interests of the local community in preserving the peace and brokering amicable settlements.42 In other cases we see them functioning as founts of local knowledge: deciding the required sum of child support or evaluating the price of real estate.43 Amicable settlements were preferable not only because of the high value given to compromise (Heb. peshara) in Jewish law but also because they preserved the communal fabric by stressing the agreement between its members rather than the rapture presented by a verdict.44 In consideration of their limited means of direct coercion, the courts preferred settlements because they were less likely to be contested by the litigants at a future date. While the local Jewish court was the first port of call for most disputes, a case did not need to reach a conclusion there before one of the parties could turn to one of the other available venues with which they could influence or bypass the original proceedings. The court in Fustat serviced the Jews of the city but also served as a higher court for Jews contesting the process or verdict of other courts in Egypt.45 While it was still active in Jerusalem, the Palestinian yeshiva, and especially its Gaon, served a similar function. This yeshiva was a political body whose authority stemmed from the Palestinian tradition, the sanctity of Jerusalem, and the recognition of the Fatimid Caliph. However, unlike its Babylonian equivalents, it was not an institution of learning and had little by way of scholarly prestige.46 The yeshiva had a court, headed by the person ranked second in its hierarchy; however, since its documents were probably deposited in a Geniza in Jerusalem, we have little evidence of its workings. Yet we hear of some of the cases that reached the yeshiva either from letters of the Gaon that made it to Egypt or from documents written in Egypt that mention appealing to the yeshiva.47 Following the Seljuk conquest of Palestine, the yeshiva left Jerusalem in the 1070s, first to Tyre and later to Damascus, a move that contributed to the rise of the office of the Head of the Jews in Egypt and made the yeshiva largely irrelevant to disputes in Egypt.48

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In addition to the central court in Fustat and the yeshiva in Jerusalem, some litigants submitted queries to jurisconsults to obtain useful responsa. While the traditional understanding of Jewish responsa is that the queries were written by judges who needed either the expertise or the authority of well-­known respondents, in medieval Egypt many queries were presented by litigants and their associates.49 Other litigants, frustrated with the way their cases were handled by the local court, chose to petition a more senior Jewish communal leader or the Jewish community at large.50 Petitioning and querying could be conducted with formal petitions and queries with the expected structure and layout, but we also come across cases in which they were done in letters without these features.51 There were also probably numerous cases in which people petitioned a social superior or queried a legal scholar orally.52 Beyond serving as an alternative or supplement to court procedure, petitions and responsa were also similar in that both were composed by one party to the dispute.53 This imparted both an advantage and a disadvantage. On the advantageous side, petitions and responsa allowed litigants complete control of the narrative presented, while at court the presentation of one’s case was held in check and often challenged by the presence of one’s opponent. In addition, in terms of procedure, submitting a legal query or a petition could be done discreetly without the knowledge of one’s opponent, thereby allowing litigants a measure of control over the timing and the occasion for the reveal of the favorable ruling or the political intervention.54 On the disadvantageous side, because of their one-­sidedness, the response to legal queries and responsa did not have the authority of deliberations in court. Jewish law requires a judge not only to hear both sides of a dispute but also not to hear one side without the presence of the other side.55 Thus, a responsum was always dependent on the facts as presented in the query and was not considered binding upon the local judge.56 For similar reasons, the response to a petition was usually procedural. For example, the Head of the Jews could order a local court to examine (or reexamine) the matter brought up in the petition.57 In cases where petitions protested the treatment that a party received at a local court, the Head of the Jews could turn the case over to the central court in Fustat or demand an explanation from the local court. This means that petitioning could be a good way to start litigation (or restart it in another forum) with an advantage.58 While the immediate results of querying and petitioning were not as authoritative as deliberations in court, the fact that we find litigants exerting themselves and their social networks to obtain

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them suggests they carried substantial advantage either in the courtroom or in the negotiations outside of court. Beyond these Jewish venues, Jews could turn to a variety of Muslim venues.59 The types of Muslim legal venues available to Jews generally parallel the Jewish legal venues. There were Muslim courts headed by qadis that produced deeds written in Arabic script (Jewish legal documents are almost always in Hebrew script).60 Geniza documents usually do not convey an awareness of (or concern with) the affiliation of qadis to the various Islamic legal schools.61 Geniza documents also commonly mention the sulṭān (shilton in Hebrew), which, at least in the Fatimid period, usually did not denote the ruler in person but rather referred to one of a host of state institutions that combined legal and administrative features, like the local governor (amīr, wālī), the supervisor over the marketplace (muḥtasib), the police (shurṭa), and the maẓālim (a state court or venue of justice dedicated to righting wrongs).62 Less commonly, we encounter Jews obtaining Islamic responsa (sing. fatwā, pl. fatāwā) from jurisconsults (sing. muftī).63 Some Jews used Muslim venues in cases where Islamic law was more advantageous to them than Jewish law. Others sought the greater enforceability of Muslim institutions over the limited means of coercion of the Jewish ones. Finally, as explored more fully in Chapter 4, some Jews used (or threatened to use) Muslim venues when they were unhappy with the procedures or the outcomes of their cases in Jewish venues. The Jewish communal leadership saw the use of Muslim legal forums by their flock as a threat both to their authority and to the autonomy and integrity of Jewish communal life. They struggled against it in a variety of ways, from adding clauses to Jewish legal agreements preventing the parties from turning to Muslim courts, imposing the ban over some culprits, to promulgating a general ordinance (Heb. taqanna) forbidding the use of Muslim courts.64 However, the ability of the Jewish communal leadership to halt this use was limited at best. Not only were their means of coercion circumscribed, as described above, but Jewish law recognizes the validity of certain types of deeds produced in gentile courts.65 One can also speculate that their ability to halt this practice was curtailed because they could not afford to appear before the Muslim authorities as actively preventing Jews from using Muslim venues. Yet, in the following pages we will encounter many examples of Jewish courts rejecting actions and documents made in Muslim courts and attempting to punish Jews who turned to them. Thus, there was certainly a cost to turning to Muslim legal venues, but the ability to withstand this cost varied widely according to status, profession, gender, and subject matter.

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Regardless, the fact that a case came before a Muslim judge did not mean that the matter was closed; Jews often brought cases to Muslim courts only to obtain an advantage in Jewish courts. On the Muslim side, there was a diversity of opinions and attitudes among jurists and institutions about how to handle Jewish individuals and institutions.66 The Office of Inheritance (diwān al-­mawārith), for example, was known for its eagerness to seize the estates of non-­Muslims without heirs and was often unscrupulous in its actions.67 At the same time, we find Muslim judges who were reluctant to interfere in internal Jewish matters and turned Jewish litigants who approached them back to Jewish venues.68 The relationship between Jewish and Muslim legal institutions seems to have been inherently “messy,” fluctuating according to the personalities involved, the subject matter, and the interreligious atmosphere at the time. The rich material on Islamic legal practice found in the Geniza still awaits a systematic study.

Litigants’ Agency in the Accommodating Legal Arena Surveying the different legal venues available to Jews does not capture the dynamic nature of litigation in medieval Egypt. Numerous Geniza documents attest to the creative ways litigants found to pursue their disputes within, between, and outside of legal institutions. This section will demonstrate the central role of the agency of litigants to the dynamism of the legal arena and the remarkable accommodation shown by legal institutions to the often disruptive actions of litigants. The dynamic nature of litigation and the primacy of litigants’ agency are tied directly to the inherent “messiness” of the legal arena. While we can speak of distinct Jewish and Muslim legal institutions like courts, petitioning, and responsa, these institutions did not necessarily operate according to a strict protocol and exhibited a substantial degree of personalism. Furthermore, the relationship between the institutions was unstable as they held blurry and overlapping jurisdictions. This has already been argued convincingly by Uriel Simonsohn about Muslim legal institutions, which he described with the felicitous title “Islam’s Juridical Bazaar.”69 This is even more true about Jewish legal institutions whose operations were on a much smaller scale and enjoyed more limited powers of coercion. While there is extensive Islamic prescriptive literature on how petitioning and responsa should be conducted, little of the sort exists on the Jewish side.70 To take responsa as an example,

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one is hard-­pressed to find contemporary discussion regarding what constitutes a query, who may formulate and submit them, at what stage in the legal process they can or should be obtained, who is entitled to write rulings, and most importantly what is the legal status of such rulings.71 When we turn to look at practice we find a very diverse picture. Litigants “shopped” for favorable rulings by submitting their queries to several scholars at a time or asked in one query several different questions.72 We see them going through several drafts for a single query until they find a formulation that promises to elicit the most useful ruling.73 In terms of genre, we find formally structured queries with their Reuvens, Simons, and Leahs and opening along the lines of “what does our Rabbi say regarding” but also queries presented through legal documents and private letters.74 We also find formulas from petitions in responsa and formulas from legal queries in petitions.75 When it comes to the rulings, we find formal ones that follow queries, but we also find responses given in a private letter, in a sort of composition with autobiographical literary elements, or as texts that on their own could just as well be considered short halakhic discussions.76 A similar argument for the lack of a normative framework and diverse practice can be made for petitioning. While certainly there was detailed Jewish prescriptive literature on court procedure, it is still not clear to what extent Jewish courts in Egypt followed a formal protocol. Some Geniza court records go to great pains to portray a systematic and methodological protocol involving collecting testimonies and questioning witnesses.77 In other records, however, all we get is a description like “X and Y came before us. Many words were exchanged between them. It was settled that . . .”78 As Goitein observed, litigants often aired claims in court as sort of trial balloons, in the hope that they would go unchallenged and thus accepted as truths, not unlike the prices declared in a bazaar.79 In a recent study, Jessica Goldberg observed that lawsuits between Jewish merchants follow a “logic of slow assemblage and negotiation, in which the competing narratives of the litigants are presented, but the court adjourns to acquire further legal opinions, to give litigants continual opportunities to agree to settlements, and to pressure litigants to avoid forcing the court to hand down a final judgment.”80 This legal culture of trial balloons on the one hand and the accumulation of legal records, social capital, and public opinion (as will be shown below) on the other hand suggests a loose sense of protocol. It appears that similar to the way the courts used a mixture of mediation and adjudication, they also employed a mixture of strictness and flexibility when it came to court procedure. The multiple goals of the court (settling disputes,

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aligning practice with Jewish law, preserving the social fabric, protecting the socially weak, etc.) required such accommodations. A brief example gives a sense of this mixture of orderly procedure and accommodating flexibility within a single institution. In 1028 Bishr b. Ephraim came to the Jewish court in Fustat to sue Khalaf b. Isaac for ten dinars on behalf of the latter’s wife, Sitt al-­Dār bt. Ḥusayn.81 When Khalaf was asked about these ten dinars he denied that he had received them from her at all. Then, however, two witnesses came forth and testified that they had witnessed Sitt al-­Dār giving Khalaf ten dinars “by way of a loan.” Khalaf then capitulated and admitted that he had indeed received ten dinars (which according to him weighted only nine dinars), but he received them on a condition that when his wife asked him for a divorce, he would give them to her as her delayed marriage settlement. This claim makes little sense, but in any case we see how at first Khalaf denied receiving the money altogether and backtracked only when confronted with witnesses.82 Since he was not penalized for lying to the court, we can understand the usefulness of his initial approach.83 In another case a person vowed that if he was found lying he would pay a certain sum of money. When it was discovered that he had in fact lied, we see how the fine was the subject of repeated negotiations until probably very little of it was paid.84 We get a precious backstage view of such negotiations in the upper-­middle-­ class divorce case of Sitt al-­Kull bt. Berakhot ha-­Levi and Ṣedaqa the singer (ha-­meshōrer) b. Ṣemaḥ.85 On October 1130, Sitt al-­Kull released her husband Ṣedaqa from responsibility for her dowry in exchange for a free disposition in it (Ar. taṣarruf), probably in anticipation of Ṣedaqa marrying another wife.86 This agreement did not save the marriage. On April 1132, Ṣedaqa expelled Sitt al-­Kull and their still suckling son from the house. For several months (at least until July) she did not return to live with him “because he desired to divorce her.”87 In a later court session, Ṣedaqa presented a list of his claims. His father-­in-­law agreed to pay whatever Ṣedaqa would take an oath upon. However, Ṣedaqa retorted: “This I will not accept! Our lord (i.e., Maṣliaḥ Gaon) said that she would take the oath. Go read the list of claims to her.” It appears that Ṣedaqa had direct access to Maṣliaḥ, the contemporary leader of Egyptian Jewry, and discussed the case with him before the court session. The court conceded and sent three men to question Sitt al-­Kull regarding her husband’s claims. She provided answers about each item, and the court then told Ṣedaqa that he would need to take an oath, and only an anonymous ban was incumbent upon her for some of the items. Ṣedaqa declared: “I will accept only what our lord says!” In the incomplete margins of the document we hear that those present

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wanted to set the maintenance due to Sitt al-­Kull for the time she was cast out of the house as at least a dirham a day, but Ṣedaqa claimed that this too was unacceptable. The record of the proceeding was sent to Maṣliaḥ, who scribbled a terse response to the judge on the verso: “Come to us tomorrow or tonight to hear the answer to what you wrote in this document. Bring it with you.”88 In the next court session, we learn that Maṣliaḥ ordered that elders be convened to fix the amount of maintenance due to Sitt al-­Kull and her son. This time around, the elders agreed on no less than a dirham and a half per day for “food, oil, [. . .], bath, rent, and everything else she will need.” The representatives of Maṣliaḥ affirmed the sum. However, when the time came to record the matter in writing, a person whose name is not mentioned in the record intervened on Ṣedaqa’s behalf and effected a substantial reduction in the maintenance to one dinar per month “even though the woman and her son would need to live under constricted living circumstances.”89 As in this period a dinar was worth about 35 dirhams, we can see how the setting of maintenance fluctuated between 30, 45, and 35 dirhams per month.90 We see the interplay of orderly process involving claim and counterclaim, backroom dealings and consultation, outright haggling and the ability of a well-­connected litigant to negotiate with the court both the procedure and the outcome of the case. The ability of litigants to improve their chances was not limited to exploiting the flexible and accommodating procedure in court. We also see them maneuvering between different legal institutions. Occasionally we get a snippet of this through a single line in a letter. For example, in the middle of the twelfth century a Jewish woman was embroiled in some litigation in Alexandria. She wrote a letter to her son in Fustat reporting: “I have delayed the giving of judgment (i.e., in court) until you bring me a responsum (fatwā) from the Rayyis about what should be done.”91 The woman was able to delay the procedure in the Alexandrian court in the hope that her son would obtain a favorable responsum from the Rayyis, probably the Head of the Jews in Fustat. With other cases we are given a more detailed description. In an Arabic script letter written before 1085, Joseph b. Menasse described a marriage scandal in Ashkelon.92 Joseph, who seems to have been a merchant plying the Egypt-­Palestine route, was supposed to marry a girl named Jawzīya. However, he reports that when he arrived in Ashkelon he discovered that a certain Ṣedaqa had betrothed his son to Jawzīya less than eight days before Joseph’s arrival. Joseph was outraged and sought justice. The local Jewish court ruled that Jawzīya must be divorced, but Ṣedaqa’s son would not hear of it. The case

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was brought before the local court two or three more times, with no result as Ṣedaqa (or his son) conditioned giving the divorce on Joseph’s taking an oath that he would not marry Jawzīya, which Joseph refused to do. Ṣedaqa brought the case before two prominent Fatimid Muslim army commanders in Palestine, who ordered that an unprejudiced Jewish court be convened to rule in the matter. Jawzīya reportedly said that if she were to be taken by means of the Muslim government or by force she would throw herself into a well or kill herself. Perhaps trying to counter Ṣedaqa’s appeal to the Muslim governors, Joseph sought to obtain a legal ruling from a prominent Jewish legal authority in Fustat. He wrote the Arabic script letter to Abraham b. Isaac the scholar, a well-­known banker and judge in Fustat, and informed him that a letter describing the case was on its way from Ashkelon with one of Josephʼs maghribī companions.93 Joseph asked Abraham to take the letter and be the first to present it to the legal authority in Fustat. Joseph clearly hoped that a favorable ruling from a high authority in Fustat would improve his legal position in Ashkelon and allow him to finally marry Jawzīya. Joseph’s case began at the Jewish court in Ashkelon and then tumbled its way to Muslim authorities in Palestine and finally to a Jewish legal authority in Fustat. This progression was not the result of an established protocol. From the Jewish perspective, Ashkelon was traditionally under the authority of the academy in Jerusalem.94 While Joseph’s letter is not dated, a draft of a legal record dated to 1085 on the verso supplies a terminus ante quem. This was a time of political reorientation as the Palestinian academy was in decline following its transfer from Jerusalem to Tyre after the Seljuk conquest of Palestine, and in Egypt the Office of the Head of the Jews was on the rise. A few years after Joseph’s letter matters came to a head in an open conflict between the Palestinian Gaonate and David b. Daniel b. ʿAzarya, the Head of the Jews in Egypt.95 Thus, when Joseph sought to obtain a favorable ruling from a legal authority in Fustat through the intercession of Abraham b. Isaac, his actions should not be understood as following a set protocol but as a creative maneuvering between institutions by exploiting new political circumstances. The trajectory of the dispute was set by the choices and actions of Joseph and Ṣedaqa as they tried to outmaneuver one another (more on the reasons behind Joseph’s choices below). Beyond maneuvering between legal institutions, litigants also had a variety of ways to pursue disputes and influence the legal process outside of legal institutions.96 Such means could be used to initiate legal action, pressure

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one’s opponent or the court, or avoid litigation altogether. Due to limitations of space, I will discuss several such tactics only briefly. Including these out-­ of-­court tactics is important for connecting the legal process to its wider social surroundings and exploring the central role of litigants’ agency to the workings of the legal arena. One effective way to avoid losing in court was not to attend in the first place. The court could summon Jews to appear before it, but some simply ignored such summons. An amusing testimony reports that a well-­known businesswoman came to the synagogue and asked those present why the judge proclaimed a public warning against her. Those present explained that this had been done because ʿUlla ha-­Levi had sued her and she was summoned to court but did not appear. Her response was: “What do I owe ʿUlla that he should sue me? All I owe him is five qirāṭs. For five qirāṭs he makes such a fuss.”97 In another case, a representative for orphans who had a claim against an obviously wealthy woman appeared in court when she was present for a different case. The fact that the woman agreed to pay a fine if she refused to come when summoned (“whether night or day”) suggests that she previously tried to stall and avoid coming to court and that her opponent had to seize the opportunity when she came to court for another matter.98 People who had more to lose from litigation could simply flee. This seems to have been an especially common tactic for husbands in marital disputes. In one case, a wife relinquished her ketubba payments and demanded a divorce from her husband according to the ransom (Ar. iftidā’) procedure (see more on this procedure in Chapter 3). The very same day, the husband fled to the countryside so that he would not be forced by the court to divorce her.99 In another case, a well-­known Fustat judge reprimanded a husband who ran away after his wife accused him of taking some of her silver items: “You cannot eat and drink while your family goes hungry. Where are you and where is God?”100 A prescient father set up guards in the city gates and captured his son-­in-­law as he was trying to leave with valuable property after quarreling with his wife.101 Running away could be used to avoid the judicial process altogether, but it could also be used to restart the case in a new, more favorable location. Litigants who felt that the process in the local venue was going against them often left and brought their case to Jewish communal officials in the capital. A local judge reports that when one of the men involved in a case of suspected extramarital sex was summoned to appear before the court, the culprit answered: “‘Tomorrow I will come.ʼ When it was morning we sought him, but

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his wife said he had already left for Fustat where he would beseech the cantor for help.”102 A couple went to court because the wife could not stand living in the delta town of al-­Maḥalla but the husband was unwilling or unable to move to Fustat. When she realized that she was losing the case in the local court, she left without her husband’s permission to Fustat (where she probably had family) and approached a well-­known communal official there.103 The next chapter examines the case of Saʿīda bt. David, who was placed under the ban by the community in the delta town of Ṣahrajt but managed to make her way to the capital to protest the way she had been treated and claim that everything written about her was false.104 Violence, or the threat of it, could also be an effective tactic. Occasionally a physical confrontation led to litigation or took place alongside it.105 At other times, violence was used to pressure someone to perform a desired legal act. Chapter 3 examines many cases in which a husband and his family abused a wife both verbally and physically to pressure her to relinquish the delayed marriage payment she was owed at divorce. We also find men threatened with violence to relinquish a legal claim. A query to Maimonides tells of how a man was threatened by relatives of the woman he recently betrothed. They claimed that the courtyard included in his bride’s dowry was actually theirs. They ordered him to leave the courtyard and added: “If you are wise you would divorce this girl and we will let you leave with the property you brought into the courtyard. If you will not divorce her, we will expel you without anything.” In one version of the responsum they also threatened to kill him and in another they threatened to bring him to Muslim courts.106 Violence was also directed at communal officials and members of the court. The administrator of bread distribution in Alexandria fought with a certain member of the Jewish academy (ḥaver) who distributed the charity bread in disregard of the instructions of the local judge. After a stormy court session and after the communal service on Saturday was disrupted, the administrator reported that “On Sunday night, the 10th of Sivan, a man knocked on (the door) at my house. [I/he stood (?)] at the vestibule, and I did not have a light. He said to me: ‘[. . .] if you distribute the charity chest (Heb. quppa), I will slaughter you in your bed.’” People advised the administrator to take him to court, but fearing the consequences, he decided to wait instructions from the Nagid, Abraham Maimonides.107 Because compromise and mediation played a central role in the judicial process, social pressure and public opinion were important aspects of managing a dispute successfully. We therefore hear of litigants managing public opinion by turning people in the community against their opponents or

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against the court.108 Spreading negative information (Ar. shanāʿa as a noun or ashnaʿa as a verb) was an effective way to hurt an opponent in a society in which one’s status depended to a large degree on his or her networks of social relationships.109 Rumors could bring about a legal investigation by the court.110 They could also be used as social pressure, and indeed we see slandered parties trying to clear their names by interrupting the prayer, refuting the accusations against them, and demanding that their slanderers testify before the court about their accusations.111 In marital disputes, rumors were often used to pressure parties to give up a legal claim. For example, in one case a man agreed to a relatively high amount of child support on the condition that his former wife and her family stop slandering and opposing him.112 The harmful effect of public talk on a person is also reflected in the many Geniza magical fragments meant to silence one’s enemies. In several of these fragments the context seems to be a legal dispute (or a dispute that easily could become a legal dispute).113 The effectiveness of social pressure, spreading rumors, and perhaps even magical practices on legal disputes illustrates the integration of the legal arena into the broader social and communal life. These examples demonstrate the broad arsenal of tactics that allowed litigants to maneuver within, among, and outside of legal institutions. These tactics underscore the central role of litigants’ agency in the dynamism of the legal arena. Litigants found new legal venues when old ones seemed ineffective or unfavorable, or used extralegal tactics with which to influence the procedure. In doing so, litigants were not clueless pawns cast from venue to venue by an impersonal “Law” in a Kafkaesque drama. They employed movements between venues and extralegal tactics to gain an advantage against their opponents. Legal venues were surprisingly flexible and accommodating to these maneuverings. Litigants’ actions were the engines that powered the legal arena.

The Social and Cultural Embeddedness of the Legal Arena If litigants’ choices were central to the working of the legal arena, can we recover what informed these choices? Some considerations have already been mentioned; for example, Islamic law occasionally offered certain advantages over Jewish law and qadi courts and government justice offered greater enforceability

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than Jewish courts. Another consideration, probably the most basic one, was simply the availability of an alternative. When your opponent brought the case to one forum, you countered by bringing the case to another.114 Indeed, in many of the cases examined thus far one can detect such dynamics of reciprocity, often playing Jewish institutions against Muslim ones, or between legal venues and extralegal action.115 While these considerations are quite general, this section will explore an aspect that played a central role in litigants’ choices and was specific to each case: the social ties each litigant held with a given legal institution, which I call the social embeddedness of the legal arena. In many legal systems, justice ought to be blind to the social circumstances of individual litigants. The Bible adjures judges: “You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is God’s” (Deut. 1:17).116 In his code Maimonides explains regarding the injunction against bribery (Deut. 16:19): Not only is a bribe of money forbidden but also a bribe of words. It happened once that a judge was crossing a river on a small fishing boat, when a man stretched forth his hand and helped him get ashore. That man had a lawsuit, but the judge said to him, “I am disqualified from acting as judge to your suit (several other extreme examples are provided). . . . A man is forbidden to act as judge for a friend even though the latter was not his groomsman or is not his most intimate friend. Nor is he to act as judge for one whom he dislikes, although he is not his enemy, seeking his harm.”117 One way in which legal institutions create at least the appearance of impartiality is through practices of alterity. Professional jargon, a set-­apart physical space, specialized attire, and other such practices distance what happens in legal institutions from everyday reality and its network of social obligations. Bourdieu identified this separateness of the juridical field as a crucial element of “the force of law.”118 When it comes to Jewish legal institutions in medieval Egypt such authority was created by several means. The very definition that the presence of three specific men constitutes a court set it apart from everyday reality. The announcement that the court is convened by the authority (Heb. rashut) of the Head of the Jews also raised the process from its local settings by emphasizing the link to the center of Jewish political and religious life. Perhaps most importantly, the performance of the symbolic purchase

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(Heb. qinyan) and the production of legal documents according to rabbinic formulas in a mixture of Judeo-­Arabic, Aramaic, and Hebrew marked the legal process as both legal (and thus different from other everyday occurrences) and belonging to the Jewish tradition.119 While these elements set the legal process apart from everyday interactions, in other respects the Jewish legal arena in medieval Egypt was remarkably integrated into the social life of the community. Court sessions usually took place in the local synagogue, the communal center for religious life and social services. We also hear of legal processes taking place in the home of a member of the court or of one of the elders, which seems to have been used to signify a mode of mediation versus one of adjudication.120 As far as we can tell, court sessions (as opposed to legal documents) were not steeped in Jewish legal language or halakhic discussions. In the rare case when the content of Jewish law is mentioned it is usually brought up by one of the litigants rather than the court.121 As noted above, the legal process occasionally resembled haggling in a bazaar; in one legal record we hear that “there were m[any?] words between them and argument, blaming and attacks, some in earnest and some in jest.”122 The members of the court were not taken from a closed list of professional witnesses as was the case with the Muslim ʿudūl, and many of the male members of the Jewish upper-­middle class served on the bench at one time or another.123 Lawyers, with their jargon and the process of professionalization they instigate, did not exist.124 The result was that Jewish courts were remarkably accessible to almost all adult members of the Jewish community. Being a wealthy educated man certainly provided an advantage, and yet there is no shortage of women and poor men appearing and conducting their affairs in court.125 That some people consciously developed social ties with officials in the legal arena is declared openly in the beginning of the delightful Alexandrian maqāma of al-­Ḥarīrī (1054–1122): Now I should like to impart a piece of advice to the traveller, given me by sages and men of learning. Upon arriving in any town, a prudent man should seek out and befriend the chief representative of the local judiciary, that he may have recourse should any bring suit against him, and that he may have one to protect him in a strange land from the injustice of the powerful. I have taken this counsel to heart and applied it from Ghana to Fergana, and thus became the intimate of many worthy a judge.126

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When the wandering Jewish poet al-­Ḥarizi (1165–1225) embarked on translating al-­Ḥarīrī’s maqāmāt to his Hebrew Maḥberot Iitiʾel the same advice remains: I have heard in my youth from my teachers, and in my days of blossom I was taught by my instructors, that every resourceful gentleman, upon coming to a foreign land, ought to befriend its officials, judges, ministers and rulers. This way they will be there to help him in calamities, lest he be lorded over by ill-­wishers and he would cast his lots with evil doers. I have let this teaching be my guide, my light in the darkness, and whenever I visited a city I would befriend the local judge and arouse his love. Through him I would strive to be protected “from the grasp of the wronger and the lawless.”127 While these are literary works full of tongue-­in-­cheek declarations, we occasionally find their echo in a documentary source. For example, a Jewish man serving as a tax farmer in a certain rural location declares: “By the covenant! I had no resort but to drink with a Muslim judge named Abū ʿAbdallāh and some uncircumcised (i.e., Christian) tax collector. The drinking was for a profitable thing they had proposed, not on account of any idleness of mine.”128 While the writer was schmoozing the local Muslim judge (with booze no less!) for some commercial venture, it is likely that the writer was also hoping to benefit from the judge’s judicial and administrative authority. In a short missive, a son asked his father to meet Manṣūr, the agent of the Muslim judge, and tell him to fulfill quickly a certain pressing need (ḥāja).129 Apparently the son was involved with the Muslim judge in a commercial partnership (Ar. shirka), but it is not far-­fetched to think that he too followed al-­Ḥarīrī’s advice to cultivate a relationship with the Muslim judges in the hope of deriving legal or administrative profit later on.130 It is more difficult to detect the social connections of laymen to legal institutions in legal records, as these present the narrative of legal institutions that understandably sought to hide such contacts. Only on rare occasions do legal documents record litigants using their social ties to influence proceedings, as when Ṣedaqa the singer informed the court that the Head of the Jews told him that the procedure would take place in a certain way, as described above. Occasionally, a document of one legal institution attests to a litigant using social ties to influence another institution. For example, an entry from

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1156 in the notebook of the Jewish court in Fustat dedicates some eighteen lines to forbidding a Jewish mother from contesting an inheritance settlement for her daughters in a variety of Muslim venues. The fact that the similar non-­ contestation clause pertaining to the other party takes up only five lines and does not mention Muslim institutions led Goitein to suggest that the clauses pertaining to the mother had to be especially stringent because as a daughter of a late government official she enjoyed easy access to the Muslim government.131 In another case, a long Jewish responsum from eleventh-­century Qayrawān reports that a father sought the aid of the government in his daughter’s marriage dispute “because he had with it (ties of ) patronage (ʿināya).”132 When the nascent Head of the Jews composed a stern rebuke to a local community and its leader to settle the monetary dispute of a certain woman it is clear that this was done only because the woman’s brother threatened to obtain a state decree to move the case to a Muslim judge. The fact that the brother was a government treasurer (Ar. jahbadh) meant that this threat was credible.133 Archival work can also help identify cases in which social networks may have played a role in proceedings. Chapters 2 and 4 explore two legal records in which the Jewish court seems to take the side of prominent men against their sisters in inheritance disputes. In both cases, it can be shown from other Geniza records that the brothers knew the members of the court, but it is difficult to go beyond circumstantial evidence in such situations.134 It is when we examine private letters that we can not only move from suspicion to evidence but also explore in depth the ways litigants used personal relationships to influence the legal arena. In the case of Joseph’s marriage scandal in Ashkelon examined above, Joseph counted on Abraham b. Isaac obtaining for him a favorable ruling in Fustat for several reasons. First, it seems they were both maghribīs.135 Second, Joseph writes that “our matter obligates you because your family and our family are one.” It is not clear whether Joseph and Abraham were related by blood or marriage or if Joseph simply presented their connection as though they were family (what anthropologists used to call “fictive kinship”). Joseph notes further ties of obligation between Abraham and the case: “The matter of this girl obligates Umm Abū Naṣr, may God protect him, and her father supplicated before you. So act in this matter as your wisdom sees fit.”136 It is clear that Joseph turned to Abraham hoping that all these personal ties would obligate Abraham to help him obtain a favorable ruling.137 We get a fuller sense of how individuals employed personal ties in the legal arena in a letter of Yefet b. Ḥalfon to Elijah b. Zachariah, the main

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Jewish judge in Fustat at the beginning of the thirteenth century.138 After apologizing for not yet fulfilling some personal requests of Elijah, Yefet asked Elijah to show Abraham Maimonides, the current Head of the Jews in Egypt, a query that must have been appended to the letter and obtain an answer in his handwriting. Here is the full translation of Yefet’s letter: The lowliest slave, Yefet b. Ḥalfon, kisses the ground before the seat of his excellency, dignity, wreath, magnificence, our Master and Rabbi Elijah the great judge, the refuge, the fortress, son of our honored master and teacher Zachariah, the head of the congregation. I inform you that I am longing to see your happy countenance and yearning (?) to execute (any) need (ḥāja) the lord has. I am asking forgiveness from the lord, on account of my honor, (regarding) the wool that you commanded me (to buy), for I have visited the market several times on its account, and on the account of the hooded cloaks as well, but I did not find something suiting the lord. However, God willing, I will not neglect the need of the lord until I will obtain it. The slave asks from the favor (inʿām) of the lord that he will show our excellent lord, Abraham the Nagid, this query (fatwa).139 After he will honor it with his lofty writing, favor (tunʿim) your slave by sending it with whoever heads (in my direction). (I ask) this by way of relying on the kindness (tafaḍḍul) of the lord.140 Peace! (p.s.) Whatever need the lord has, entrust it to his slave. (p.p.s.) The lord shall complete his kindness (tafaḍḍul) by sending my utmost regards to our master and teacher Yeḥiel, the great judge. Peace!141 Like Joseph from the previous example, Yefet asked a judge in Fustat to intervene on his behalf and obtain a ruling from a prominent legal authority in the capital. While we do not know the content of Yefet’s query it is likely that, as in Joseph’s case, it was about a legal dispute to which Yefet was a party.142 Geniza documents show that respondents were often tardy and reluctant in answering queries. Having his query presented to Abraham Maimonides by a middleman, in this case none other than the main judge of Fustat, probably increased Yefet’s chances of receiving an answer. Furthermore, it is not unreasonable to suggest that Elijah’s interceding on Yefet’s behalf with Abraham increased the likelihood that the response would be a favorable one.143 In this indirect way, Yefet was able to use his relationship with Elijah the judge to

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obtain an advantage in the legal arena. Significantly, Yefet not only harped on his relationship with Elijah but also made sure that Elijah knew he was on familiar terms with Yeḥiʾel b. Eliyakim, another contemporary judge.144 Joseph’s and Yefet’s employment of social ties in the legal arena through middlemen is found in many other Geniza documents and needs to be understood in the context of the Islamicate cultural ethos of intercession (Ar. shafāʿa).145 In its religious context, the archetypal intercession refers to how on the day of judgment, Muḥammad will lead sinful believers of his community from Hell to Paradise.146 The social-­political forms of intercession have received surprisingly little scholarly attention.147 Intercession was a way of bridging the gap that separated one from his superiors through an intermediary. At the same time, it was also a way of enacting, and therefore proclaiming, this gap. When it comes to responsa, questioners felt that their queries stood a better chance of being answered when presented via a local middleman who enjoyed a personal acquaintance with the respondent. Through the middleman, the questioner brought his social network to bear on the case. From the perspective of the respondents, the use of a middleman allowed them to limit and therefore control access to themselves, especially because the middleman would approach them privately. The use of middlemen thus served to elevate their status but more importantly to distance themselves from the questioners and preserve the appearance of partiality.148 The relationship between Yefet and Elijah is not the kind expected between a layman and a judge (especially if we recall Maimonides’s high, not to say impossible, standards). In his letter, Yefet asks Elijah to show the query to Abraham Maimonides, obtain his response, and send it back to him. At the same time, he mentions a variety of requests Elijah asked him to fulfill concerning silk and hooded cloaks. The way he mentions Elijah’s requests, then his own request to Elijah and back to Elijah’s, suggests that there is a reciprocal relationship between them. These reciprocal requests are referred to as favor (niʿma), kindness (faḍl), and fulfillment of need (ḥāja). These are terms laden with specific cultural meaning, well known from the language of patronage in the Geniza.149 Modeled on the relationship between God and humanity, these terms create social bonds through reciprocity of benefaction and obligation.150 Obtaining a response from Abraham Maimonides was not simply part of the office of the judge in Cairo, it was a benefaction incurring in a relationship of reciprocal favors between Yefet and Elijah. Of course, obtaining a responsum from Abraham Maimonides is not “equal” to obtaining silk and cloaked robes in the marketplace. The favor of the patron

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is often demonstratively greater than the service of the client, but what is important is the maintenance of the relationship and the client’s obligation of loyalty for the future. Yefet’s letter, and many Geniza letters like his, shows how action in the legal arena was often connected to other social obligations and thus embedded within the broad fabric of social relations.151 Yefet’s use of a middleman and the specific terminology he employs show how this social embeddedness was saturated with the cultural ideas and practices of patronage and intercession prevalent in the medieval Islamicate world. Since litigants tended to turn to the center from the periphery and the Geniza tends to preserve the letters sent to Fustat rather than from it, we usually have evidence of the social and cultural embeddedness of the legal arena in litigants’ letters rather than in judges’ letters.152 A rare opportunity to see things from the point of view of a local judge is offered by the letters of an Alexandrian judge, Shela b. Mevasser of the Ben Naḥum family, to Surūr b. Ḥayyim, a prominent merchant of the maghribī Ben Sabra family in Fusṭāṭ.153 Surūr’s daughter was married in Alexandria to a certain Shabbat.154 The marriage ran into trouble and Shabbat wanted to divorce his wife. Shela reconciled the couple and then informed the concerned father of the wife. In the same letter, he requested Surūr’s help with a certain Andalusian refugee. Jewish communities would often provide wandering paupers with just enough means to reach their next destination, thus performing charity while relieving the local community of further burden.155 It has been some days now that Shabbat and the girl (al-­ṣabīya) quarreled, and he was on the verge of divorce. I did not cease to coax him and his brothers gently, may God endow them with life.156 They spared no effort (in this matter). You must, may God protect you, write to them and thank them for what they have done. I settled the matter as is desired. They are in complete blessing; calm your heart in this matter. For I am here for you more than any brother and friend. For your favor (faḍlaka) is upon us and upon anyone who comes to Fustat, may God make you stay this way forever. The bearer of this letter is a cantor from the people of al-­ Andalus, poor and exiled from his land. . . . He asked me to write on his behalf to a man with fear of heaven and diligence. I could not think of anyone as fitting as my lord, the elder, may God protect you. I ask you to act with him as is characteristic of you, as your

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beautiful custom has been with any passerby. . . . Speak to my lord, the excellent ḥaver, on his behalf so he can show solidarity with him for heaven’s sake.157 Whatever need (ḥāja) my lord and elder has, may you honor me by allowing me to fulfill it. May you never deprive me of your letters, for I rejoice in them.158 Whenever this letter has been discussed, scholars have commented either on the marital reconciliation or on the request to assist the poor foreigner bearing the letter. Read together, however, it is clear that these two sections are closely interconnected. Shela presents his involvement in the marital dispute of Surūr’s daughter as evidence that “I am here for you more than any brother and friend.” This concern for Surūr’s interest is only befitting given the latter’s favor to them and to “anyone who comes to Fustat,” a statement that sets the stage for his request in the subsequent section for just such a favor for a foreigner headed to Fustat. Recommending a foreigner for charitable assistance strengthens the bond between Shela and Surūr as partaking in charitable activity was a central social glue for the Egyptian Jewish elite.159 This is also why toward the end of the letter Shela suggests that Surūr ask “the excellent ḥaver” to show solidarity (yataʿaṣṣab—on the significance of this term see below) with the poor foreigner. “The excellent ḥaver” was Eli b. ʿAmram, the head of the Palestinian congregation in Fustat. By mentioning him Shela conveys the extent of his social network, not unlike Yefet’s dropping the name of judge Yeḥiel in his letter to judge Elijah in the previous example.160 Shela’s letter contains the now recognizable vocabulary of “favor” and “need.” Like Yefet’s letter, Shela’s letter concludes with the promise to take care of any need Surūr might have, which reaffirms the tie of social obligation between the two men. If in Yefet’s letter obtaining a responsum figured as a favor to be reciprocated by favors of a commercial nature, in Shela’s letter marital reconciliation figures as a favor to be reciprocated by joint involvement in communal charity. Again, we see how the legal arena was intertwined with other realms of social life. Fortunately, the Geniza preserved another letter of Shela to Surūr that deals with the same case. It seems that Surūr responded to Shela’s first letter and thanked him for saving his daughter’s marriage. Sent from Fustat to Alexandria, Surūr’s letter was probably not deposited in the Geniza of the Ben Ezra Synagogue at Fustat and thus did not survive. Shela then responded to Surūr’s response in a letter that has been preserved in the Geniza:

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Regarding your thanks to me and my uncle161 regarding what I have done for the benefit of your daughter, may God reconcile and preserve her with her husband, it is a duty and obligation upon me for many reasons. The first reason is her loneliness and social isolation. Also, the well-­being of the people of our city is incumbent upon me. Also, out of respect to a lord like my master, the elder, may God guard you, your favor is bestowed over high and low, may God, the exalted, make you always an exemplar of goodness.162 Shela goes on to thank Surūr for filling his place in the court of the Rayyis, “the fourth” in Fustat. He concludes the letter with: “I know that the members of the Ben Naḥum family have no brothers or friends other than the Ben Sabra family, may God not deprive me of their lives.”163 Shela conveniently lays out the different factors involved in brokering a marital settlement, moving from the general to the particular. First, we have the general obligation toward a person in a weak position. The wife was suffering from social isolation (li-­waḥdatihā wa-­inqiṭāʿihā) since her family was in Fustat and she had no male support in Alexandria.164 Next we have Shela’s obligation to the well-­being of his local community.165 As a communal leader, he was charged with restoring peace between the members of the city, and especially between husband and wife. Then we have the duty stemming from the prominent position of Surūr, whose “favor (faḍl) is bestowed over high and low.” Finally, Shela mentions a specific personal favor he received from Surūr and concludes the letter with an acknowledgment of the special bond between their two families. It is rare to have such a straightforward account of a judge explaining in a private letter why he acted as he did. This Alexandrian judge was dealing with the marital problems of a woman whose father was not merely a prominent merchant but an occasional member of court in the capital.166 The judge’s letter shows how the concern for the socially weak, the obligation to restore domestic peace, social status, and personal ties of obligation intertwined in the judge’s calculations. We also see that Shela not only averted an ugly divorce but did not fail to use his success to obtain credit in his ongoing personal relationship with Surūr. The resolution of marital conflicts was integrated with matters of charity and the calculus of reciprocal favors. The social and cultural embeddedness of the legal arena was not limited to Jewish institutions; social networks played an important role in informing the choices and actions of Jews in Muslim legal institutions as well. We see this in a letter written by a Jewish communal leader from Alexandria during

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the reign of Saladin. The writer reports how he contemplated the best way to punish a Jew from his flock. According to his testimony, because he did not know the Muslim governor (wālī) or his delegate (nāʾib), he wrote down a petition but did not know whether to send it to the Muslim judge or to the governor. Then it occurred to him to send it to the supervisor of the markets (al-­muḥtasib) whose punishment would probably be light. However, he reports that the supervisor of the markets passed the matter to the governor, who ruled that the man should be flogged and publicly denounced around the Jewish neighborhood.167 While the writer of the last letter laments not having the social connections to secure a beneficial outcome from Muslim legal institutions, other Geniza documents show that some Jews did enjoy such connections. However, it is also clear that the extent of such ties was more limited than those enjoyed by Jews in Jewish institutions. The social relations that we do find usually have to do with the state administration, where many Jews were employed as officials. We have seen three examples of Jews trying to better their situation in Jewish institutions through ties to Jews employed in the Muslim government.168 Our last example shows how a Jew could try to use such a relationship to improve his standing in a Muslim legal institution. Ṣedaqa b. Khalaf, a Jew living in Tyre, claimed his brother had been tricked by another Jew, Abū Manṣūr al-­Baghdādī, to give him the enormous sum of seven hundred dinars. After the death of his brother, Ṣedaqa sued Abū Manṣūr for the sum. In a Jewish court, Abū Manṣūr acknowledged a debt of four hundred dinars, while in a Muslim court he acknowledged only a hundred dinars. In either case, Ṣedaqa did not get a penny and for several months pretended to be Abū Manṣūr’s friend in the hope he would either acknowledge the full sum or receive back some of the debt. Then, on a Thursday in the beginning of Ramḍān, the body of Abū Manṣūr was discovered swept up behind a rock next to a deserted ruin. His hands were tied with a hemp rope and his clothes were weighted down with rocks. Rumors immediately flared up that Abū Manṣūr had tried to flee the city with robbers who then killed him, while others claimed he had committed suicide. Ṣedaqa tried to get back at least some of the money that he was owed, probably from assets left behind by Abū Manṣūr. However, the Muslim judge refused to accept the acknowledgment of the larger debt made in a Jewish court and apparently sat on the fence regarding the Muslim deed of acknowledgment about the smaller sum. We hear this complicated story from a Judeo-­Arabic letter Ṣedaqa wrote to Abraham b. Nathan “the seventh,” a well-­known Jewish notable in Fustat

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who was an official in the Fatimid administration.169 Ṣedaqa asks Abraham to intercede on his behalf and obtain for him an official decree from the Fatimid vizier al-­Afḍal (in office in the years 1094–1121) ordering the Muslim judge in Tyre to accept the acknowledgment made in the Jewish court about the larger sum. Like Yefet and Joseph in the previous examples, who used middle­men to obtain a favorable ruling from a Jewish authority, Ṣedaqa used a middleman (Abraham) to obtain a favorable decree from the vizier and thus improve his standing in the qadi court in Tyre. It is especially interesting to see how Ṣedaqa tries to convince Abraham to intercede on his behalf. Ṣedaqa makes a passing reference for a monetary compensation awaiting Abraham but emphasizes more the strong obligation on Abraham to assist Ṣedaqa: For fate has not preserved you for us except for times such as this [therefore do not] disappoint our hope. For all people would seek refuge if they had a friend like you or one acting like you. You are to us like the hand to the body, like the spirit to matter. Your solidarity (ʿaṣabiyyatuhu) is well known and everybody furnishes evidence about your (help), not that we need any evidence for this. Do (this) as a favor (munʿiman), if God wills it.170 We see the language of patronage in the use of “favor” and in the proclamation of the client that the benefaction of the patron is well-­known. Especially important is the way Ṣedaqa appeals to Abraham’s sense of solidarity (ʿaṣabiyya) to obligate him to intercede on Ṣedaqa’s behalf. Like patronage and intercession, ʿaṣabiyya is a concept with deep cultural resonance in the medieval Islamicate world. It was made famous by Ibn Khaldūn, who used it in the fourteenth century to denote the tribal cohesion among the Arabs before the coming of Islam. Geniza documents show that ʿaṣabiyya and related terms were used to refer to the obligation of men in a social relationship to support one another.171 We have seen how Shela, the Alexandrian judge, suggested that Surūr talk to the head of the Palestinian congregation in Fustat so that he would show solidarity with the Andalusi foreigner. In a petition discussed in greater detail in Chapter 4, a woman declares, “You show solidarity (tataʿaṣṣabū) with men and those with power (qudra), I would like you to show solidarity (by giving) me something with which I will go to the family I have in Syria.”172 Ṣedaqa extols Abraham’s solidarity to pressure him to help his legal case in Tyre from Cairo. By using fellow Jews employed in the government administration, Jews could utilize their social ties to influence

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even Muslim legal institutions. The legal arena in medieval Egypt, including both Jewish and Muslim legal institutions, was embedded in the fabric of social relations and steeped in cultural values such as patronage, intercession, and solidarity.

Conclusion How can we explain the reluctance of Jewish courts to issue decisive rulings, impose fines for contract breach, or declare the ban? How is this reluctance connected to the primacy of litigants’ agency and the social embeddedness of the legal arena? I believe that there is a thread that ties together the structure of the legal arena and the characteristics of litigation described in this chapter. Legal institutions derive their authority from the law they claim to enact, the political powers that back them, the recognition of other legal institutions, and, last but not least, the willingness of people to turn to them.173 Jewish courts, the central institutions in Jewish legal life in medieval Egypt, certainly derived authority from being perceived as enacting Jewish law, if not necessarily in content then certainly in recognizably Jewish script and legal formulas.174 They also derived authority from being appointed by the Palestinian academy or the Head of the Jews and being recognized by the Islamic state. However, the appointment by Jewish authorities gave them only limited means of direct coercion and they were reluctant to employ the stronger means that could have been supplied to them by the state. Similarly, the authority they derived from recognition by their legal peers was limited, because they were at least partially in competition with the same institutions. Finally, and perhaps most importantly, the willingness of Jews to use Jewish courts could not be taken for granted considering these courts’ limited means of coercion and the availability of alternatives, whether other Jewish and Muslim institutions or non-­legal options like flight, violence, and so forth. All this meant that the authority of Jewish courts in medieval Egypt was limited and precarious. From the perspective of litigants, the competitive nature of the legal arena and the limited and precarious authority of Jewish courts placed them in a remarkable bargaining position vis-­à-­vis their communal legal institutions.175 Since courts’ authority depended on the willingness of Jews to participate in the Jewish legal process despite having other options, these courts had to be careful not to alienate their clientele. This, I think, explains the reluctance to issue decisive rulings, impose fines for breach of contract, and

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implement the ban.176 Careful to keep litigants as negotiating members of the community, courts avoided whenever possible the rupture to the social fabric that a decisive ruling, the ban, or a fine could entail.177 Courts preferred mediation to adjudication, negotiation to excommunication, and were willing to forgo fines in the interest of peace. Desperate to keep Jews in communal institutions, courts had to accommodate litigants’ maneuverings, which led to the flexibility, accommodation, and dynamism of the legal arena explored in this chapter. This relative weakness of institutions and strength of litigants explains the primacy of litigants’ agency in the workings of the legal arena. However, accommodation due to fear of alienating clientele is not a good marketing strategy and we must think about why Jews would turn to communal institutions knowing of their limited power. After all, courts bent on mediation can be incredibly frustrating to litigants who feel they have been wronged.178 In other words, in order to remain attractive in a competitive legal arena, Jewish courts had to offer something more than accommodation and adherence to Jewish law. This is where the social embeddedness of the legal arena comes in. Jews turned to Jewish legal institutions as a first port of call because they were familiar institutions. They were embedded within Jews’ social networks, and Jews were acquainted with their personnel. Knowing that they could try to leverage their social ties to their advantage encouraged Jews to turn to Jewish institutions. Jews knew that the courts would try to reach a compromise, which meant that they would probably not win everything they wanted but also that they would not lose everything. In any case, they knew they could always try to open the case in another Jewish venue or turn to a Muslim venue. The formal weakness of communal institutions made using them less risky, while being embedded in the social fabric gave them an edge in the competitive legal arena.179 Social embeddedness, however, was not only a way to attract consumers in a competitive market from a position of weakness; it was also a source of strength. While it is difficult to show directly, we can speculate that once a person used a social contact to obtain an advantage in a certain institution, he would be beholden to the process and its outcomes, at least to some degree, through that social connection. For example, let’s suppose that in the example explored above, Elijah the judge returned to Yefet an unfavorable response of Abraham Maimonides. If Yefet ignored the ruling he risked damaging his relationship with Elijah. Thus, social connections were leveraged by litigants to improve their chances but were also leveraged by institutions for compliance. As stated repeatedly above, Jewish courts were deeply engaged

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in mediation through respectable members of the community. An effective approach in mediation is to adopt a broader perspective that looks beyond the quarreling parties. To take marital disputes as an example, courts could try to convince husbands not to divorce their wives by going beyond the strained spousal relationship and involving the wife’s family and the husband’s family, and even raising the issue of what the divorce would do to the husband’s standing in the community. We saw how Shela b. Mevasser, the Alexandrian judge, used Shabbat’s brothers to dissuade Shabbat from divorcing his wife. In the next two chapters we’ll explore many cases in which relatives of the couple in conflict are involved in the legal process. The social embeddedness of the legal arena benefited litigants as well as the courts as they tried to reach mediated settlements through litigants’ relatives and social relations.180 As mentioned above, in a classic study Bourdieu argued that the force of the juridical field lies in its distinction and its insistence on separation from social reality.181 The Jewish legal arena in medieval Egypt offers a different model in which the power of legal institutions derived at least partially from integration with the social fabric. This integration brought with it litigants’ attempts to influence the process with their social connections, but these attempts also secured their engagement in communal institutions and encouraged their compliance with its outcomes. The structural weakness of Jewish legal institutions was turned into a source of social strength.182 Rather than seeing the use of social relations in the legal arena as corruption, it is more helpful to see it as a form of justice that is personally tailored rather than blind.183 The result was a dynamic, flexible, and lively legal arena whose main engine was the choices and actions of litigants. This meant that litigants were in a relatively strong bargaining position vis-­à-­vis communal institutions, but it also meant that litigation was often unpredictable and prolonged. One could win one’s day in court only to discover that the victory was only the starting point of another lengthy round of negotiations.

A Comparative Postscript Having put forward a social interpretation of the legal arena, it is useful to ask whether the model presented here is unique to Jews in medieval Egypt or simply what communal (as opposed to state) justice looked like in other premodern settings. After all, it is possible that the socially embedded legal practice we have uncovered is simply the result of the unrivaled documentation

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offered by the Geniza and that if we had a Geniza for medieval Ashkenaz or for Muslims in medieval Egypt, we would encounter a similar picture.184 Indeed, several features of the legal arena explored in this chapter, such as the limited coercive power of legal institutions, the reluctance to make decisive rulings, and the preference for compromise, can be encountered in various degrees in numerous other legal systems in the past and the present. At the same time, one does not need to read The Story of Burnt Njal, an Icelandic saga famous for its complex litigation and intricate legal culture, to know that premodern legal cultures can be profoundly different from one another. Luckily, as mentioned at the beginning of this chapter, recent years have seen the publication of several studies that look at related premodern legal cultures while taking account of the perspective of litigants as legal consumers. A short comparative tour using such studies helps to highlight the essential features of the Jewish Egyptian case and shows that they are certainly distinct.185 It is important to recognize that the question of whether there is an essential difference between legal cultures or simply a difference in source survival overlooks the fact that the production, employment, and archiving of documents is often itself indicative of profound difference. Rachel Furst has recently presented an important overview of Jewish courts in medieval Germany arguing that, in the great majority of cases, these were courts of arbitration headed by laymen and assembled ad hoc whose procedures were predominantly oral.186 Such courts occasionally produced deeds for individuals but generally did not produce institutional documentation (like court notebooks) or keep regular archives.187 Furst notes that documents were produced usually only when either the court or one of the parties needed to consult with an outside authority. This picture contrasts sharply with the immense document production of Egyptian Jewish courts. While most of the documents produced by Egyptian courts have been lost, what the Geniza preserved still numbers in the many thousands. This includes not simply deeds and court notebooks but also a whole range of court paraphernalia: drafts, formularies, reed trials of legal phrases, court notes, and extensive reuse of legal documents. The staggering documentary production of a community that was not that large (the Jewish population of Fustat is estimated to have been around 3,000–7,000 in total) bespeaks regular and robust legal institutions and a legal culture that had a central place for the written word.188 The difference in documentation is related to further differences between the Jewish courts of medieval Egypt and Germany. While Egyptian courts were part of a super-­communal structure in which local judges were appointed

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(or at least recognized) by a central institution (both Jewish and Muslim, as we have seen), the German courts were typically local ad hoc arrangements not part of a larger structure. This implied not only a substantial difference in the sources of authority of the courts but also a greater degree of variance between Jewish courts in different regions of Germany (which Furst convincingly ties to the political fragmentation of medieval Germany).189 Mirroring the essential adversarial nature of Germanic law and reflecting their own temporary nature, Jewish courts in Germany dealt mostly with litigation and were dependent on individuals bringing cases to them. In Egypt, on the other hand, there were regularly held courts and the communal leadership was tasked by the Muslim state to uphold public morality and administer the communal institutions. We thus find Egyptian courts not only concerned with litigation but regularly dealing with communal pious foundations, notarizing transactions, and monitoring the public morality. What gave a degree of connectivity to Jewish legal culture in Germany was responsa (which also form the primary source for historians). The institution of responsa “was a critical component of the way justice worked in medieval Ashkenaz.”190 The weakness of local legal institutions and the great prestige of some Talmud scholars led to the formation of a loose but effective network of correspondence that covered remarkable distances. Questions were composed mostly by rabbis and learned judges and respondents tried to avoid responding to litigants. Anyone who has ever read Jewish responsa from medieval Ashkenaz knows that they are steeped in Talmudic learning, which was a central aspect of the legal culture. In medieval Egypt, by contrast, Jews certainly used responsa in the legal arena, as we have seen, but responsa did not form a “critical component” of the legal culture, probably due to the existing super-­communal structure. Questions about legal disputes tended to be composed by litigants and their collaborators and were addressed to local scholars. Such questions are often full of interesting detail but usually do not contain halakhic discussion and even the answers are often terse and without the halakhic showmanship evident in Ashkenazi responsa, even when they are composed by a giant like Maimonides. The focal point of legal activity in Egypt was the Jewish courts rather than the interaction between rabbis and Talmudic scholars. Responsa also played a predominant role in late medieval Provence. Jewish courts in Provence were largely set up ad hoc and derived their authority from being accepted by the two parties. Judges were usually laymen, but in

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the larger cities the court could also include leading scholars. In Pinchas Roth’s masterful study In This Land: Jewish Life and Legal Culture in Late Medieval Provence one encounters a legal culture focused around a sophisticated halakhic dialogue carried out by responsa in which “often the questioner was almost as well versed in rabbinic texts as the scholar to whom he addressed his question.”191 Provence was different from Germany in its mixture of French and Iberian Jewish traditions, as well as in the advent of Roman Law in the twelfth and thirteenth centuries. While previously Jewish courts routinely handled cases of personal status as well as monetary disputes, the growth of Roman Law, with its accompanying lawyers and instrumental approach to law, led to an increased Jewish use of state courts. Jewish courts had to accommodate these changes in order to stay relevant in a competitive legal arena, a response that elicited differing responses from Jewish scholars, as Roth demonstrates.192 While there are some obvious structural similarities between the Jewish courts in Provence and those in Egypt, it is clear that the Jewish legal culture in Provence was profoundly different in the centrality of responsa and the prestige of its scholarship. If the Jewish courts in Egypt appear robust and industrious, the Jewish legal culture of Provence appears almost boutique in its scale and sophistication. The use of non-­Jewish courts by medieval Jews was pervasive, whether under Islam or in Christendom. Rena Lauer closely studied a particularly extensive case of this phenomenon among the “highly litigious” Jews of Venetian Crete (1348–1453). During the colonial rule of Venice over Crete, the Jews were seen as a loyal community that could serve as a buffer against the more hostile Greek Orthodox majority.193 After an oppressive Byzantine rule that severely restricted Jewish legal autonomy, Cretan Jews welcomed Venetian rule and flocked to use its secular courts. While Jewish courts (probably ad hoc and consisting of laymen) existed, we know very little about them and Lauer describes them as impotent and unimportant.194 With little by way of Talmudic scholarship and prestige, responsa seemed to have not played the role of unifying communities and compensating for the weakness of local courts, as it did in Germany and Provence. Crete thus reminds us that there is nothing natural or given in the existence or role of Jewish courts and, despite its relative proximity to Egypt, provides a strong contrast to the latter’s central and potent Jewish courts. If we leave behind the Jewish examples, return to the “correct” shore of the Mediterranean, go back several centuries, and sail up the gift of the Gods,

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we reach Aphrodito, a late antique village in middle Egypt whose documentary and poetic riches in Greek and Coptic papyri offer a valuable comparison to the Geniza. Giovanni R. Ruffini has recently presented an appealing overview and analysis of Aphrodito in his Life in an Egyptian Village in Late Antiquity. Here the problem of the lack of comparable documentary sources can be set aside, yet we still have the lingering difference of scholarly taste. The pages that precede and follow lack Ruffini’s mythic opposites of law versus violence, control versus chaos, and social ties versus class struggle; nor do they wax eloquently on the humdrum of everyday life. And yet, much is similar between medieval Jewish Fustat and the late antique Egyptian village in Ruffini’s presentation of Aphrodito as not awash in violent crime and his choice of “the individual and the individual’s ties to others” as the basic unit of analysis.195 As I have been arguing about medieval Egyptian Jews, Ruffini argues that in the Aphrodito papyri “legal action never separates from social action” and “the formal and the informal, the legal and the social intimately intertwine.”196 One feels that in these respects, the Jews of the Geniza would be instinctively familiar with the social networks of Coptic Aphrodito. The emphasis on the social relationship, however, ends up highlighting some fundamental differences between the Jews of medieval Egypt and late antique Aphrodito. According to Ruffini, “most people, most of the time, do not need the law”; law was a last resort, and written documentation was exceptional in Aphrodito.197 This is certainly not the case for our medieval Jews for whom law was a familiar presence in their lives through abundant legal documents. Egyptian Jews were by no means as litigious as their Cretan counterparts, but either through contract or litigation, they patronized robust legal institutions. A second notable difference pertains to class. For Ruffini, social ties and the people one encounters on a day-­to-­day basis are more significant than abstract class division and supposed class struggle: “When I look at Aphrodito, I do not see a world organized by class and driven by class struggle. I see instead a world of personal relationships, a world in which state superstructure matters far less than who appears at your door each morning, and who you see in the street each afternoon. Yes, rank and status matter. Titles and privileges matter. But social ties matter more.”198 Medieval Egyptian Jews would probably agree that individual negotiations, done through managing social ties and shaping reality through words, are often more important than the letter of the law or a governmental edict. The law was the point of departure rather than termination and subject to constant negotiation and manipulation.

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However, they would not comprehend the strict dichotomy between class and social ties. For to them, as stated in the Introduction, class was not primarily about rank, titles, and privileges but about what education you commanded, what social networks you belonged to, and what social ties of significance you brought to bear. Class struggle did not tear Jewish communities apart, but there was certainly immense importance attached to being part of the elite (Ar. al-­khāṣṣa) rather than the rest (Ar. al-­ʿāmma), and class tensions certainly can be detected in Geniza letters.199 The urban nature of the medieval Jewish community as opposed to the rural nature of late antique Aphrodito probably goes a long way to explain this different conception of class. The third major difference has to do with the presence and nature of the state. It is not surprising that in a village in middle Egypt the imperial state in Constantinople appears more remote and weak than it does for the Jews of medieval Fustat, a mere hour or two walk from the imperial Fatimid palace in Cairo. Ruffini himself points to the change brought about by the more centralized, and in his view oppressive, Arab rule.200 State intervention certainly grew and deepened once Egypt became the center of its own empire with the Fatimid takeover. More important than the augmented presence of the state is the different way it was experienced. Some well-­connected medieval Egyptian Jews who had a Jewish friend working in the state bureaucracy would certainly echo Ruffini’s claim that “the state is not an abstract structure. For these men and women, the state has a face and a name. The state is a friend, or more likely a friend of a friend.”201 Others, less well-­connected, would talk about the sulṭān (i.e., government authorities) as an abstract threatening presence. Access to either state or communal institutions depended on social ties (i.e., class, as we have seen), and there were many who did not have such connections. This short tour across Europe and the Mediterranean and up the Nile not only shows the profound diversity of premodern legal cultures but serves to highlight some of the distinctive features of the Jewish legal arena of medieval Egypt. The robust communal courts with extensive document production that Egyptian Jews patronized seem to have been the exception rather than the rule.202 These courts were at the heart of the legal arena, rather than Jewish responsa or the use of non-­Jewish courts. These courts were, on the one hand, recognized and almost incorporated within the state’s administration of justice and, on the other hand, symbolized the autonomy enjoyed by the community. As this chapter has argued, this combination of cooperation and competitiveness led to the courts’ precarious position, which explains the prominence of social ties for the workings of justice and the familiarity of the law.

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As we saw in the comparison with Aphrodito, not all litigants had equal shares of social connections. Gender, class, age, and legal status all played a central role in the workings of the socially embedded legal arena. Recognizing the strong bargaining position of litigants and the accommodating nature of the legal arena when it came to men helps us see the contrast as we move to examine how women experienced and fared in the legal arena in the next two chapters.

Chapter 2

Gender and Status in Geniza Courts

On 9 April 1085, the Jewish court in Fustat received an anonymous tip that the former wife of a certain Ṣāliḥ had been entering his house. Later that day, Ṣāliḥ himself appeared before the court and complained that his former wife had been entering his house, attacking him, and saying “I will not leave, nor go out of this house for it is my house and my dwelling.” The court summoned his former wife and forbade her from entering her former husbandʼs house. However, she had no intention of yielding and told the court: “I do not accept this. You took a bribe to divorce me (from him). The house is my house and I will not leave it.” If this declaration were not bold enough, she also threatened to appeal directly to Muslim authorities (al-­sulṭān). The members of the court tried to speak to her, but according to the court record, she responded with threats and curses. All the while, the court record tells us, Ṣāliḥ continued to complain about her and asked the court to “relieve me of the burden of her entering into my house.” At this point the record ends with the signature of four witnesses.1 How are we to understand the drama of Ṣāliḥ, his former wife, and the court? Was Ṣāliḥ’s former wife the vulgar and insolent woman the record depicts, or were her accusations true and she was wrongly deprived of her property by the court who was in cahoots with her husband? Is her confrontational attitude toward the court a strategy employed to deal with a patriarchal system stacked against her, or is it a stereotypical depiction of an unruly woman cast upon her by the court scribe? Looking at a single case through the testimony of only one source, it is often impossible to answer such questions. This chapter explores the experiences of women undergoing marital disputes in Jewish courts. Impressed by the great number of Geniza legal records in which women appear, Goitein concluded that women appeared in Jewish

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courts essentially like men. Scholars who followed him have gone even further and depicted courts as assisting women in their legal endeavors. However, a different picture emerges when we turn to the testimony of petitions and responsa. In these sources, we see that in marital disputes when women came before the court without male backing, the courts often pressured them more than they pressured men when striving to reach a compromise. Courts tended to admonish women in religious language to perform their “duty” in a way in which we do not find men admonished. The fact that in several cases the actions women were pressured to undertake were not actually required by Jewish law suggests that the courts were engaged in social control rather than straightforward imposition of Jewish law. Having identified these trends in petitions and responsa, it is possible to find hints of them also in legal records and in cases involving socially strong women with male backing. While this process of “triangulating” women’s experiences in courts from sources in different genres cannot give us definitive answers to the questions we raised about Ṣāliḥ’s former wife, it provides context with which we can attempt to understand specific cases.

Women and Courts Feminists, sociologists, and criminologists have explored the experiences of women in the modern legal system. Women tend to commit different types of crimes than men, often receive different punishments than men for the same crimes, and in the process are subject to a whole range of gendered stereotypes.2 Women’s experiences of the justice system are unlike men’s from the initial arrest through the investigation, the decision to prosecute, the appearance in court, sentencing, and punishment.3 It has been shown that women often speak in court differently than men, that they are not addressed by court officials in the same way as men, and that their testimonies are often evaluated differently than those of men.4 Findings from studies of contemporary societies cannot be projected onto medieval societies. However, the research on modern realities, which does not suffer from the medievalists’ scarcity of sources, can serve as useful inspiration for the types of questions medievalists can pose to their sources. More specifically, modern research alerts us that behind the supposedly objective judicial records, legal practice is often gendered in complex ways. While much of the scholarship concerning modern women is quantitative

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and focused on criminal law and issues that are entirely alien to the realities of women in the Geniza, it draws attention to issues that scholars of medieval Judaism have only begun to consider.5 Women appear in some of the earliest legal records published from the Geniza.6 Yet it was Goitein who provided in 1976 the most substantial discussion of “women in court” in a subsection of the chapter titled “The World of Women” in volume 3 of A Mediterranean Society, The Family.7 Goitein’s depiction of women in court needs to be understood in light of what was then a startling discovery—that there is an abundance of legal documents that attest to Jewish women appearing in and actively using Jewish courts.8 This discovery allowed Goitein to offer a corrective to a widespread view, still popular today, that sees medieval women only as powerless and oppressed. Goitein describes women in Jewish courts as active and strong.9 Even when women are accompanied by their husbands, “the men play a secondary role; the women act, the husbands only confirm the transaction after its conclusion.” Indeed, commenting on the notion that women ought to be protected, Goitein writes that “there was no need to be considerate, for women were neither weak, nor inexperienced, nor overly shy or snobbish.” He argues that the many cases in which a husband approves the actions of his wife do not reflect a subordinate position but are simply a legal requirement resulting from the nature of the property relations between the spouses.10 Similarly, the fact that women nominated representatives to appear in their stead in court should not be taken to imply a disadvantage, since “men did the same.”11 His conclusion is that “women were as active in court as men. Sometimes one gets the impression they were even a bit overzealous in keeping the court occupied.”12 Goitein’s conclusions have been repeated regularly by later scholars.13 Indeed, over time, scholarly evaluations of women’s experience of the court have become even more glowing: “It was easy [for women] to obtain a divorce. . . . The courts assisted women to divorce their husbands. The sages in that period did not stand in their way but strove to help them.”14 Some scholars have even used Jewish women’s frequent appearance in Jewish courts as an attestation to the supposed higher status of women in Jewish society than in contemporary Muslim society.15 Goitein’s positive assessment of women’s experiences in court can be challenged by examining the way he described the local Jewish court in the section on “communal jurisdiction” in The Community: “The members of the Jewish courts were, as a rule, personally known to the parties either from the synagogue or otherwise, and, in any case were regarded by them as people of

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their own kind. Finally, since the Jewish court was composed of three or more members, litigants themselves frequently had experience of the bench, which naturally made them more inclined to entrust their cause to an authority and a procedure with which they were familiar.”16 This description fits well with the argument made in the previous chapter that part of the attractiveness of the Jewish court had to do with its being familiar and embedded within the network of social relationships. However, purporting to be a general description of the court, this quote in fact adopts unreflectively the point of view of a middle-­class Jewish man of good standing in the community.17 It fails to acknowledge that the court may have been experienced quite differently by women and other non-­middle-­class men. Women probably came to the court only for cases that involved them personally or one of their close relatives. All the regular functionaries in court were men and women did not, of course, have experience of the bench. Women’s pool of male acquaintances was much more limited than that of men.18 Thus, whereas women did indeed appear frequently in courts, it is doubtful, as the cases described below will further demonstrate, that Geniza women saw the members of the court as “people of their own kind.” The advantage derived from men’s experience of the bench is mentioned explicitly in a hitherto overlooked Geniza document. While the exact details of the case are obscure because the document is incomplete, it is clear we are dealing with another case of a husband who tormented his wife in order that she would ransom herself free from the marriage by relinquishing her monetary rights.19 The document, apparently a letter written by a legal official clearly antagonistic toward the husband, claims that the latter knew this stratagem because he “sat in judgments,” which probably means the husband was an occasional member of the court: “This man shows off as if he has knowledge because he sat in judgments. He is beating (her) because he thinks he would divorce her through a stratagem without payment an equivalent of a penny, neither delayed marriage payment, nor maintenance[. . . .] He learnt nothing from the company of the sages and judges and others except the stratagems of the laws.”20 As noted in the previous chapter, even in places where the presiding judge was a professional, he would usually nominate the other two members of the court from local notables. These court members were often not versed in the intricacies of Jewish Law but presumably had, or quickly obtained, a basic familiarity with legal practice. The passage claims that rather than benefiting from the company of the sages, an important value in Rabbinic Judaism, the husband gained only superficial knowledge.

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Obtaining neither piety nor real knowledge of the law, he learned only legal stratagems (Ar. ḥīla for sing. and ḥiyal for pl.; both are used in the passage) with which to divorce his wife at minimal cost. In a complex legal query submitted to Maimonides we hear of the opposite claim: two orphan girls without a guardian did not know their full monetary rights (which they now claim) “because they have not yet appeared in public, nor were present in court sessions, and do not know the details of the law.”21 In these two cases we see the relationship between gender, attendance in court sessions, and the benefit of practical legal knowledge. Women’s experience of the court was gendered in several aspects that are not the focus of the present chapter and will only be mentioned briefly. First, there was a cultural norm that “it is not the way of a woman (to go to court) because ‘a king’s daughter’s honor is indoors.ʼ”22 This is at least partially the reason why we often find in Geniza records women nominating a representative to appear before the court in their stead. When the case involved a woman of high social class or one considered particularly modest, the court would send representatives to collect her testimony at her home.23 Furthermore, a woman’s testimony is, generally speaking, not valid in Jewish law.24 It follows that women may not serve as judges.25 When it comes to legal records, the most apparent difference between men and women is that whereas a man was introduced by his name and his father’s name, often accompanied by blessings and various honorifics, a woman typically appears with her name alone and can only bask in the honorifics and blessings attached to her father’s name.26 Another important difference is that men were introduced by their names, while for women there was often a special identification clause that the proceedings took place after her identity was established. The addition of this clause reflects a general assumption that men were publicly known while women were not.27 These gendered aspects of court procedure must have contributed to making the whole process less familiar to women and the court personnel seem less like “people of their own kind,” though it is difficult to assess their exact influence. Another roadblock in gaining access to women’s experiences in court is that legal documents are meant to attest to a certain legal act but often do not supply the all-­important context for the act. So we have plenty of legal records in which, for example, a woman sells a piece of real estate, but without context it is difficult to decide what to make of it. Women appear frequently in court records because that is how some acts (especially wealth transfers) are performed. But frequent appearance and legal capacity do not

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necessarily translate to power and agency. Take, for example, a 1126 document from Fustat in which a woman, whose name has not been preserved, decreased the delayed marriage gift her husband, Sar Shalom, committed to pay her from seventy down to twenty dinars. She also forwent the trustworthiness clause which he bestowed on her upon the marriage.28 While later in the chapter and in the book I excise most of the honorifics and blessings from legal documents, here I leave them in full: His h(onor, our) m(aster) and t(eacher), Sar Shalom, may the Rock [preserve him] b. his h(onor, our) m(aster) and t(eacher) Yeshuʿa m(ay he rest in) E(den), asked us, the witnesses undersigned [in this document,] to enter his house, in the presence of his wife, [Si]tt al-­[. . .] bt. his h(onor), g(reatness and) h(oliness our) m(aster) and t(eacher) Abraham, the beloved of the Yeshiva, m(ay he rest in) E(den). Her brother was present and identified her.29 Then, she told us: “Make the symbolic purchase from me and bear witness for me, as of now, canceling any notifications and conditions, according to my will, while not being coerced, that I have released, that is released,30 my husband, the aforementioned Sar Shalom b. (our) m(aster) and t(eacher) Yeshuʿa, from fifty dinars of good and high quality of the seventy dinars he prescribed as a debt owed by him for my delayed marriage gift written in the ketubba. I do not leave for myself anything except only twenty dinars. I also have relinquished [in addition to that] the trustworthiness that he had bestowed on me in my ketubba. I have released him from all this and have released him a complete release orally and in (my) heart, in this world and in the next.” We, the witnesses, have made the symbolic purchase from her, a complete and rigorous purchase with an instrument fitting for purchase on everything written and explicated above.31 The legal record presents Abraham’s daughter as legally active and places her reported speech at center stage. However, it does not disclose why she relinquished her monetary rights and forwent being considered trustworthy. True to his conception of women as strong and active, Goitein notes that “very special circumstances” must have caused her to do so considering that her father, Abraham, the beloved of the Yeshiva, had ties to the highest echelons of the Jewish community as well as to the Islamic government.32 Goitein suggests that “apparently, she had plundered her husband’s house”

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during the marriage.33 But another reconstruction is equally possible. When her prominent father was alive, Sar Shalom had to commit to a ketubba favorable to the bride. Now, with the father-­in-­law dead, he may have had second thoughts and aggressively pressured his wife to relinquish her monetary rights, without any “plundering” on her part.34 Indeed, it is impossible to tell whether this agreement represents a resolution of a marital dispute, a divorce settlement, or a freely volunteered acknowledgment. The legal record merely presents the agreement and leaves the historian in the dark. As Marie A. Kelleher claims, “the legal record is as much an act of forgetting as it is one of remembering.”35 Jewish women appeared in communal courts frequently to conduct their legal affairs, and it is understandable that this fact has been highlighted by scholars in order to dismantle preconceived ideas about the status of women in traditional Jewish or Muslim societies. However, this emphasis should not obscure the fact that the court was essentially a male space that followed a law developed, interpreted, and adjudicated by men.36 Acknowledging this fact does not mean assuming a “battle of the sexes” in which men are ipso facto antagonistic toward women. However, it is important to recognize that an institution that may have appeared to contemporary men and to modern scholars as neutral may have been experienced in a profoundly different way by women.

Womenʼs Experiences of the Court from Other Genres Legal records present women’s experiences of the courts from the perspective of the courts. As we have seen, they often omit much of the background information and focus on the legal acts performed in court. We certainly should not expect to find in court records explicit admission of a courtʼs bias or mismanagement.37 Therefore, to counterbalance the perspective of the courts it is instructive to consider sources other than court records such as petitions, private letters, and responsa. More than in the often dry and formulaic court records, these alternative sources convey the centrality of gender and social status to the workings of the courts. Of course, these sources are hardly innocent or transparent accounts of reality. Women were often presented (or presented themselves) in them as vulnerable to enlist the reader’s sympathy. In this respect, such narratives are evidence not only of the gendered nature of the legal arena but also of how women acted within this gendered setting

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(a theme developed further in Chapter 4). The insights gained from studying letters, petitions, and legal queries allow us, later in the chapter, to detect aspects in legal records that are similar to those in the other documents. This suggests that we are not dealing merely with narrative strategies. By using perspectives from different genres we can try to triangulate practice.38 A poor orphaned woman without male kin submitted an extremely direct and informal petition to an unnamed Gaon (i.e., head of a Jewish academy). Ten years earlier, she had been married off to a man who did not provide for her but took her earnings. Impoverished and disgraced, she told her husband that she would no longer give him her earnings, and she would get by without him.39 She reports that “He began giving me a bad name.40 So I went to the judges and ransomed myself with everything (due to me from him) to save my honor. But they did not grant me a divorce.”41 The ransom procedure, which is discussed in more detail in the next chapter, is one whereby a wife relinquishes her delayed marriage gift and in return the court is supposed to force her husband to grant her a divorce. However, in this case, the woman relinquished her monetary rights but for some reason the judges were uncooperative and did not force her husband to divorce her.42 The story of another wife who sought divorce and met with a refusal is told in a fragmentary query submitted to “the distinguished Rabbi.”43 A young girl in a group of ransomed female captives was taken in by a woman, as an act of charity, and was raised together with her own children. Some four or five years later, when the girl came of age, one of the boys married her with the approval of the local judge. After the marriage, however, She did not stay with her husband longer than four [months (?) . . . and re]turned to the house of the woman, in which she had been brought up. [. . .] and said: “I shall not stay with this man a single hour.” [The elders and the jud]ge urged her all the time to reconsider the matter, but she said: [. . .]. They exercised on her all kinds of pressure and talked to her in different [ways, but she said: “I shall not stay with this] man even if he pours gold over my head.” [. . .] Then the woman’s children drove her out of the house.44 The court refused to assist the young wife, who had no family of her own to back her, in her bid for divorce. Moreover, the judge and the elders exercised on her “all kinds of pressure and talked to her in different [ways]” to get her

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to conform to the wishes of her husband and his family. Such pressures, whereby men in official or semi-­official position attempt to persuade women to yield to societal pressure, will be encountered throughout this chapter. We get a closer look at such pressures in a letter written by Yeshuʿa b. Joseph ha-­Kohen, a judge active in Alexandria in the years 1025–63. Yeshuʿa wrote to Nahray b. Nissim, a prominent merchant and scholar based in Fustat. Yeshuʿa asked Nahray to consult “the Rav,” that is, R. Judah b. Joseph ha-­ Kohen, the highest rabbinic authority in Fustat at the time, about a difficult case of levirate marriage (Heb. yibbum).45 After the death of a childless husband, the widow refused to marry one of his married brothers but agreed to marry one of his single brothers: “The court sent five [elders]. . . . They went and returned to court with this answer: ‘We went to this yevama (deceased brother’s widow) and identified her through proper women.46 We intimidated her and told her: “By heaven and by the Torah, God cast (this duty) upon you. You cannot withdraw from him (i.e., from the married brother) and it is your duty to be taken in levirate marriage by him even against your will. Do not decline, do not refuse him and do not listen to those who tempt you and make you err.”ʼ”47 The elders presented the marriage to the brother of her late husband as a religious duty from which she could not abstain, even if she had no desire for him. However, the widow resisted these pressures, asserting that “‘Even were you to cut my flesh to pieces, I would not be persuaded to your talk, nor listen to your words so that you insert me as a second wife. He has single brothers and if they (are willing) to take me in levirate marriage, they shall do so, and if they (are willing) to release me, they shall do so. Do not force me, lest you cause me to fall into evil ways and my sin will be on your neck.’”48 The widow’s sophisticated response does several things: it rejects the elders’ pressures through a resounding declaration, offers an alternative (marrying one of the levir’s single brothers), and makes an explicit threat (her falling to evil ways). After the elders returned to the court with the widow’s refusal, the court turned to address the levir (“What do you say? For she said that she is not pleased to be a second wife”). The levir insisted that he would not release the widow nor would he be compelled by law, and demonstrated his resolve by taking an oath on the matter. Faced with an impasse, a higher religious authority was consulted, and it seems as though both his ruling and the opinion of the writer of the letter was that “Not all yevamot are released and not all yevamot are taken in levirate marriage. The court may rule according to specific circumstances and litigants.”49 We see how the woman was first

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intimidated and told repeatedly that she must conform to what was presented as divine duty.50 Only after she withstood this blitz did the court turn to the levir—who was addressed with much less force and intimidation. Later a higher authority was consulted, who insinuated that the pressures and religious intimidations inflicted upon the yevama had been inappropriate.51 The fact that, even according to contemporary legal authority, the proper course of action in this case was not clear-­cut reveals the extent to which pressuring the woman represented the default position of the court. This default position is found in many other Geniza documents.52 In sources from outside the Geniza we hear of similar pressures, applied by courts on women to get them to relinquish their claims or consent to menʼs demands. Maimonides was asked whether a husband may give his wife the items of her dowry and demand that she release him from his responsibility to them. Apparently, the local judge had earlier told the wife: “True, the divine law requires you to take your items and release him,” upon which the wife had consented and released her husband. In his answer, Maimonides wrote that the wife was not required to consent, and if her consent had resulted from the judge’s words, then her actions were void.53 In another case, Maimonides was asked about an Alexandrian man who refused to support his four-­year-­old daughter so long as she was in his former wifeʼs custody. The judge had ruled—mistakenly—in the husbandʼs favor and “due to the speech of the judge the woman was frightened and made the symbolic purchase to sustain and support her daughter.”54 Another example is found in a responsum of R. Sherira Gaon (Iraq, in office 968–1004). On his deathbed, a father divided his estate among his children after giving his wife a quarter of a house for her delayed marriage gift and dowry and releasing her from any vow or ban. After his death, the eldest son disputed the arrangement. Several people are described as “dragging” the widow, probably to court, and placing her under a ban, telling her that she must compromise with them.55 Due to the ban, the widow yielded and gave the eldest son three hundred dirhams, after which the ban was lifted. Sherira Gaon ruled that the widow had been wronged and the money should be returned to her.56 These ­examples all show the tendency of the courts to pressure women, even when such pressure was not required by the law. Furthermore, it is important to recognize that these examples involve cases in which a woman was strong enough to resist the pressures and obtain justice, or at least a hearing, through a different venue. Therefore, these examples reflect only the visible tip of a far more widespread reality.57

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These examples contrast vividly with the cases explored in the previous chapter in which courts went to great pains to accommodate litigants’ demands and actions so as not to alienate their clientele. Indeed, when we look at how courts addressed men, we find that instead of pressures and high-­ handed talk about religious duty, Geniza documents often portray the court as addressing men in a gentle manner.58 In the Alexandrian judge’s letter reporting how he reconciled a husband who wanted to divorce his wife discussed in the previous chapter, he wrote that “I did not cease to persuade him gently (mā ziltu alṭuf bihi).”59 The verb is derived from luṭf, the benevolence with which God guides humanity toward good. The same verb is used in a complex divorce case from Qayrawān in which trustworthy elders approach the groom gently (laṭufa bihi) while trying to reach a solution.60 When a husband refused to pay his wife’s debt to a Muslim, the court and elders pressured him “in soft and beneficial speech” (Heb. bi-­dvarim rakim ve-­ṭovim) until he consented to pay a part of the debt so that his wife would not be dragged to a Muslim court.61 When asked about a Jew who bought a Christian slave, converted her to Judaism, and had sex with her, Maimonides ruled that he should either expel her from his house or be convinced “softly and gently” to marry her.62 In the only case I am aware of in which a woman was approached “gently,” this was done only after she was accused of presenting the court with forged documents, reproached for turning to Muslim courts, and described as deceptive and stubborn.63 Of course, there are several Geniza documents in which we witness men being reprimanded by the court and communal authorities in strong language.64 However, whereas in the examples above strong language was used to urge women to take certain actions on the grounds of “religious duty,” when it comes to men they are usually admonished for serious infractions they have already committed. Furthermore, I am not aware of a male parallel of the phenomenon explored above in which women were admonished to take actions not actually required by Jewish law. Indeed, even when men were clearly at odds with the law or with communal authorities, we still find cases in which leniency and accommodation toward these men is advocated.65 In a long and faded letter, a certain Yehosef, who appears to have been a traveling judge, reports that as instructed by the Nagid he reprimanded and placed the ban over a Jew in the delta town of Minyat Zifta who was tardy in paying his debts. However, in the same breath he reports how members of the community constantly appealed to him to be lenient toward the debtor. Indeed, Yehosef asks the Nagid and the leaders of the academy to grant the debtor a

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month or two, lest his family perish.66 A similar consideration for the social status of a man appears in a query to Abraham Maimonides. Without going into all the details of the case, a Jew named Abū Ṭāhir requested to receive some of the money left after the death of a freedwoman his father manumitted. Abū Ṭāhir threatened to turn to Muslim authorities in the matter. While Jewish law (as opposed to Islamic law) does not grant the manumitter and his heirs any rights in the inheritance of a freed slave and despite the credible threats of Abū Ṭāhir, the query describes Abū Ṭāhir in very sympathetic terms: “(Abū Ṭāhir), despite his poverty and his need, is beloved by the people, most intelligent, very sociable, with great manliness, bashful among all the people and his good qualities are greatly renowned. He will find relief even in a dirham of (the money). . . . He is able (to act) regarding what he says (i.e., appealing to Muslim courts). He will do so and people will forgive him.”67 Such sympathy contrasts with the way women were approached in the examples above. Some women were aware of the different way the Jewish authorities dealt with women and men, as is made plain in a woman’s petition to communal leaders: “You show solidarity with men and with those with power (wa-­antum tataʿaṣṣabū maʿa al-­rijāl wa-­maʿa man lahu qudra), I would like you to show solidarity with me (by providing me) something with which I will go to the family I have in Syria.”68 These examples not only reflect a difference between how men and women were addressed by communal authorities but also highlight the importance of social status (“beloved by the people,” “those who have means”).69 The consideration for social status in the work of legal institutions closely aligns with the social interpretation of the legal arena discussed in the previous chapter. The flip side of the argument that litigants used their social capital in the embedded legal arena is that the court was not a welcoming space for women who did not have male relatives to support their case in the legal arena. The cases of orphans, captive women, widows, and divorcees examined above reflect this reality.70 Indeed, in the previous chapter we encountered several examples that suggest that when a woman had a supportive (usually male) relatives her prospects in the legal arena improved dramatically; this exploration is developed further in Chapter 4.71 The way the court applied its pressure in some cases and not in others reveals the centrality of the combination of gender and status to the way the court operated. Our last example in this section is a vivid account of a woman’s travails with a local judge that combines many of the issues discussed above while

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turning our attention to consider how this case would appear in a legal record. In a long and quite repetitive letter, Jalīla bt. Ibrahim from Alexandria describes to Mevorakh b. Saadya, the Head of the Jews in Fustat, how she and her children were cheated out of her husband’s inheritance through the complicity of the Jewish judge of Alexandria, Shela b. Mevasser.72 After her husband died on one of his regular flax-­buying trips, a group of Jews and Muslims came forth and declared themselves his creditors. In collusion with Shela, they deceived her by bringing her before the Muslim judge and telling her what to say while promising that she and her children would receive her late husband’s estate. When she obeyed, they took her minor son to collect the estate from the tax farm in which her husband died, and once they had obtained it, they gave her son a pittance and kept the rest for themselves. When she complained to the Jewish judge in Alexandria, he answered: “The wish of this woman will not be granted. We will sell and divide the money and give to each one what he claims.” Disappointed with the Jewish judge, Jalīla brought her case to the Muslim judge, who agreed with her that the estate should go to the orphans, and anyone else who asserted he had a rightful claim to the estate should prove it in court. According to Jalīla, the creditors then bribed the members of the Jewish court and told her: “Take these seven dinars so that you would not remain without anything and tell the Muslim judge not to make us take an oath.” Lacking a better option, Jalīla consented and released them formally in the Jewish court from the oath and from any debt owed to her. Instead of a ketubba of sixty dinars and the inheritance for the orphans, she and her children received a total sum of seven dinars.73 Jalīla’s letter illustrates the role of the combination of gender and status in women’s experiences in court. From the size of Jalīla’s ketubba and other details in the letter, it is clear that she used to belong to the middle class. However, once she was widowed, she found herself in a weak position vis-­à-­ vis the communal authorities and her husband’s business partners. Her son was still a minor and the letter mentions neither a brother nor a father. Thus, Jalīla was like the other women of weak social status encountered in this chapter who were failed by the communal legal system in their most vul­nerable moment. Furthermore, in her petition Jalīla explicitly attributes her tribulations to her gender when she writes: “I was tricked because I am a woman” (recto 39, Ar. fa-­ʿumila ʿalayya ḥīla li-­ʾannī mara).74 Beyond this direct indictment, we can sense the role of gender in the condescending manner in which

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the Jewish judge dismissed Jalīla, saying: “(The judge) and his son, Nuḥaym, said: we do not care for the wishes of this woman,75 we will sell and divide the money and give to each one what he claims” (recto 29–30), “What is your opinion? Shall we take the property of people and give it to you?!” (right margins), and “You do not have anything and we will do as we please, we know what we are doing” (recto 47). According to Jalīlaʼs account, the Jewish judge shouted at her and stated that he considered the Muslim creditor trustworthy (apparently without requiring him to take an oath in a Muslim court, as Jalīla had requested) while dismissing her claims out of hand (recto 25–28). The Jewish judge also had no qualms about reporting to the Muslim judge that Jalīla had relinquished her claim willingly and that she herself asked that the Muslim creditor be paid first (verso 3–4).76 Jalīla’s letter also testifies to the pressures, couched as suggestions, exerted upon the widow to relinquish her rights and the rights of her orphans: “Take these seven dinars so that you would not remain without anything and tell the Muslim judge not to make us take an oath” (verso 11–12). Even in the very late stages of the conflict, the Jewish judge still placed the burden of compromise fully on the woman: “You, your ketubba is sixty dinars. (If ) you will take them, what shall we pay the Muslim, the Jews and the partner?” (recto 48). Jalīla surrendered to these pressures, and in order to receive at least seven dinars from the sixty she was due, she went before the court and “made the symbolic purchase that I received the seven dinars, that I do not require them to make an oath and that I am satisfied with what they said” (lines 68–69, ar. raḍītu bi-­qawlihim). Significantly, she uses the expression commonly found in legal records in which women relinquish their monetary claims.77 This statement ensures that the legal act has been made with consent and serves to protect the agreement and the parties from future contestation. Jalīla’s letter claims that she was pressured and tricked into making this statement and that she was far from satisfied with the compromise. This “smoking gun” has serious repercussions for our understanding of the numerous other documents in which women submit to a compromise and are recorded as declaring their satisfaction with it. How many more scenarios like Jalīlaʼs lurk behind the numerous dry deeds of release? The evidence from petitions, responsa, and communal letters raises serious doubt about the depiction of the courts as a welcoming and helpful space for women. Instead, it highlights the centrality of gender and social status to the way courts operated. Furthermore, these documents cast a long shadow over the contents of the court records in so far as we have witnessed that behind innocent-­looking

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confirmations and releases there may lie a complicated web of pressures and manipulations.

Women in Court Records The insights gained from petitions, responsa, and communal letters help us when we turn to examine court records. Reading Geniza court records with a literary sensitivity to the language they employ, the narrative they present, and whose viewpoint they adopt confirms the conclusion of the previous section about the pressures imposed on women to compromise in the legal arena.78 In moving from letters to legal records we are assisted by a fascinating eleventh-­century document that contains both. One side of the document is a letter in Hebrew from the communal head of Ṣahrajt, a small Delta town, reporting how the local community handled a particularly difficult case of marital strife. A man married the sister of his deceased wife, but the marriage was not a success. According to the letter, the wife appealed to a Muslim court to divorce her from her husband: She took him to a Muslim judge and divorced him according to her will against his will.79 (The Muslim judge) awarded her maintenance for three months through a command of the gentile (court). . . . When (the couple) fought, she took the deeds of the apartment and lied saying “I did not see them!” . . . We brought her forth and addressed her as the law requires. We spoke to her thus: “Let go of all that is past. It is between you and your Creator. Go back to your husband as you were of yore in love and fondness [. . . and we] made the symbolic purchase from him that he will follow a good and straight path with you.” She refused to listen and misled the congregation with unbecoming speech. Afterward, we sent her several messengers, but she did not listen to them but rather remained maliciously insolent. We had to act with her in a reprimanding manner because she said bad things about her husband and because she went with her ketubba to a Muslim court and divorced her husband through them and because of her refusal to accept the laws of Israel and her being rebellious. (Therefore,) we cast her out as she deserves, banned her, ostracized her and exposed

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her shame in public as is proper with the daughter of evil who does not turn back to goodness except through punishment.80 In this letter we encounter much that is familiar to us from the examples in the previous section. The local authorities pressured a woman to give up her claim using religious admonition, apparently with little or no pressure exerted on the husband. When the woman refused, she was described in extremely negative terms and placed under the ban. Remarkably, on the other side of the document, a legal record from Fustat dated to 1032 offers us an alternative narrative. The wife (we now learn that her name was Saʿīda bt. David) was discontent with the handling of her case in her hometown and traveled to the capital seeking justice. The legal record reveals how two official accounts of the same case could differ from one another: Saʿīda bt. David, mentioned in this document, appeared before the court in Fustat appointed by the high court (of the Palestinian yeshiva) protesting and claiming that everything said about her on the other side of this document has no truth. It was her husband who took her to a Muslim court, and it is she who was wronged in what was done to her. Isaac b. Samuel was present and was asked about what he knows about what transpired between this woman and her husband. He said: “What I know from a group of the people of Ṣahrajt is that their going to a Muslim court was by their joint agreement.” Then he returned and said “The man and the woman admitted to me that they went to a Muslim court by joint agreement.” The wife mentioned she has another witness who will testify to what will clear her from (the accusations found) in the other side of the letter. The court withheld the proceedings until (the matter) would be thoroughly investigated. . . . (written in a new hand:) Joseph the cantor b. David also came forth and mentioned that this woman was healthy from illness with her husband [text difficult to read] and her husband wanted to divorce her.81 A completely different story emerges, contradicting the narrative provided in the letter of the local communal leader. The gulf between the accounts is not simply a case of “he said, she said” in which the two sides offer contrary accounts to the same authority.82 The two accounts need to be understood in

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terms of their divergent goals. The letter from Ṣahrajt is not meant to be an account of an objective legal process deciding between two equal sides, each one offering their claims and counterclaims along with supporting documentation. Instead, it is a report (and perhaps even a justification) to the center of how the case was handled locally. The communal leader who composed the letter has already determined the culpable party and wanted to persuade the center in Fustat of the woman’s culpability (and thus their proper handling of the case). With this goal in mind, she is presented in the worst possible terms while the actions of the local leadership are presented as reasonable and conciliatory.83 It is not clear what the relations were between the local leadership in Ṣahrajt and the center in Fustat, but it is clear that the Fustat court was not beholden to the narrative offered in the Ṣahrajt letter. In Fustat, Saʿīda may have enjoyed “the power of the first word,” and in any case she was physically there while her opponent was represented merely through a written testimony.84 In this way, her appearance fits into the cultural model of the petitioning woman coming to the center to protest injustice done to her by lower-­ranking officials.85 By enabling her to present such a narrative, the court in Fustat portrays itself as a beacon of fairness, offering redress to the oppressed. The Rashomon of Saʿīda and her unnamed husband directs our attention to the question of whose narrative the court is adopting. With the testimony of the Fustat legal record, it is easier to see that when the letter from Ṣahrajt reports that “we cast her out as she deserves, banned her, ostracized her and exposed her shame in public as is proper with the daughter of evil who does not turn back to goodness except through punishment,” this tells us just as much about the local communal leadership as anything Saʿīda might have done. Usually, of course, we do not have a second testimony. However, now that we have been made aware of the fictionality of even official records, it is possible to look at legal records and find in them telltale signs for the narrative of which side the court is adopting.86 A fascinating legal document dated to 998 attests, as if in real time, to the shifting identification of the court and its consequences for a wife undergoing marital strife.87 Salma bt. Nathan seems to have originally hailed from Fustat but lived with her husband, Ibrāhīm (=Abraham) b. Sallām, and his family in Madīnat al-­Fayyūm. Ibrāhīm wanted to divorce Salma, and it seems she made it easier for him when she tore up her ketubba.88 An ad hoc court consisting of local notables was convened to deal with the case. They sent a legal query about the matter to the capital and though a response was received, we are not told what the ruling was. Instead, the legal document

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attests that “She came before us and said: ʻI have sinned, make peace between us.ʼ She wept, she and her son, before the community (lit. Bene Yisraʾel).” This dramatic performance (which included bringing her son to weep before the community)89 seems to have aroused the sympathy of the community as “Everyone exhorted her husband Abraham, telling him: ʻWhy do you not take her back?ʼ” Thus, with “the power of the first word,” her request for reconciliation and a dramatic plea, Salma managed to put the pressure on her husband to take her back.90 The dynamic changed, however, when Abraham defended himself and said: “She treats me with contempt, me and my family: my brother, my sister, and their children, and all my relatives.” The court investigated his statement and found that it was true. The resulting settlement was that the couple would remain married but Salma was required to accept very harsh conditions. She was to Stand up in his presence whenever he enters or leaves a room. She will serve and honor him, and whenever she is pure she will not abstain from any household chore. When she sees him sorrowful, she will not talk back to him. Even if she has need for expensive cover and clothing, she will ask him only for those he can afford. She will not scorn him with contemptuous and derisive words, even if only to his relatives. When mentioning him or his relatives, she will do so according to their honor. She will not improperly disobey him, in word or deed, and will leave the house only with his permission. She will not demand that they move to Fustat or any other place, unless he himself wishes to do so. She will respect, honor and serve him. She will not sit idle in his house, but occupy herself with work on flax, wool, and household needs such as baking and cooking.91 If she were to break any of these conditions, Abraham would be absolved of all obligations toward her and she could be divorced without any delay on the part of the court. For his part, Abraham committed to “be with her with all his heart, without compunctions like virtuous Jewish men, respect, honor, and maintain her as far as his means permit.” The unequal length and content between the spouses’ obligations leave no doubt regarding who emerged victorious.92 Salma was able to secure temporarily the community’s compassion. However, the fact that Salma was a foreigner without local male backing

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while her husband belonged to a local family changed the court’s initial attitude and led to what is probably the settlement with the harshest conditions on a wife preserved in the Geniza.93 Subtle indications of the court’s adoption of the husband’s perspective can be detected even in an oft-­discussed marriage settlement from 1118 that has rightfully been characterized as “one of the most robust defenses of an individual woman’s rights within marriage preserved in the Geniza.”94 When Abū al-­Ḥasan Solomon ha-­Kohen b. Menasse ha-­Kohen married Sitt al-­ Nasab bt. Abū al-­Mūna Isaac in Fustat, Solomon undertook a legally binding commitment in their marriage agreement that if she disliked living with his sisters and mother, he would relocate her and set her up in a separate dwelling by herself.95 This stipulation became a self-­fulfilling prophecy when after several months “words passed between her and his sisters.96 She therefore requested relocation and separation from them, according to what he had obligated himself to [do for] her.” Solomon moved her to a separate dwelling but after a short while asked his wife to return to live with his family where she would reside on a separate floor. The wife’s uncle, Abū ʿAlī, negotiated a compromise with Solomon along these lines. Sitt al-­Nasab would return to live with Solomon and his family, yet she would reside in a separate place of her own over which she would have full authority. Solomon’s mother and sisters would not enter her space, nor ask her for anything “nor take from her (even) a matchstick.” If Sitt al-­Nasab demanded again to be relocated to a separate dwelling, Solomon had to oblige, and if he failed to do so or failed to uphold any part of the agreement, he would pay the enormous fine of fifty dinars.97 The compromise seemed to have been effective as sixteen years later we find Solomon and Sitt al-­Nasab appearing in another legal record as still married.98 Yet even in this robust defense of a woman’s rights we can see how the court adopted the husband’s perspective. When Sitt al-­Nasab asked Solomon to be relocated, as he committed to do in their marriage agreement, the legal record reports that “necessity compelled him to move her into a place by herself. He remained with divided heart and the rent and difficulties were too great for him” (ll. 8–10). Despite his own earlier commitment to move her to a separate dwelling, the deed presents the relocation as necessity compelling him. Furthermore, the record presents as legal facts what are essentially the husband’s claims (“He remained with divided heart and the rent and difficulties were too great for him”). We do not hear of Sitt al-­Nasab’s heart problems or her difficulties with her in-­laws. There is also no assessment

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of Solomon’s claim that the additional rent was a serious burden; this was simply taken as fact, although it is clear that Sitt al-­Nasab and Solomon belonged to the highest echelons of the Jewish community and in other deeds we see Solomon engaged in transactions of real estate and slaves.99 The court’s narration of events from the husband’s perspective reflects its sympathy for his predicament—being separated from his mother and sisters and incurring new financial burdens. From this understanding position toward the husband, the wife is urged to compromise the right promised in the original marriage agreement. Attention to the narrative aspect of the legal record thus reveals an easily missed nuance that attests to the court’s gendered inclinations. However, Sitt al-­Nasab was not without resources. The domicile clause in her marriage agreement meant that she could request relocation and receive it. However, this relocation worked for only a short time before Solomon started exerting pressure on her to return to live in his family’s house where she would be given a separate space. At this point, having an uncle who was a trustee (al-­neʾeman) of the court was crucial. The uncle positioned himself as a mediator between his niece and her husband (“I do not want to cause you harm nor separate you from your sisters, but I also do not want to harm my brother’s daughter”).100 From this intermediary position he negotiated a compromise: Sitt al-­Nasab went back to live in her in-­laws’ dwelling but was to live undisturbed in a separate space. Her right to choose the domicile was defended with a steep fine while she went back to live in her in-­laws’ dwelling. We see here the dynamics of dispute discussed in the previous chapter where each legal agreement serves as the starting point for the next round of renegotiation. The initial clause in her marriage agreement did not guarantee her right of relocation so much as it gave her the ability to demand it. Her uncle’s intervention bolstered her position, which translated to a more stringent record (“nor take from her (even) a matchstick”) and a substantial fine. However, considering the reluctance of courts to impose fines it is not at all clear how the next round of negotiation would play out. If after a while her in-­laws started intruding on her separate space, would she be able to demand and obtain relocation? What if in this future round of negotiation she did not have the backing of her uncle?101 Even in this example of a robust defense of an individual woman’s rights we can detect the identification of the court with the male point of view and the degree to which Sitt al-­Nasab’s negotiation position depended on having a combination of a legal obligation by her husband and the support of her uncle.

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As a final case, it is useful to examine an inheritance dispute that displays similar dynamics to the marital disputes explored above. When her father died, Bārra (“Innocent”), the daughter of Ḥalfon the olive oil merchant, fought over the inheritance with her brother, Ghālib Abū Manṣūr the cantor.102 Bārra claimed that their father had given her real estate as a gift. She presented two deeds to the Jewish court at Fustat. The first was a Jewish deed stating that her father had given her a small upper apartment. The second was a deed from a Muslim court stating that her father had given her the entire house as her dowry. The Jewish court accepted the Jewish deed but rejected the Muslim deed following the lead of Ghālib, who declared it was tampered with or forged (muzawwar).103 Refusing to give up, Bārra appealed to a Muslim court.104 The Jewish court set out to proclaim the ban against her for “abandoning the living laws of God,” but before doing so a prominent member of the community, Abū ʿAlī Yefet the glory of the congregation b. Abraham, intervened to convince her to back down. The siblings and the witnesses met in Yefet’s home and he tried to persuade Bārra to back down from her claims, to no avail. The deed that records the testimony of the witnesses about these events was to be given to Ghālib to be used as evidence in any future litigation. However, for an unknown reason, the deed was never signed; instead, it ends with “This was a long time ago and when”—suggesting that some new development took place that alleviated the need to complete the present document.105 Attention to the language employed by the legal document and what narrative it presents again reveals the court’s siding with the male litigant. From the very outset Bārra’s claim is presented as an allegation (Ar. zaʿamat) (line 4).106 It is not clear on what basis exactly Ghālib claimed that Bārra’s Muslim document was invalid and why the Jewish court so readily accepted this claim as fact.107 While according to Jewish law a daughter does not inherit if she has a brother, Bārra claimed that her father had given her the apartment in a Muslim deed as part of her dowry. The Geniza preserves several ­examples in which a debt or a gift to a Jewish woman was registered in a Muslim record, so Bārra’s claim was in no way far-­fetched.108 When Yefet interceded to “mediate between them” (line 19) we are told that (the intercessor Yefet) spoke to them [at length] and reproached Bārra saying: “Only the upper floor is confirmed to you by the Hebrew deed, and the Muslim [deed] does not confirm to you anything.” She responded deceivingly (Ar. wa-­hiya tughāliṭ wa-­taqūl):

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“No! My father gave me this house and it is mine!” The aforementioned elder Abū ʿAlī said to her: “And the other house, the large one, which is adjacent to this house, do you have something with which you claim your father gave it to you also?” She said: “No, I do not have any right over the other house at all and no pretext.” We spoke gently with her to take what God made lawful for her and abstain from demanding what is not hers by right, but she refused and did not accept (this). (lines 21–29) In this “mediation” only Bārra is reproached and we hear only the exchange between the mediator and her. Her answers are described as deceiving although arguably the fact that she denied that her father had given her another apartment lends some credibility to her claim. We also see again the pressures inflicted on women to relinquish their claim couched in religious language, as encountered in other examples above. Of course, we have no way of knowing what really happened and whether the Muslim deed was valid or not. Jewish authorities saw the frequent appeal of Jewish women to Muslim legal institutions as a threat to their authority and to the autonomy and integrity of Jewish communal life, which can explain the treatment Bārra received. At the same time, it is also clear that by recording the court’s appeal to Bārra for compromise and her refusal to submit to these appeals, the court portrayed itself and its emissaries as the paragons of conciliation and peace and Bārra as deceitful, uncompromising, and “abandoning the living laws of God.” Ghālib and Bārra came from a middle-­class background, as their father owned several properties. However, with her father gone and her brother as her opponent, it seems that Bārra was bereft of male support (the record does not mention whether she had a husband or a son).109 In contrast to Bārra’s changed social position, Ghālib enjoyed the prestige of being a communal functionary due to his role as a cantor. Moreover, some further digging reveals that on at least three occasions Ghālib served as a member of court and signed legal deeds.110 In fact, in one of these sessions Ghālib served alongside Yefet b. Abraham, the very same peace-­loving righteous elder tasked with reaching a compromise between Ghālib and Bārra (Figure 2). It is not far-­fetched to suggest that Ghālib’s involvement with the court played a role in the smooth way in which Ghālib’s claims were adopted by the court and the high-­handed treatment given to Bārra. The case of Bārra and Ghālib showcases, on the one hand, the consequences of the ongoing familiarity that middle-­class Jewish

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Figure 2. A 1076 deed of release from Fustat. Underlined on the right is the signature of Yefet b. Abraham b. Yaʿir and underlined on the left is the signature of Ghālib b. Ḥalfon. T-S 20.21. Reproduced by kind permission of the Syndics of Cambridge University Library.

men enjoyed with the court as they moved easily between the role of litigants and that of court members. On the other hand, it speaks to the inherent instability of women’s lives, even those belonging to the middle class, as their sources of power depended to a large extent on their relationships with men, which often proved inherently unstable.

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Conclusion Jewish women in medieval Egypt appear frequently in legal records. In most cases they appear not unlike the way men do. They buy, sell, and acknowledge a debt or release someone from it while performing the symbolic purchase (qinyan). However, it would be wrong to deduce from this that gender did not play a significant role in the workings of the court or that the sages consistently assisted women in their legal endeavors. As explained in the previous chapter, Jewish courts provided legal and notary services as well as serving as a forum for resolving disputes.111 When the parties came to the court with a prior agreement, if the agreement did not transgress Jewish law, the court performed the qinyan and produced a legal record. In such cases, women indeed appear in legal records in a similar manner to the way men appear (of course, what may have taken place outside of court that led to these agreements is another matter and is examined in the next chapter). However, this chapter has dealt mostly with cases of litigation. When the parties were in disagreement, the court usually tried to reach a compromise. The court and the elders tended to show a greater degree of understanding for menʼs predicaments and to adopt menʼs perspectives on the events that had led to litigation. As a result, the courts often put more pressure on women in their attempts to reach a compromise. The pressures exerted by the courts often took the form of religious admonitions (“God cast this duty upon you,” “The divine law requires you to do so”), whereas men were rarely addressed in this way. The fact that these religious admonitions were occasionally not required by Jewish law reveals that they reflected social rather than legal expectations. Thus, they tell us more about the way courts approached and dealt with women than about the legality of the womenʼs actions. Gender and status were intertwined in the work of the courts. The previous chapter demonstrated the centrality of social relationships to the dynamics of disputes in the legal arena. The petitions and responsa explored in the first part of this chapter show that women of weak status (widows, orphans, yevamot, captives, etc.) without male backing often encountered great difficulties when they came before the communal courts. However, the conclusions of this chapter should not be limited to women of weak social status. Jalīla and Bārra were once part of the comfortable middle class and yet when Jalīla lost her husband and Bārra lost her father, they encountered a legal arena stacked against them. Even in the case of Sitt al-­Nasab, whose rights were vigorously asserted and who had a supportive uncle who served as a

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trustee of the court, we were able to detect how gender influenced which side the court would tend to pressure and whose narrative it would adopt. As is argued at greater length in Chapter 4, because social ties were the primary form of capital for women, and this asset was limited to a rather narrow pool of men, even women of the middle and upper classes could find themselves at a severe disadvantage if they lost their male support, either due to their father passing away or due to opening a front against their brother. The importance of the combination of gender and status to the workings of the court meant an inherent precariousness in the lives of all women.112 A benign paradigm, however, should not be replaced with a lachrymose one. While it is imperative to recognize that gender and status played a major role in the workings of Geniza courts, it is also important to notice a countertrend reflected in the documents studied in this chapter. Despite the pressures and admonitions imposed on them, the women whose cases were discussed in this chapter did manage to have their stories heard and occasionally even obtained justice. The numerous legal records found in the Cairo Geniza testify that many women made frequent use of the courts, but they also reveal how womenʼs experiences of the court were a gendered uphill struggle. Despite the odds stacked against them, such battles could be won. The cases of Jalīla and Saʿīda show that some women were able to resist the pressures they encountered in the local community while also alerting us to the probably larger number of women who were not able to appeal to both the Muslim judge and the Head of the Jews (in the case of Jalīla) or leave their local community, travel to the capital, and submit their case to the central court with supportive witnesses (in the case of Saʿīda). Justice was not beyond the reach of Geniza women, but they had to strive hard to achieve it. While this chapter explored the combination of gender and status considerations at court, the next chapter examines the variety of pressures imposed on women to compromise their monetary rights both at home and in the court. Chapter 4 then looks at the arsenal of actions available to women to resist such pressures.

Chapter 3

Compromising Women Gender and Property in Divorce and Married Life

In an early thirteenth-­century petition, a battered wife described her marital woes to a communal leader. Her husband had taken household items from their home and sold them. When she tried to prevent him, he beat her: Your slave is in great distress. . . . On Wednesday, he (i.e., her husband) secretly took the bench, the pillows and the supporting pillow. He was not content with them. No sooner he sold them, than he came demanding from me something else. When I refused to give, he beat me with something that should not be mentioned. Next day in the morning, he told me: “Get up and leave to your father’s house. Because when I will come back in the evening, I will kill you.” By the truth of the sharīʿa, it is he who told me “leave!” I sent (a letter) telling my lord about my going out of the house. My lord prevented him (i.e., her husband) from doing it. I obeyed you and stayed. When they saw me staying, the quarrel between us intensified. On Saturday, my mother came to ask about me. He and his father said: “If I satisfy (your wish), you shall pay my poll tax every year,1 otherwise, save yourself (and go away) lest I kick you out.” . . . He has four dinars worth of wine and he has no need of me. His mother and father tell him, ‘Beat her until she breaks.’2 It is difficult to remain indifferent to such a vivid account of marital misery. By recounting her suffering at the hands of her husband, the wife sought

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to convey her desperation to the communal leader and elicit action on her behalf.3 For the purpose of this chapter, several elements in her narrative particularly stand out. First, the husband forcibly took items from the house (probably items from the wifeʼs dowry) and sold them for his own profit. Second, when the wife objected, she was beaten and kicked out of the house. Third, the husband conditioned his acceptance of his mother-­in-­law’s suggestion (probably she asked him to divorce her daughter or to agree to take her back) on the payment of his poll tax. Finally, the family of the husband advised him to beat his wife until she broke, in other words, until she submitted to his monetary demands and forwent hers. This anonymous wife was not alone. In a wide variety of occasions, women relinquished monetary rights to their husbands. The previous chapter examined the pressures imposed on women by the Jewish courts during disputes. This chapter, on the one hand, narrows to focus on monetary pressures and, on the other hand, expands the scope by examining such pressures both at court and at home. Furthermore, it adopts a broad perspective looking at both married life and divorce in a way that allows us to connect issues previously studied separately. Connecting what happened at court with what happened at home, and what took place during the marriage with what took place at divorce, reveals that compromising womenʼs monetary rights was a broad phenomenon that constituted a central aspect of the lives of Jewish women in medieval Egypt. The chapter begins by examining the ransom divorce, a procedure whereby a wife relinquishes her delayed marriage payment and in return the husband divorces her.4 I argue that cases in which husbands forcibly pressured their wives to ransom themselves ought to alter our understanding of the ransom-­divorce procedure. I then expand the view to look at divorce settlements in general, arguing that the fact that a wife released her husband from his monetary obligations at divorce does not necessarily indicate that a divorce was initiated, or even desired, by her. This leads me to question the accepted view that the majority of Geniza divorces were initiated by wives. Examining cases in which women agreed to the payment of their ketubba in installments and relinquished some or all of their children’s maintenance reveals that the undermining of women’s monetary rights was a widespread reality. Since it can be argued that compromise at divorce was merely a trade-­ off for a husband’s consent to divorce, the chapter then turns to cases in which wives compromised their monetary rights during the marriage. I then look at three complex cases that attest to the dynamics that brought about

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such compromises. In the conclusion I offer three contexts (an economic, a structural, and a cultural one) within which the compromising of women’s monetary rights should be understood and explore its ramifications for our understanding of the family.

Revisiting the Ransom Divorce Jewish divorce is fundamentally unilateral. The Mishna states that “while a woman may be divorced with her consent as well as without it, a man can give divorce only with his full consent.”5 A husband may divorce his wife “even if she has merely spoilt her food” or “even if he finds another woman more beautiful than her.”6 However, a wife can demand that her husband divorce her only in several well-­defined circumstances.7 Moreover, Jewish courts tend to be reluctant in pressing a husband to issue a bill of divorce (get) because restoring peace between spouses is seen as preferable to divorce and for fear of a legally invalid “forced get” that would make any future marriage of the wife adulterous and her subsequent children bastards. The result of all of this is that when a wife seeks a divorce from her husband, she usually needs to appease him financially until he consents to divorce her. This configuration opens the door to negotiations that frequently deteriorate into blatant blackmail on the part of husbands. In light of this asymmetry, the discovery of an alternative tradition of Jewish divorce has repercussions that go beyond the recovery of medieval married life. In a series of groundbreaking studies, Mordechai Akiva Friedman brought to light “a tradition which recognized the wife’s rights to initiate divorce proceedings against her husband.”8 In the early studies, he explored the history of a rare stipulation in marriage agreements stating that if the wife were to hate her husband and seek a divorce, the husband would have to comply.9 Friedman found this stipulation in fifth century BCE Elephantine papyri, in the Palestinian Talmud (“sealed” by around 400 CE), and in Palestinian-­style marriage agreements in the Geniza.10 In later studies, he explored evidence from the Geniza and from responsa for the practice of women initiating divorce proceedings against their husbands.11 In order to obtain a divorce, the wife would appear before the court and relinquish the delayed payment (Heb. meʾuḥar). Afterward, the courts would compel the husband to write his wife a bill of divorce. As one court document states: “She ransomed herself with her delayed payment, and the court obligated

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him (to give) to her a bill of divorce.”12 While Geniza documents refer to this practice as iftidāʾ (Arabic for “ransom,” from the same root as the Hebrew pidyon), Friedman argued that the origin of this practice is not the essentially similar Islamic khulʿ procedure but probably the Babylonian “rebellious wife” enactment, which might itself be related to the Palestinian tradition that recognizes a wife’s right to initiate divorce proceedings.13 In his studies on wife-­initiated divorce proceedings, Friedman’s primary concern was to demonstrate that under certain circumstances “a wife who was unhappy with her marriage was empowered by the courts to sue for and bring about the termination of her marriage.”14 For this purpose, he focused on cases in which a wife initiated divorce proceedings unilaterally and where “her suit was accepted by the court and the marriage terminated even against her husbandʼs protest.”15 This led him and others to conclude that women easily obtained divorce.16 However, there is much evidence that, alongside the procedure that Friedman demonstrated, Jewish husbands often forcibly pressured their wives to ransom themselves.17 Once we leave the (certainly important) search for legal traditions and turn to examine social practice, this “other face” of iftidāʾ becomes prominent. In a petition to Maṣliʾaḥ ha-­Kohen, the Head of the Jews in Egypt in the years 1127–39, the wife of Khalaf b. Hārūn (Aaron) described her marital woes: The servant informs your illustrious station of the state of injury, hardships and harm in which I am with my husband. He keeps casting me out of the house and demands from me the iftidāʾ. . . . Every time he casts your servant out he leaves me without maintenance. It has now been (like this) for eight months. . . . I am close to perishing. I seek the aid of God, the exalted, and of your loftiness to examine my state. Either he improves his behavior with me or let him provide what is incumbent upon him. For the humiliation and the hunger cannot be tolerated, neither the constant evictions.18 In another petition to Maṣliʾaḥ, a different woman writes: Your servant has been married to this one for fifteen years, and has never received from him a thing, not even a piece of silver for going to the bathhouse; he has bought me no clothing, not even a cap, and I complain about vexations and beating. He keeps saying to

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me: “Ransom yourself! (iftadī)”—may God punish him for what he is doing to me. He must pay me my marriage payment; fifteen years I have been suffering from his bad character and his vexations. Now I throw myself upon God and upon you. I am a captive. Free me.19 In a query to Maimonides, a similar situation is described: “A man married a woman and she stayed with him for five years. He abused her, beat her, humiliated her and caused her harm. He t(old) h(er): ‘Ransom yourself with your delayed marriage payment and I would release you with a get.’ . . . Later, she ransomed herself with her delayed marriage payment due to the severe beatings. . . . He used to terrify her and beat her face with his hands. (Afterward,) he would tell her repeatedly ‘I will not return to harm you again.’ She vowed not to return to him again.”20 In a letter to his uncle, a country physician recounted how he demanded that his wife forgo her delayed marriage payment, but she refused.21 In other cases, we hear how husbands (often with the assistance of their kin) tormented their wives physically and emotionally so that they would relinquish the monetary rights they were due at divorce.22 The picture that emerges is one where iftidāʾ, that is, an arrangement whereby a woman relinquished at least her delayed marriage payment in return for divorce, was predominantly conducted not only with the husband’s agreement but as a result of his pressure. The situation in which a wife initiates divorce proceedings due to subjective dislike of the husband, and the court compels the husband to issue a divorce, was rare.23 Friedman’s studies convincingly demonstrate that under some circumstances it was possible for a wife to initiate divorce proceedings, but only in one court document (cited above) and a couple of responsa do we hear of a wife initiating divorce proceedings and the court compelling the husband to divorce her.24 Other documents attest that women could demand a divorce but we do not know the outcome in those cases—whether a ransom divorce was intended or whether the court would compel the husband to hand a get. For women, initiating divorce depended on securing the cooperation of the court, which was neither automatic nor easy. For example, a poor orphaned woman married to a man who did not provide for her and for the previous ten years had been living off her own work wrote: “He began giving me a bad name. So I went to the judges and ransomed myself with everything ((due to me from him) to save my honor. But they did not grant me a divorce.”25 Considering the two previous chapters, it will not come as a surprise that it seems social status may have been decisive for a woman’s success in divorcing her husband against his

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will.26 As often happens, a single legal framework could work in contradictory ways, benefiting wealthy women while disadvantaging poor ones. Recognizing that the ransom divorce could be the product of physical and emotional pressure on the part of husbands carries far-­reaching consequences for our understanding of Jewish divorce in medieval Egypt. Goitein saw women as generally powerful, and when he noticed that most divorce arrangements involved a substantial monetary concession on the part of the wife, he understood this as an indication that most divorces in the Geniza were initiated and pushed for by women.27 Thus he wrote: “One gets the impression that even the divorce settlements in which a wife makes great concessions, such as waiving the cash payments due her from her marriage contract, were initiated by the female partner” and “in many, if not most cases about which we have more detailed information, one gets the impression that the female partner was the initiator of the divorce proceedings, mostly, to be sure, by renouncing what was due her.”28 Later scholars repeated Goitein’s conclusions.29 However, the many cases in which a husband or his family pressured the wife to forgo her delayed marriage payment cast serious doubt on such impressions. We cannot deduce from a divorce in which the wife relinquished her rights that she was the one initiating the divorce. This not only calls into question our understanding of the ransom divorce but casts a long shadow over women’s experiences of divorce in general. Elsewhere I argued that while scholars tend to portray medieval women as desiring divorce, in Geniza material and in responsa we usually find Geniza women going to great lengths to keep their marriages intact.30 Later in the chapter we will see the far-­ reaching concessions that some women were willing to stomach in order to preserve their marriages. The impression (to borrow Goiteinʼs language) is that women preferred to be married rather than to be alone and were willing to make substantial sacrifices toward this end.

Looking at Divorce Settlements When we turn from cases that explicitly mention the ransom divorce to look at divorce arrangements more generally, we find that many women received only a fraction of the sums of money promised to them when they were married. This section will survey a variety of topics in which we can detect the systematic erosion of women’s monetary rights at divorce.

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A central stumbling block in dealing with the financial arrangements at divorce is that divorce settlements are often simply a mutual release of the spouses from all claims (the wife’s release usually takes substantially more space). Since their purpose is the release from claims, these deeds frequently do not tell us whether any sum was actually paid, and if something was paid, how much it was and how it compared to the original sums stated in the ketubba.31 Moreover, since courts sometimes settled different aspects of the divorce in different sessions, we often hear only about the delayed marriage payment but not the payment of the dowry or the maintenance for children and vice versa. These considerations rule out the possibility of a statistically meaningful study of divorce settlements. However, on many occasions it is quite clear that the sum paid at the dissolution of marriage was substantially smaller than what was guaranteed in the ketubba. In some divorce cases, we are told outright that the wife agreed to a reduction of her delayed marriage payment. For example, in January 1268, the unnamed wife of Abū al-­ʿIzz Moses b. Abū al-Barakāt declared that she was reducing the delayed marriage payment due to her from 70 to 30 nuqra dirhams.32 In other cases, the sums mentioned are so low that they were probably not the sums originally declared at the marriage.33 An especially striking case is a 1023 divorce settlement, probably from Palestine, whereby a polygamist husband divorced his first wife once a communal head pressured him by seizing some of his property.34 Due to the polygamous marriage, the wife was entitled to the full ketubba, even though she might have been the one to initiate the divorce proceedings. The wife received four dinars and released her husband. She also released him from the maintenance of their child (on this, see below). It is clear that the four dinars she received was a substantially lower sum than the original promised to her in the ketubba.35 We see that even when the wife was legally entitled to receive her full ketubba, she could end up receiving only a little and releasing her husband from paying the rest. In a case from 1244 Fustat, not only are we not told whether the wife received any payment upon divorce, but she made monetary concessions far beyond what was required by the ransom divorce. She gave up the maintenance her children were due from their father, a topic we explore below. She also not only released her husband from the debt of her entire ketubba but gave him her dowry as a gift.36 This is significant because if the ransom divorce was easily available, why would a woman need to make even greater

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concessions to her husband? This case suggests that the ransom divorce was not easily obtained and that some women had to make even more far-­ reaching concessions. Furthermore, it shows us that the ransom divorce was only one manifestation of a broader dynamic of women forgoing their monetary rights. Even when we know the sums promised at marriage and are told that the wife received almost all of them at divorce, the cluster of documents about the divorce of Surūr and Surūra (ironically both names mean “happy”) suggests that we may not be getting the whole story. Surūr was a merchant from Qayrawān (in modern-­day Tunisia), and sometime during the 1030s he and his wife relocated to Egypt. However, Surūr did not stay put and left Surūra and their three children for long periods of time without maintenance, leading her to sue for divorce. In a draft of a deed from 10 February 1040, we see Surūra appearing before the Fustat court and claiming that Surūr owed her a gigantic delayed marriage payment of 200 dinars and that from her dowry he owed her a further 100 dinars. Despite his obviously wealthy background, Surūr declared that he had nothing to give her. Instead, he transferred to her an upper apartment in a house he had inherited from his father in Qayrawān worth 295 dinars, leaving him with an unpaid debt of 5 dinars.37 Apparently, Surūra had made a good deal and had received almost everything due to her. However, in a draft of a deed from November 1043 we see Surūra selling this very apartment to a Maghrebi merchant for only 45 dinars!38 It seems that the upper apartment was never worth 295 dinars and the price stated in the 1040 draft was a fictive sum meant to release Surūr from his obligations to his wife.39 Two further documents record Surūra’s attempts to collect the maintenance she and her children were due by receiving half of a debt that Surūr’s father was owed by an Alexandrian merchant as recorded in a deed from 1029. As Goitein already observed, this was clearly a bad debt that would be most difficult for Surūra to collect.40 This case suggests that we cannot take the sums recorded in divorce settlements at face value. It also shows the great difficulties even formerly wealthy women faced when collecting what was owed to them and how their monetary rights might be fulfilled with difficult-­ to-­sell items or with bad debts.41 Furthermore, it is likely that the court was aware of the fictiveness of the value accorded to Surūr’s upper apartment and the difficulties Surūra would face when trying to collect a thirdhand debt over ten years old and was thus cognizant of, if not complicit in, the compromising of women’s monetary rights.

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Paying in Installments Another way in which women’s monetary rights were undermined at divorce was the practice of paying the divorce settlement in installments. According to the Mishna and Talmud, a husband may divorce his wife unilaterally without first paying the ketubba, which then remains as a debt against him. However, the custom of the Geonim was that a husband could not divorce his wife without first providing her ketubba (if, of course, she was entitled to one).42 Maimonides was asked about a man who divorced his wife while declaring her meʾuḥar and some of her dowry as a debt upon him by vowing that he had nothing to pay them with. In his answer, Maimonides explained: “The law of the Torah is to (allow) someone who has nothing to divorce and record the ketubba as a debt upon him. Yet, we have never heard or known a place that this is their custom. For if this were to be done, ‘you have not left our father Abraham a daughter who can (safely) dwell with her husband.’43 But our well-­known custom throughout the land is that (the husband) brings the meʾuḥar and then he divorces.”44 However, the wife could agree to receive her ketubba in installments.45 In this case the divorce would be performed, and the wife would depend on the goodwill of her former husband and on the cooperation of the courts in order to receive the installments. The Geniza preserved many divorce documents in which the wife agreed to receive what was owed to her in either weekly or monthly installments. Occasionally, this was combined with a reduction of the delayed marriage payment. For example, in August 1217, (Sitt al-­)Khawāt and her husband, Abū al-­Ḥasan the perfumer, came to an agreement that Khawāt would reduce her meʾuḥar from fifteen dinars to ten. From these ten dinars, she received one dinar and agreed to the payment of the rest in installments, three dirhams every week (theoretically for two years and about three months). The first payment was to be made on 30 December of the same year.46 Although divorce settlements often include a payment plan or an acknowledgment by the husband that he owes his wife such and such a debt, we are not told whether the plan was kept and the debt paid.47 This is similar to the problem we’ve encountered whereby divorce settlements simply contain a mutual release with no information about whether the wife received anything. However, in a few cases we can tell whether the payment plan as laid out in the divorce settlement was adhered to as the parties recorded the payments on the back of the same document (Figure 3).48 In fact, in one such document the husband committed himself to “not pay her (i.e., his

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former wife) this debt . . . without recording it on the back of this deed or in the presence of two witness.”49 In this document, Surūr b. Ghālib appeared before the Jewish court of Cairo in 1170 and declared that the ketubba of his wife, Sitt al-­Jamīʿ bt. Shemarya, contained a delayed marriage payment of ten dinars. He agreed to pay one dinar immediately and the rest in installments of a third of a dinar every month. The reverse of the deed records a payment of one dinar (probably the payment of one dinar mentioned in the recto) and three further payments, probably of a third dinar each. Out of ten dinars, he paid only two or three dinars.50 A fragment of a deed bearing dates from December 1033 to April 1034 attests that Ezra (or ʿAzarya) b. Benjamin agreed to pay his former wife, Mubāraka bt. ʿAṭiyya, three dinars in monthly payments. Clearly, this represents only a fraction of the original delayed marriage payment. In return, Mubāraka released him from all other obligations (dowry, clothes, rent, and maintenance). The back of the document records only one payment of half a dinar.51 In May 1107, the former wife of a man from Caesarea called “son of the judge” admitted that she had received two and a half dinars in monthly installments of a third of a dinar each month from the ten dinars that she was owed, probably for her delayed marriage payment. She next received half a dinar in March/April 1108. The next payment of half a dinar came around February 1109. Finally, she received a quarter of a dinar in August 1109. In summary, she received three and three-­quarters dinars out of ten.52 In all of these cases, the payment plan was not honored. The payments arrived later than promised and the women received, at best, a third of what they were owed (which might have been a reduced sum to begin with). For comparison, Goitein writes that in serious cases of merchant insolvency, the debt was usually reduced by about a third.53 In other words, merchants’ creditors were able to collect at least twice as much as women were able to collect. While one may think that social class rather than gender was the crucial factor, the last example concerns a man of at least middle-­class status paying only a third of what he owed. Therefore, while wealth and social class may have played a role, it seems that gender was the dominant factor. Wives faced a difficult predicament: if they insisted on receiving their ketubba in full before accepting the bill of divorce, they could remain married indefinitely and even become grass widows (agunot) should their husbands choose to flee. On the other hand, if they agreed to receive their ketubba in installments, they stood to receive, after much effort and many delays, only a fraction of what they were owed. Either way they stood to lose.54

Figure 3. The divorce settlement of Surūr b. Ghālib and Sitt al-Jamīʿ bt. Shemarya, Cairo, 1170. The recto holds the settlement, and the verso records the payments. T-­­S 13J3.14. Reproduced by kind permission of the Syndics of Cambridge University Library.

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Considering that paying in installments meant in practice a reduction of at least two-­thirds of ketubba payments, it is not surprising to find petitions and responsa in which husbands ask to be allowed to divorce their wives with the dowry or the delayed payment remaining as a debt upon them to be paid in installments. Indeed, one often senses that husbands are searching for various pretexts, insolvency being one of them, on which they can rid themselves of the financial burden of the ketubba. For example, a query asks: “A man married a widow and found in her a hidden blemish, which later caused him55 to be sick. He is destitute and has no livelihood except (what he gets from) the poor people of Israel who live off of charity.56 He is in distress from poverty. Whenever he demands from her a divorce, she demands her full ketubba, but he is poor. Does the noble law offer him dispensation to pay her ketubba in installments in accordance with his means due to her sickness and his poverty?”57 Another husband went even further: I have a wife who I married in Alexandria. I have hated her for the baseness of her character and for her evil deeds. I have been with her three years, “few and hard,”58 and while they are few in number, they were like twenty years with the evil manners I suffered from her. I have almost perished from the sickness, poverty and evil woman. They (i.e., her family) deceived me from the get go, until I took her against my will and not for my benefit. And now her mother is here! Either you divorce me from her, or else I will abandon her, travel to a far away place never seeing her again, and she would remain a grass widow. Either you give her a get from me and place her delayed marriage payment upon me in installments . . .59 These responsa and petitions reflect the continuous pressures inflicted by divorcing husbands to obtain release from the payment of the delayed marriage payment, or at least to be allowed to pay it in installments.60 Further pretexts are explored below.

Children’s Maintenance Another concession made by wives, mentioned already in several of the settlements discussed above, involves the maintenance of children. Since this issue has been examined in a study by Yeḥezqel David, the discussion here can

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proceed from his conclusions.61 According to Maimonides, girls of any age ought to stay with their mothers while boys until the age of six should stay with their mothers (if this is what the mothers want) and then move to their father’s custody.62 When it comes to children’s maintenance: A man is liable for the maintenance of his minor sons and daughters, until they reach the age of six years. After that he must provide them with food until they grow up, according to the enactment of the sages. If he refuses, he should be reprimanded, shamed, and importuned. . . . He may not be compelled, however, to maintain his children after the age of six.63 When does this apply? When the man is not reputed to be wealthy . . . if he is reputed to possess enough wealth to be able to afford alms sufficient to cover his children’s needs, the corresponding amount should be forcibly collected from him, under the heading of alms, and the children should be maintained out of it until they grow up.64 Looking at divorce settlements, David presents many examples of women releasing their former husbands from the maintenance of their joint children in return for custody. The problem is that usually divorce settlements do not mention the ages of the children and thus it is impossible to know whether these agreements departed from the minimal requirements expressed in Maimonides’s ruling. However, in a couple of cases it is clear that we are dealing with boys under the age of six and that the mother is relinquishing a right that was not hers to forgo. In one case, we hear that the son is still breastfeeding and in another case the mother commits to maintain her younger son for ten years, which clearly implies that he was less than six years old at the time.65 David frames such cases as a deviation from Jewish law caused by mothers’ love for their children yet concludes: “Women were forced, in most cases, to accept a compromise rather than the law, in other words to forgo maintenance due to their small children in exchange for the husbands’ relinquishing their custody. . . . On occasions, women bought custody over their children with their ketubba money. Women’s compromise indicates the weakness of the courts in that period to impose the halakha over reality, and the weakness of women to push the authorities to act for the implementation of the law.”66 David correctly identifies the trend of women making financial compromises at divorce. However, placing compromises over children’s maintenance alongside other such compromises explored in this chapter shows that they belong

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to a broader dynamic rather than indicating the weakness of the courts or the corrupting effect of women’s love for their children on the implementation of Jewish law. After all, these agreements were performed and produced by the legal system, and the members of the court could have instructed the litigants that the wife could have custody of the sons until the age of six and that the father’s duty of maintaining his children was inalienable. Indeed, in the cases in which the maintenance of boys under six years old was relinquished, we do not see the members of the court trying and then failing to coerce the husbands.67 It is more correct to describe these cases as showing how fathers exploited mothers’ desire for custody in order to release themselves from their legal financial responsibilities. This understanding is reinforced by the many complaints about fathers not paying the agreed upon or required maintenance.68 Indeed, we see a similar dynamic in a case in which the husband died and the widow was accorded maintenance of 15 dirhams and 3 waybas (a unit of volume equal to about 15 liters) of wheat a month for the orphans by his parents. However, once the widow weaned the baby girl (i.e., once she was not needed), the grandparents stopped providing the wheat. They did this because “they want to maintain her meagerly so that she will give them (i.e., the orphans) to their grandmother.”69 While in this case the local communal leader opposed the grandparents’ actions, in other cases Jewish courts saw their role as facilitating this dynamic of compromise.70 Similar dynamics are attested in other Islamic societies.71 It is also important to understand what custody meant for women. As I argue and elaborate in the next chapter, the primary form of power for women was their social relationships. As a woman grew older, her supportive kin changed from her father, to her brother, and finally to her children. Thus, cementing the relationship with her children was a woman’s most important investment for the future. Therefore, at divorce, it was of paramount importance to retain custody of the children, especially the boys (girls were in any case given over to their mother’s custody). To signal women’s love for their children as the cause of these compromises not only construes husbands’ attempts to shirk their responsibility as natural and transparent but also distorts women’s difficult predicament as they had to compromise their immediate economic circumstances for their future prospects.72 To recap the ground covered so far, although it is difficult to know the exact monetary arrangements in many divorce settlements it appears that most divorced women received only a fraction, if anything, of their delayed marriage payment. Occasionally we even find women relinquishing part of the

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ketubba payment when they had a full right to it (for example, in the case of polygyny) or giving away the dowry (which is retained even in the iftidāʾ arrangement). Women were also pressured to agree to receive their ketubba in installments, which meant in practice receiving only a third of it or less, and to relinquish their children’s maintenance. Such agreements were recorded and upheld even when they went against Jewish law. Thus, compromising one’s monetary rights was a pervasive and fundamental aspect of womenʼs experience of divorce in the Geniza.73 These compromises were significant. The dowry and the delayed marriage payment were not minor assets that were easy for women to dispense with. Serving as a barrier that defended the wife from her husbandʼs arbitrary and almost absolute power of divorce, they functioned as “insurance” for the wife’s future in the event of widowhood or divorce. Losing them was a significant monetary loss that occurred when the woman was most vulnerable, when she had lost her main source of support and faced an uncertain economic future.

Compromising During the Marriage Women’s monetary compromises are not limited to divorce. The Geniza preserved many documents in which a wife agreed to a substantial reduction of a monetary right during her marriage.74 The reasons behind such agreements could vary substantially. In some cases, such actions could be freely willed or reflect a balanced exchange. For example, a wife could give the husband items from her dowry or remove her ketubbaʼs lien on his property in order to help facilitate his commercial undertakings.75 A wife could also agree to a reduction of her delayed payment in return for the husband’s taking upon himself especially high medical costs incurred by his wife’s illness.76 In some cases we hear of a wife who gave a gift to her husband or allowed him to have a free hand in her property, but we are not told the background for such actions.77 However, in many other cases we are told explicitly that such gifts and renunciations were made under duress or as a result of a marital dispute.78 Usually a couple would be on the brink of divorce and then a compromise would be reached whereby the wife agreed to a reduction of her delayed marriage payment and/or her dowry. For example, a responsum of Maimonides reports a husband as vowing: “If you do not forgo ten dinars from the ketubba, you will not be my wife.”79 When the elders tried to bring about peace between another

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couple, the husband declared: “I will not reconcile with her, unless she cedes to me the entire dowry.”80 In another case, Sitt al-­Ḥasan and her husband Aaron accused each other of many things until they reached the point of divorce. Someone intervened and brought about a compromise. Sitt al-­Ḥasan deducted from her dowry the substantial sum of fifty dinars. In addition, the items of her dowry were to remain in his house (apparently she took or attempted to take some items of her dowry). For his part he agreed to behave with her in a praiseworthy way and not kick her out of the house.81 Notice that the wife made a substantial monetary compromise while the husband merely vowed to behave in the way in which he should have anyway. In another fragmentary deed, it seems that a wife, Mawlat, reduced the debt of her husband, Abū al-­ʿAlāʾ, for her dower and dowry, leaving a debt of only seventeen dinars. She also withdrew her previous accusations that he beat, cursed, and deceived her. It appears she agreed that a certain apartment would be sold and that seventeen dinars from the sale would be deposited with the court.82 In a case that occasioned several queries to different scholars, we hear of a husband who “did not cease from harassing and tormenting (his wife) until he forcibly seized and tricked from her the half of the house that belonged to her, which he then mortgaged in Muslim courts.”83 In Chapter 2, we saw how the daughter of Abraham, the beloved of the Yeshiva, released her husband, Sar Shalom b. Yeshuʿa, from fifty dinars out of the seventy dinars he owed her in the delayed payment entered in her ketubba (she also released him from the “trustworthy” clause in her ketubba).84 Abrahamʼs daughter came from a wealthy family, which suggests that such compromises should not be associated only with poor families. The fact that we even find a formulary for a wife agreeing to a reduction of her dower suggests that such releases were a regular event.85 A related phenomenon is when a husband would agree to take back the wife after their divorce with a lower dowry or dower.86 Most of these documents are legal and do not disclose what it meant for a wife to “save” her marriage through monetary concessions that would only make divorce easier in the future. The delayed marriage payment is only paid at death or divorce, and we would like to know how husbands justified their demands to reduce it. After all, reducing the dower or giving the husband the items comprising the dowry could have grave repercussions for the wives and their children.87 A fragment of what is probably a petition written by a man who was abandoned by his father while he was in “the darkness of the bowels” (an Arabic expression for “before being born”) reports that not only did his father disappear, but the writer’s mother “also gave him precious objects from

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those that she had brought into the marriage in the ketubba, both gold and silver.”88 In a case for which we have several documents, a husband gave items from his wife’s dowry as a lien to a creditor. When the couple divorced, trying to retrieve the items proved to be a difficult and protracted affair.89 In the case mentioned above of the husband who harassed and tormented his wife until she gave him her real estate, once the wife was widowed her chances of getting back the property were low indeed. The distinction made above between freely willed releases and ones made under duress could be blurred even to the people involved. The next chapter explores a case where a wife relinquished a part of her dowry to her husband in the first year of marriage. Her father, together with the local judge, tried to undo her actions claiming that the wife was still under her father’s custody or that she was legally incompetent (Ar. saf īha), since only a fool would give up her monetary rights in the first year of the marriage.90 In this case, the wife might have acted out of a desire to assist her husband in his commercial ventures, but her father either did not wish to see his property pass so quickly into the hands of another man or was concerned about the future of his daughter in case she became widowed or was divorced. Jewish law provided ways for wives to contest such relinquishments after the fact. Because a wife could not remain without a ketubba “even for a single hour,” she could not forgo it entirely and the husband could only pressure his wife to reduce her delayed marriage payment (or he could rewrite the ketubba with a reduction). He could also pressure her to concede to him the dowry or part of it. If your husband exerted pressure on you to agree to the reduction of your delayed payment or dowry, probably the most straightforward countermeasure was to issue beforehand a notification (Heb. modaʿa) declaring that the action would be done under duress and therefore be invalid.91 If the wife was asked to relinquish dowry items that were not lost or stolen, she could also argue in retrospect that she consented only “in order to satisfy my husband,” in other words, so as to avoid a quarrel with her husband even without a prior notification. Through this provision (and in the many halakhic discussions that address it), Jewish law shows an awareness of the dynamics explored in this chapter and, at least partially, tried to protect wives from them.92 A wife could also try to cancel her relinquishment if she could prove coercion on the part of the husband in court.93 Despite the widespread incidence of wives’ surrendering their monetary rights, and despite the quite frequent mention of spousal duress in these transactions, we rarely see wives using the legal options to contest such

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relinquishments. It is probable that Jewish women were unfamiliar with the procedure of notification, as I know of only one case in which a woman issued one.94 Similarly, the claim “I only intended to satisfy my husband” is only rarely encountered in the classical Geniza period, and then only in responsa, not in legal records, petitions, or letters.95 The fact that legal venues were theoretically available but almost never used reveals the extent to which the pressures husbands inflicted on their wives to relinquish their monetary obligations were seen as natural. Beyond the reduction of the dower or dowry, wives made various other monetary compromises to their husbands, from forgoing their maintenance to relinquishing rent due to their families.96 We also hear of many cases in which husbands simply seized their wives’ dowry items and sold them for various reasons.97 Occasionally husbands took their wives’ property and left.98 Several documents reflect the apprehension that this might happen, thereby corroborating that this was a general phenomenon.99 To prevent such events, the dowry could be deposited with a trusted person appointed by the court.100 However, the husband could seize property even from such a person.101 It is true that we also hear of women seizing property unilaterally during a marital dispute. However, in these cases women usually take dowry items (i.e., their own property) and hide them with their family out of fear that the husband would take these items and disappear or that they might be kicked out of the house.102 Husbands, whether present or absent, often maintained their wives only partially at best, and attestations abound concerning the pressures on women to support themselves and their families from their own (or their families) resources.103 We also find husbands pressuring their wives aggressively to go out and work.104 Finally, in some cases the threat to a woman’s monetary rights came from her own family.105 Arguably the most striking compromise is that some wives found themselves paying their husband’s poll tax. In theory, only adult non-­Muslim men were supposed to pay this tax, which in theory was graded according to financial means but in practice was a crippling financial burden.106 In the petition that opened this chapter we saw how a husband unabashedly demanded that his poll tax be paid for him by his wife’s family.107 In a famous responsum of Maimonides, we hear of a husband who abandoned his wife and child for three years. When he returned, he was captured by the poll tax official and he did not have even half a dirham with which to pay. His brother (or father) paid it for him. Later the burden of his poll tax fell upon the wife and his mother. When his children grew up, he also did not pay their poll tax, and

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apparently the husband’s mother and later his wife provided their poll tax.108 In a petition from the middle of the thirteenth century, we hear of a man who had to pawn even his wife’s upper cloak to pay the poll tax.109 In the case mentioned above in which a wife agreed to a reduction of her delayed payment, gave her husband her dowry, and forwent her children’s maintenance, she also agreed to pay her older child’s poll tax for two years.110 We also find mothers paying (or promising to pay) their grown-­up sons’ poll tax.111 That women paid this tax, which was so closely associated with men, shows the extent of the monetary burden placed on women.

The Dynamics of Compromise: Three Case Studies So far we have surveyed briefly many cases that attest either to the pressures inflicted on wives or to the final outcome of divorce or marital disputes. In this section we delve into three cases in greater depth in order to observe the processes that led women to relinquish their monetary rights. Looking at a few cases in finer resolution reveals that such compromises were not merely the result of husbands and their families pressuring their wives. The dynamics of the legal process played a significant role in bringing about such concessions. The three case studies are intentionally chosen to reflect cases in which the final outcome was probably to the woman’s advantage, or in which the legal institution appear to have followed proper protocol. However, even in such cases we can see the dynamics that led (both here and in other cases) to the compromising of women’s monetary rights. Jekuthiel b. Moses was a representative of the merchants in Fustat, known from many Geniza documents in which he is also mentioned as “the physician.”112 It is very likely, as suggested by Goitein, that Jekuthiel was the grandson of the Spanish courtier of the same name immortalized in the dirges of the Spanish poet, Ibn Gabirol.113 Jekuthiel’s wife, Muna bt. Samuel, may not have had his pedigree but she still belonged to the Ben Naḥum family, one of the most powerful Jewish families in Alexandria.114 In addition to a long draft of their divorce proceedings, we know of another transaction involving Jekuthiel and Muna, recorded in two fragments, each from a different copy of the same legal procedure.115 In these fragments Jekuthiel acknowledged his responsibility for 75 dinars that Muna brought into the marriage (70 dinars “in doubling” from the dowry, a slave girl worth 20 dinars, and another 20 dinars in cash).116 As both fragments are incomplete,

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the context for this acknowledgment is uncertain and it is unclear whether it had anything to do with their subsequent divorce. On 10 November 1091, Muna and Jekuthiel were divorced before the Jewish court of Fustat. We are lucky to have a draft of the divorce proceedings that preserves a crucial detail that was to be deleted from the final document.117 It seems that in previous sessions the couple brought forth various claims and accusations against one another and it was decided that Muna would take an oath about what she was entitled to from her dowry and then would receive it from Jekuthiel. There is no mention of a delayed marriage payment, and it was probably decided that she was not entitled to one. In this decisive session, Muna brought forth cloths and household items and announced that this was all the property of her husband that remained in her possession, and she was willing to swear upon it.118 We are then told that the judge “warned her against taking the oath, intimidated her and spoke to her as the likes of her are spoken to,” yet Muna insisted upon taking the oath. In order to increase the gravity of taking the oath, a bier and ram horns were brought forth.119 At this moment Muna seems to have faltered. The draft records that she said “I cannot” (mā aqdur) and then insisted “I will swear” (anā aḥlif).120 These statements were then deleted with horizontal strokes (Figure 4), and instead we are told the righteous elders intervened and brokered a compromise without an oath: Muna would release Jekuthiel from all claims and he would write her a bill of divorce immediately. The mutual release was then performed, and the draft goes on to describe the process of divorce, concluding with Jekuthiel receiving the deed of the ketubba and tearing it thoroughly. It is difficult to tell exactly what happened at the moment Muna was supposed to take the oath. We are lucky to simply have the draft of the proceedings with the description of the dramatic buildup and evidence of the censoring of what happened from the final version. It appears that Muna intended to take the oath, then had second thoughts and perhaps overcame them, but by then the elders had intervened and brought about a compromise. This compromise was, in fact, a surrender of Muna’s monetary rights. In Goitein’s description of the case, he contends that Muna received 75 dinars, but this seems to be a mistake due to having an incomplete record, his attempt to dramatize the description, and his predilection to portray women as strong.121 As far as we can tell, Muna did not receive a delayed marriage payment and only managed to keep what she laid hands on from her dowry before this session.

Figure 4. Muna and Jekuthiel’s divorce settlement. The arrow indicates the line with the horizontal strokes deleting interesting detail from the record. ENA 4020.47. Courtesy of the Jewish Theological Seminary Library.

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The Jewish court in Fustat followed a clear protocol in this case. Taking an oath is supposed to be an awesome moment and the court is instructed to intimidate the taker of the oath.122 Our aim here, however, is not to evaluate the work of the court but to understand the dynamics that contributed to the compromising of women’s monetary rights. We do not know whether Muna hesitated in taking the oath because she knew she was about to lie, because she was not confident in her memory of what transpired with the dowry items in their years of marriage, or because she was simply terrified of the oath and its accompanying fanfare. Since Muna wanted Jekuthiel to give her the dowry items or their cash equivalent, the burden of taking the oath fell on her.123 Jekuthiel was an experienced merchant who was intimately familiar with the central section of the synagogue and was used to appearing before the court. For Muna, however, appearing in the male section of the synagogue, standing before the court, touching a Torah scroll, and then going through the ordeal of taking the sacred oath may have been another experience entirely. As far as we know, this was probably the only time in her life she was about to touch or be so near the sacred Torah scrolls.124 In other words, it seems that women were more vulnerable to the courtʼs intimidation and pressures, and the prospects of taking an oath may have been more daunting for them. Faced with the fearsome oath, the intimidation of the court, and the intervention of the elders, it is understandable that many women ended up compromising their monetary rights.125 Since requiring one’s wife to take an oath held the promise of being released from one’s financial requirements, we find men accusing their wives on various pretexts and demanding that they take an oath. In our second case, taken from Maimonides’s responsa, a man divorced his wife without paying her the delayed marriage payment or the rest of the dowry. When these were demanded from him, he claimed to possess nothing with which to pay these sums. His wife demanded that he swear the oath of destitution (Ar. yamīn al-­ʿadam).126 While his assets were being examined (to assess whether he was indeed destitute), the husband mounted a counteroffensive. He claimed that while they were married his wife had said that she performed the required immersion following her menstrual periods but now after the divorce it had become clear to him that she had had sex with him while impure, not having immersed at all. He supposedly made an inquiry into the matter and “it was not verified to him that she immersed.” He therefore demanded from his former wife: “Swear that you did not deceive me regarding the immersion and that since I have married you, you never had sex with me in a state of impurity,

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and then I will pay you what I owe you when my financial state improves, by installments according to my ability.” When the court wanted to write the remainder of the dowry as a debt upon the husband to be paid in installments when his financial situation improved, he demanded that his wife first swear that she had not seized the items of the dowry or hidden them (as Muna was asked to swear above). Exasperated, the judge asked him: “Should your wife swear and receive nothing? That is impossible!” The husband answered: “Should a debt be written upon me without an oath!?” The judged responded: “Once you pay the delayed marriage payment and your divorcée demands that you pay the installments of the dowry, then make her take the oath.” In his response, Maimonides approved this part of the judge’s approach.127 We see in this case the centrality of the oath to the negotiation of the financial aspects of divorce and how litigants could use it as a weapon. The context for the husband’s specific claim about his wife’s failure to immerse properly during the marriage is Maimonides’s 1176 enactment.128 Coming to Egypt from the west, Maimonides was apparently shocked to discover that Jewish women in Egypt purified themselves in ways that deviated from rabbinic law. His enactment stated that a woman, divorcée or widow, who did not immerse properly would lose her entire ketubba (early and late payments, including all the ketubba conditions). In fact, at divorce, the judge ought to actively inform the husband that if his wife had not immersed properly during their marriage, she would lose her ketubba.129 If the husband could claim that his wife did not immerse properly, even if he had no proof, the wife could not collect her ketubba without taking an oath while holding the Torah scroll. In this atmosphere, it is not surprising that men, like the husband in our case study, began to use immersion as another way to wriggle out of their monetary responsibilities.130 Notice that while the husband in our case demanded that his wife take an oath about both the dowry and the ketubba, the oath of destitution that the wife asked the husband to take did not hold any prospects for bettering her financial situation. In our last case, also from Maimonides’s responsa, we find similar dynamics involving a different tactic. A man who quarreled with the relatives of his upper-­class Alexandrian wife vowed that she would not be his wife unless she forwent thirty dinars from her delayed payment of one hundred dinars.131 The query frames this demand and the conflict in general as a dispute between the husband and his in-­laws: the demand was made “in order to defeat the relatives of his wife” and they—in turn—“saw it as a great affront to them and prevented her (from decreasing her delayed payment).” The court informed

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the husband that he could not force her to decrease her marriage payments. However, “Someone taught him (i.e., the husband) to request from her to move with him to Palestine. Since she would not agree to leave the people of her homeland, she would thus lose her delayed payment.” The basis for this tactic was the requirement that a wife should follow her husband (and vice versa) to Palestine (and to Jerusalem within Palestine) on the pain of justified divorce.132 When the husband followed this advice, the court declared that unless there was danger on the road or something that hindered her from traveling, the wife was obligated to follow him to Palestine or else she would be divorced without compensation. This ruling caused outrage in Alexandria, and people claimed: “From now on, anyone who hates his wife and wants to divorce her without giving her the ketubba will falsely accuse his wife in this way!” Maimonides’s answer and the public uproar probably prevented this scheme from working. In the first chapter, I argued that out of a desire not to alienate their clientele Jewish legal institutions accommodated litigants’ behavior that could seem disruptive, such as making rather baseless accusations in the hope that something would stick. In the three cases presented above, we see how this dynamic impinged on women’s monetary rights. “My wife already received some of the dowry items,” “my wife did not immerse properly,” “my wife is unwilling to join me in Palestine”—all were useful tactics with which husbands tried to shirk their monetary responsibilities. While the beginning of this chapter examined husbands (and their families) who physically or verbally assaulted their wives in the hope that they could ransom themselves free of marriage, these means to the same end employed different aspects of the legal system: the awe-­inspiring oath, the peace-­brokering role of the elders, Maimonides’s immersion enactment, and the rules about spousal relocation to Palestine. Even when these attempts were unsuccessful, their use attests to the general and continuous assaults on women’s monetary rights. Significantly, we do not find equivalent tactics available to women. We have seen that the wife’s demand that her husband swear the oath of destitution did not hold the promise of bringing about an increase in her husbandʼs debt to her.133 More generally, Jewish law provides the infrastructure for rebellious husbands in which a woman’s ketubba is increased as long as the husband continues in his obstinacy. While there are plenty of examples in the Geniza of husbands who could have been labeled as rebellious, there is no evidence in the historical Geniza of a husband accused of being rebellious or of Jewish courts increasing women’s ketubba in a such a way.134

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Conclusion The married lives of medieval Jewish women as they are glimpsed in the Geniza and contemporary responsa were strewn with compromises. The sums and conditions promised in the marriage agreement were more like starting points of negotiation than securely held rights. Rather than “divorce seeking,” Women appear to have usually desired to remain married even if it meant compromising their monetary rights. Some compromises took place during the marriage: in such cases women reduced their delayed marriage payment, removed the lien of their dowries over their husband’s property, or simply gave their husbands items of their dowry. Other compromises took place at the termination of marriage, when the chances of divorced women or widows receiving their dowry and the promised delayed marriage payment could be quite slim.135 To the different topics explored in this chapter, others could be added. The difficulties widows faced when collecting their delayed marriage payments or their dowry exhibit striking parallels to the plight of divorcées.136 The threat to women’s monetary rights due to the ubiquitous reality of absent husbands was referred to briefly but could easily be expanded to a whole chapter. There were also many other ways in which women were asked to compromise their monetary rights on various occasions.137 As Goitein observed, “The financial arrangements at a divorce were of the widest possible variety.”138 However, a wide variety does not preclude the existence of patterns. The central argument of this chapter is one of connectivity. While some of the topics examined here have been studied or mentioned previously, adopting a broad perspective brings the strands together to reveal a general dynamic of compromising women’s monetary rights. At the same time, an awareness of the broader context changes how we understand the specific topics and cases. We have seen how situations in which a husband pressures his wife to ransom herself changes our understanding of the ransom divorce. The way women relinquished their monetary rights during marriage must be viewed in connection with similar releases at divorce. The fact that husbands occasionally seized items of the dowry without permission and sold them must affect the way we see women’s voluntary compromises during marriage. Rather than considering cases and even specific topics as isolated and deriving from specific circumstances, seeing the forest rather than the trees reveals that the compromising of women’s monetary rights was a central feature of Jewish womenʼs lives in medieval Egypt.

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These dynamics ought to be understood within three central contexts: poverty, the structural framework of Jewish marriages and the legal arena, and cultural expectations. Since each one of these contexts could easily accommodate a book-­length study, I here limit myself to a few suggestive remarks in lieu of an exhaustive discussion. Poverty

As argued in the Introduction, the Jews of Egypt were poorer than the prevalent focus on merchants and the middle class tends to depict. The most obvious reason wives did not receive their full monetary rights or were asked to relinquish some of them was that husbands simply could not live up to their commitments. Indeed, we find repeated references to poverty in husbandsʼ requests to take the oath of destitution or to pay the ketubba in installments.139 Partial payment of debts and payments in installments were the norm, yet, as shown above, women suffered more acutely from it. On a deeper level, medieval Islamic economy (certainly the economic sectors in which Egyptian Jews partook freely) was based on debt and credit. The dowry constituted the main property possessed by the young couple and consisted mostly of jewelry, items of clothing, household vessels, and real estate. In the context of “the perennial scarcity of specie,” the lure of using the items of the wife’s dowry must have been irresistible.140 As Goitein observed: “Large quantities of precious metals were thus taken out of circulation and hoarded in the form of jewelry representing savings made for the protection of the so-­ called weaker sex. Since textiles served widely as types of payment, this consideration to a certain degree also applied to them.”141 It seems reasonable to suppose that the availability of the dowry combined with economic pressures on husbands played a central role in the dynamics explored in this chapter. At the same time, many of the cases examined involved middle-­and upper-­class men who did have the means to pay their wives. Thus, poverty is an important explanation, but it cannot explain the phenomenon fully. The Structural Framework of Jewish Marriages and the Legal Arena

Some husbands were greedy. Others were short on cash. However, we should not lose sight of the structural framework that allowed and fostered the dynamics explored in this chapter. It is well known that the asymmetrical nature of divorce in Jewish law allows husbands to squeeze concessions from

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their wives in return for granting a divorce.142 This chapter has shown how the ransom divorce that allowed some women to initiate divorce proceedings against their husbands was more often used by husbands to pressure wives to compromise their monetary rights. Furthermore, I have argued that the dynamics at divorce were projected onto married life, as wives were pressured to make similar concessions during the marriage. Chapter 1 showed the centrality of compromise in the work of the Jewish courts and Chapter 2 argued that the courts tended to pressure women more in their attempts to reach a compromise. This chapter, in a sense, explores the logical consequences. Beyond these considerations, there are several other factors that curtailed womenʼs negotiating position vis-­à-­vis their husbands and the courts. First, the husband’s prerogative of divorce is not only exclusive but also binary, while the wife’s monetary rights are flexible because they involve sums of money in different categories. In other words, a husband either grants a divorce or he does not, while a wife may be pressured to concede some, most, or all of her monetary rights. Negotiation between a binary position and a position involving a continuous spectrum easily tilts in the favor of the binary position, as the husband can always raise another demand in return for his granting of a divorce. Second, despite popular perception, a Jewish husband does not own his wife. A more fitting model for the economic aspects of the marital relationship is that of “rent”: a husband pays a certain down payment, promises a larger sum in the event of the dissolution of the contract, and commits to maintaining his wife throughout the marriage period. In return, he gains exclusive sexual access to his wife and a variety of other services (household care and fruits of her wealth and labor).143 Even in this simple model, it is clear that during married life and divorce money mostly flows from the husband to the wife.144 Because money streams mostly in one direction, it is not surprising that any compromise will involve a reduction of womenʼs monetary rights. In other words, since in this patriarchal society women are, monetarily speaking, almost always on the receiving end, it is their monetary rights that are repeatedly compromised. Third, the dynamics of litigation involving the use of trial balloons and lengthy negotiations as explored in Chapter 1 favored men. Because women were usually on the receiving end of money, time worked against them, especially if they lacked their own funds or supportive male relatives.145 As we have seen, husbands could hurl a range of accusations against their wives (she already took some of the items of the dowry, she did not properly immerse, she refused him sex, she failed to perform her duties, etc.) either to delay the

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proceedings or to require the wife to take an oath. Even if the accusations were false, people were reluctant to go through the ordeal of taking a formal oath and the courts would try to pressure the wife to forgo some of her claims to avoid imposing it. In the meantime, a woman might not have any other means of support and would remain “chained” to her husband. As one woman reports: “Two years ago he promised me to pay me half a dirham per day; but he keeps saying: ʻWait a month or two until God will help and I shall pay you.ʼ But the two months have become two years.”146 It is not surprising that in such situations many women agreed to a compromise in order to alleviate their current condition (recall Jalīla’s case explored in the previous chapter). The accusations that women could hurl against men (my husband is violent, incompetent, fails to maintain me, etc.) could help bring about a divorce or convince the court that the husband ought to pay the delayed marriage payment but could not require him to take an oath or lead to an increase of the wife’s settlement. Finally, men also had more extralegal options (marrying a second wife, taking a concubine, running away temporarily or for good, expelling the wife from the house, beating her). The structural framework of Jewish marriages and the dynamics of the legal arena pushed women to make monetary compromise.147 Cultural Expectations

The compromising of women’s monetary rights had important cultural dimensions. As explained in Chapter 1, Jewish courts preferred to resolve disputes, especially marital ones, through mediated compromise. Mediation is often lauded as superior to adjudication because it emphasizes cooperation rather than conflict, has a greater chance of being adhered to, and fosters creative rethinking of disputes, moving away from zero-­sum games into “enlarging the pie.”148 Feminist scholars, however, have long argued that mediation tends to compromise women, especially in divorce disputes, because it reflects the existing social power imbalance and gendered prejudices, shows a preference for a consensual solution and hostility toward blaming and displaying emotions, and often refuses to consider the past in its attempt to think about the future.149 The evidence in the two previous chapters for the social embeddedness of legal institutions and the way they tended to place more pressure on women to compromise certainly aligns with the feminist critique of mediation. Moreover, several cultural ideas played a role in compromising ­women’s monetary rights. Well-­known rabbinic exempla, Judeo-­Arabic tales, and con-

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temporary marriage advice for women not only all promote an ideal of a self-­ sacrificing wife but also point to monetary sacrifice as characteristic of the ideal wife.150 It is not difficult to see how such gendered expectations could lead women to make monetary concessions during marriage. Even at divorce it is likely that such normative ideas played a role as it is hard to place strict boundaries on cultural expectations.151 Indeed, a husband who successfully pressured his wife to make monetary concessions during marriage might also expect her to make similar compromises at divorce. Furthermore, we saw in the previous chapter that women who refused the overtures of the court to compromise were labeled stubborn and troublesome. This probably damaged their chances to be remarried, so we can see why women would need to compromise even at the termination of marriage. While patriarchal systems often try to “protect” women, we can occasionally detect how it was easier to place the burden of compromise on women’s monetary rights. More than merely noting that the burden of compromise falls on women, it is instructive to see how it is explained. A good example is Maimonides’s justification for preferring a creditor’s claim over a divorced woman’s claim: “If (the husband) has only land that is insufficient for the claim of both, and neither claim has precedence otherwise, the land is given to the creditor. If something remains for the wife she takes it, but if not, she is repelled by (the right of ) the creditor. For the creditor lost and spent of his wealth and the wife lacks nothing. For a woman wants to marry more than a man wants to marry.”152 Two explanations are given. The logic behind the second explanation is that if creditors could not collect their debts, they would not be willing to lend money and the economy would come to a standstill.153 Such fear does not apply to women, because women desire to marry so much that even if their claim to the ketubba were weakened, they would still want to be married.154 The cultural expectation that women want to marry more than men leads to a devaluation of their monetary rights. The first explanation, that the claim of the creditor has precedence because he actually lost money while the wife lacks nothing, also devalues women’s monetary rights.155 It gives precedence to the creditor’s “real” loss while overlooking just how much a woman might have lost in the marriage market in terms of her age, beauty, and health due to the ravages of time and the continuous labor she performed during the marriage. It also disregards how much a divorced woman or a widow might need the ketubba money as her insurance policy after the marriage. We have seen this attitude expressed bluntly in the case that opened the Introduction, when the husband demanded

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that his wife accept a divorce without the due monetary compensation, saying, “Do what will release me and not hurt you.” The ketubba is part of the marital arrangement in which the husband gains exclusive sexual access and the labor of the wife (both domestic labor and earning labor) in return for maintenance and the ketubba. Claiming at divorce or widowhood that the wife lost nothing goes against the deal. What is important here is not the ruling for the specific rare case in which the claims of the wife and creditor are otherwise equal but the cultural values that are used to explain the ruling. Indeed, we can detect further traces of this devaluation of women’s monetary rights in other rulings by Maimonides.156 Finally, the compromising of women’s monetary rights alters our understating of medieval Jewish marriage as an institution. “Jewish Marriage 101: In Lieu of a Glossary” earlier in this book presents the monetary framework of marriage as a set of mutual transactions and obligations as envisioned by rabbinic law. This framework fits into what Deniz Kandiyoti has famously called the “patriarchal bargain”: a husband gains full sexual access (with the resulting progeny), household services, and the fruits of the wife’s labor in return for maintenance, protection, sexual rights, and a sum of money at the dissolution of the marriage. In a more general formulation, women are accorded a secondary and dependent status in return for being protected and cared for by men.157 However, as with many social contract theories, it is important to appreciate the limits of the model. First, women and men (and modern citizens) do not really strike the bargain; they are presented with the already established order and they can hardly avoid participating in it. Second, this chapter shows that the bargain/contract was often violated and women frequently could not claim the rights promised to them. For example, if a husband did not pay maintenance or stayed away from the home, “activating” the bargain—that is, punishing him or getting a divorce—was a difficult path that often involved further relinquishing of oneʼs rights. Marriage can be conceived as a contract or a bargain, but it was full of holes through which many women fell.158 Beyond the realization that practice differed from the law, or that the patriarchal bargain was often unkept, I think the systematic encroachment on women’s monetary rights suggests a widespread different understanding of the financial arrangement of marriage. In other words, it is not simply that practice was different than the law but that there was a different popular understanding of marital monetary arrangements. Goitein was thinking along the same lines when he wrote: “I feel that many actual or alleged encroachments on

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the rights of the other spouse had their roots not only in outright greed or dire circumstances, but also in misunderstanding of the legal situation. A full elaboration of this point is, however, beyond the scope of this book.”159 I do not find “misunderstanding” (or ignorance) of the law to be a useful analytical tool. There may have been misunderstandings of the legal situation, but conceptions of property ought to be studied for what they are, not for what they are not. The problem is that our sources are usually either women’s petitions or legal records and it is hard to recover how husbands understood what they were doing. It seems that many husbands considered their wives’ dowry as their own property and the meʾuḥar as a mere payment for initiating divorce rather than as a debt owed to the wife, which is essential to the constitution of the marriage (recall that one is not allowed to leave his wife without a ketubba for even a single hour).160 Part of the reason for such a conception may lie in the fact that humans have an extraordinary talent for self-­justification.161 Personal need has a way of transforming in people’s minds into personal right; as a contemporary adage put it, “Needs have their own law.”162

* * * In this chapter we saw couples (and their families) clashing over money. While the mutual monetary obligations of marriage were supposed to bring the spouses together and create a new partnership, very often they pitted one spouse against the other. While this chapter and the last explored the pressures inflicted on women at court and at the home and their common consequences, women had a range of resources with which to resist such pressures and protect their monetary rights. As Leslie Peirce aptly put it: “Women had to fight harder to claim their rights. But challenges produced strategies.”163 The exploration of women’s resources and tactics is carried out in the next chapter.

Chapter 4

The Ties That Bind Kinship Support and Communal Participation

Sitt al-­Qawm bt. Ḥalfon al-­Tarābulusī married Mevorakh ha-­Melammed b. Saʿadya in Alexandria a little before 1190. From the monetary arrangements of their marriage we can deduce that they belonged to the Jewish middle class. Soon after their marriage, Sitt al-­Qawm and Mevorakh agreed to sell part of Sitt al-­Qawm’s dowry and with the proceeds bought half of a ruined house and did some renovations on it. Sitt al-­Qawm also spent some of the proceeds on herself and the rest of the dowry was sold for 19 dinars. When she asked Mevorakh for these 19 dinars, he refused to give them to her, telling her that she had already received all her dowry and ought to release him from them. She proceeded to do so in a validated legal document stating that he only owed her the delayed marriage payment and their share of half the house that was bought with the money from her dowry. All this happened apparently within the first year of marriage. Mevorakh then seems to have used the 19 dinars to buy another quarter of the house, and later sold an eighth of the house (i.e., half of his quarter) to Ḥalfon al-­Tarābulusī, Sitt al-­Qawm’s father.1 Then the couple fought, and Sitt al-­Qawm appointed Ḥalfon as her representative for the litigation in court. Ḥalfon demanded the eighth of the house remaining in Mevorakh’s hand, claiming that it had been bought with the proceeds of his daughter’s dowry. Mevorakh presented the legal document in which Sitt al-­Qawm released him from the debt to her dowry. The local Alexandrian judge declared that the deed was properly executed but that the release was invalid because Sitt al-­Qawm was legally incompetent (saf īha, literally “a fool, a spendthrift”), “for she who gives her dowry to her husband in her first year (of marriage) is a fool and no contract that she makes is valid.”2

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Furthermore, someone connected with the court, perhaps the judge himself, tore the deed without Mevorakh’s permission or knowledge.3 Mevorakh was “unable to find a stratagem (ḥīla) against the solidarity (ʿaṣabiyya, i.e., of Ḥalfon and the judge) against him so he sought to flee from them.” One step ahead, Ḥalfon sent auxiliary policemen (raqqāṣīn) to the city gates, who caught Mevorakh as he was leaving town with saddle sacks carrying his books and clothes and brought him to the Jewish court. Exasperated, Mevorakh vowed that Sitt al-­Qawm would not be his wife.4 Accordingly, the court instructed Mevorakh to divorce his wife and provide her with her delayed marriage payment and dowry. Like many of the husbands mentioned in the previous chapter, Mevorakh requested to pay in installments, but the court refused to allow this. Probably fearing that she would become a grass widow, Sitt al-­Qawm and her father gave their permission to write the dowry and the delayed marriage gift as a debt upon Mevorakh to be paid in installments. Mevorakh divorced Sitt al-­Qawm and later the court assessed his standing debt at the surprisingly large sum of 135 dinars. Mevorakh left the house stripped of his possessions “like a man leaving the bathhouse.” However, he did not cease trying to reopen the case, raising along the way the new issue of whether Sitt al-­Qawm had immersed properly after her menstruation while they were married. More significantly, Mevorakh managed to bring the matter before Maimonides several times, who chastised the local judge in Alexandria for his handling of the case. Without going into even more detail, it suffices for our purpose here to say that we do not know how the case ended.5 In several respects, the story of Sitt al-­Qawm sounds much like the cases explored in the previous chapter. The husband’s taking the proceeds of the dowry, his pressuring his wife to release him from the dowry’s debt, his attempt to pay his debts in installments, and even his claim after the divorce that during the marriage his wife had not immersed properly are all part of the by now familiar dynamics of compromising women’s monetary rights explored in the previous chapter. What is striking in this case is the husband’s utter failure; it was he who ended up divorcing his wife with full compensation and leaving their home stripped of all his possessions. His attempt to flee Alexandria was cunningly thwarted, and the query describes his miserable state after the divorce as being “chased away and escaping from his family and hometown.” Most significantly, in previous chapters we saw judges pressuring women to compromise, even in cases where Jewish law did not require them to do so. Yet in this case, the local judge went out of his way to help

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Sitt al-­Qawm, clearly deviating from Jewish law, arguing that her release was invalid because a wife who releases her husband in her first year of marriage lacks proper judgment.6 It is not difficult to point to the factor that made this case different from the many cases examined in the previous chapter: the involvement of Ḥalfon al-­Tarābulusī. It was his “solidarity” (ʿaṣabiyya) with the judge that led him to declare the deed of release invalid and have it torn.7 He was also the one with the prescience and knowhow to send the auxiliary policemen who captured Mevorakh as he was trying to run away. Probably a middle-­class merchant of maghribī origin, Ḥalfon had the connections with both Jewish and municipal institutions that protected his daughter from her husband’s textbook tactics and the cunning to squarely defeat him in court and outside of it. As we saw in the marital disputes between Ṣedaqa and Sitt al-­Kull and Shabbat and the daughter of Surūr b. Ḥayyim of the Ben Sabra family discussed in Chapter 1, having an involved and well-­connected male relative was essential for the protection of a wife in the Jewish legal arena.8 What makes Sitt al-­Qawm’s case particularly significant, and the reason why it opens this chapter, is that it destabilizes our understanding of ­women’s power and success. As has been mentioned in previous chapters, Goitein tended to find in Geniza records “strong women.”9 However, can we label Sitt al-­Qawm as strong, powerful, or successful? On the one hand, hers is arguably the most striking example of a victory for the side of the bride in a marital dispute among the Jews of medieval Egypt. On the other hand, the cancellation of her dowry relinquishment came at the price of being declared legally incompetent; what type of victory is that? Furthermore, the only active part she played throughout the conflict seems to have been nominating her father as her representative and she was not even present at the deliberations in court.10 It is true that “the paradoxical achievement of power through its renunciation” has long been recognized as characteristic of women in medieval Europe.11 However, in this case it is not clear that Sitt al-­Qawm achieved any sort of power at all. We do not know what the consequences were for her of being declared legally incompetent: Was she prevented from further monetary transactions? Did this status come with an expiration date? Would it have consequences for her chances of remarriage?12 Furthermore, it is difficult to decide whether Sitt al-­Qawm can be described as successful. Her father certainly succeeded in humiliating and financially squeezing his son-­in-­law, but this victory not only may have been transient (Maimonides’s ruling may have overturned everything) but also may not have been what Sitt al-­Qawm

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wanted. Presumably she wanted the 19 dinars, but we do not know if she wanted her husband’s resounding defeat and humiliation, which led to her subsequent divorce. Without knowing what she wanted it is impossible to crown her with success.13 This chapter examines the arsenal of tactics available to women to resist the pressures inflicted on them in marital disputes. Women could employ some of the tactics used by men that were surveyed in Chapter 1, such as spreading rumors or changing legal venues. However, this chapter focuses on the several tactics that, while not being unique to women, are used disproportionally by women or worked differently for women. Originally, I planned to structure the chapter by moving from the tactics of the most powerful or successful women to those of the weakest or least successful. However, I soon encountered insurmountable problems connected to assessing power and success, as demonstrated in the case above. Different tactics are used to achieve different goals, and it is impossible to label one as more effective than another. Instead, after I reflected on the variety of tactics and the situations that occasioned them, a different logic of organizing the material emerged. The two key factors running through the variety of women’s tactics are whether a woman has supportive male relatives and to what extent she or her relatives worked through the communal legal institutions or in opposition to them. The chapter begins, therefore, with cases of women like Sitt al-­Qawm who had supportive and effective relatives who worked through the Jewish legal institutions (“The Power of Women Through the Family”). In order to get the maximum benefit of these relationships, some women left their domicile and moved in with their relatives, a tactic that is examined in the next section (“Leaving the Domicile”). Support could not always be taken for granted, and the following section (“Recruiting Support: Letters to Relatives”) explores how women tried to convince their relatives to help them in private letters. Women who lacked relatives, or claimed to lack them, turned either to the Jewish community at large or to its leaders and requested assistance in petitions. The next section (“Recruiting Support: Petitions to Communal Leaders”) examines the claims made in such petitions. The next section (“Going Beyond the Community”) explores cases in which women and their relatives went beyond communal institutions and turned to Muslim legal venues. In this way, the structure of the chapter reflects its main argument: women’s key resources in disputes were their kinship ties. These relations, or the lack of them, played a central role in deciding whether to work through Jewish communal institutions or go beyond them. Marital

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disputes were conducted along two closely related axes of kinship support and communal participation. This argument takes up the broader question about the social and cultural embeddedness of the Jewish legal arena advanced in Chapter 1 and asks how women operated in the legal arena with the specific resources at their disposal.14 Jewish women in medieval Egypt certainly were engaged in economic production, and some had control over substantial property, but their financial resources and activities were overall much more limited than men’s and, as explored in the previous chapter, were constantly under threat.15 In terms of cultural resources, some women had a basic education and/or vocational training.16 Some were secluded at home and were considered modest and pious.17 Women gave personal charity, contributed to communal welfare, and went on pilgrimages.18 Women’s names typically conveyed a message of mastery (“lady of men,” “lady of the merchants,” “lady of the house,” etc.).19 In letters and elegies we often encounter women praised for their modesty, lineage, charity, righteousness, and education.20 In fact, the Geniza preserved a number of letters requesting favors addressed to women, one of the hallmarks of prestige and power among Jews of the medieval Islamic world.21 However, as the cases explored below (and in fact all the documents explored in this book) demonstrate, when a marital dispute flared up these cultural resources played little to no role. Instead, a woman’s network of effective kinship relationships proved pivotal to the dynamics and outcome of the dispute. While women’s social ties played a crucial role in the legal arena, it is important to recognize that women’s social networks were fundamentally limited. Usually, women did not have the opportunities that men had in the study hall, the market, and the synagogue to develop beneficial social relations with men beyond the ties of blood and marriage.22 Occasionally we come across evidence of women who were able to retain a connection with an institution even after the death of the male relative who originally formed the link to that institution, but these cases are the exceptions that prove the dependency of women on male relatives for forming and maintaining these links.23 As attested in numerous Geniza letters, women also had social ties with other women, but we rarely see these relationships coming into play in legal disputes.24 In other words, not all social ties are convertible to influence and clout.25 Indeed, as we shall see below, recruiting and mobilizing social ties effectively was never a given in a social economy where resources were limited. There were usually many needy relations, and loyalties often were in conflict. The logic that runs through the following spectrum of women’s

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tactics results from the heightened importance of social ties to the dynamics of the Jewish legal arena and the limited and constrained nature of such ties for women. In a recent landmark study, Eve Krakowski stresses the importance of kinship ties for individual Egyptian Jews. Rather than thinking about the family as a given stable structure, she views kinship as dynamic relationships that “needed tending to bear social meanings.”26 This chapter builds on her argument and explores in detail how women appealed to their relatives for support and the consequences and pitfalls of such efforts. The result, as further elaborated in the conclusion, is not only a deeper understanding of ­women’s predicament and possibilities for action but also a different understanding of the Jewish family and its relation to the Jewish community. As Krakowski argues, seeing kinship ties as dynamic and contingent highlights the inherent instability of Jewish family life in medieval Egypt, especially for women. The cases explored in this chapter show how women needed to foster new relationships as their lives progressed. Changing circumstances pitted them potentially not only against their husbands and in-­laws but also against their own families. At the same time, we see that family relations often assisted women outside of the Jewish community and even in opposition to it. While the family is often seen as the basic building block of the Jewish community, a man could find himself torn between his commitment to his relatives and his membership in the Jewish community. More than any other chapter in this book, this one focuses on a few specific cases. This is not due to a lack of evidence (in fact, many of the cases explored in other chapters could have easily been used here as well). Instead, I decided to proceed in this way because focusing on the particularities of a few detailed cases allows us to see the mechanisms with which social ties operated and the effects of their absence in the legal arena in a way that cannot be achieved by looking at the forest of evidence.

The Power of Women Through the Family The story of Sitt al-­Qawm demonstrates the pivotal role a male relative could play when a woman attempted to resist the pressures imposed upon her in the legal arena.27 In order to see exactly how the presence of a male relative could change the deliberations in court, we turn to a rather detailed record of a divorce settlement.28 On 4 January 1095, Aryeh b. Judah and his father-­in-­law,

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Elʿazar ha-­Levi b. Solomon, came before the Jewish court in Fustat.29 Aryeh demanded that his wife, who remains unnamed throughout the record, return to him and come with him to live in Palermo. Elʿazar responded that his daughter would not move to Palermo, but if Aryeh settled in Cairo, she would join him there. He suggested this even though his daughter had already appointed him to receive the bill of divorce from her husband (which raises an interesting question about the negotiation leeway of agents in legal proceedings). The court asked Aryeh whether he would be willing to live with her in Cairo; he responded with binding oaths that he would do no such thing. Elʿazar asked the court to examine what would be required from his daughter so that she could be free from her husband. The court asked Elʿazar: “perhaps you could convince her (tusāhil ʿalayhā, lit. “make it easier for her”) to return with him to Palermo?” Elʿazar did not yield and said: “she would absolutely not agree to this! . . . let him write her a get and leave (to Palermo).” The court informed Elʿazar that if his daughter refused to leave with Aryeh to Palermo, she would be considered rebellious and would need to return the early marriage payment to Aryeh. Elʿazar apparently consented to this for what followed was a lengthy negotiation over the financial settlement. In the end, Aryeh gave Elʿazar the movables from the dowry, except for a pillow, two handkerchiefs, and a suit of undergarments that he claimed were with his wife. Elʿazar gave Aryeh 8⅓ dinars, two of which remained with a communal official to be handed to the wife if she would swear that she did not have the said movables. Finally, the desired get was written and the document was signed by the presiding judge and another member of the court.30 It is important to state from the start that, unlike the case of Sitt al-­ Qawm, this divorce settlement does not seem to favor the wife. The claim that a wife is considered rebellious if she refuses to go with her husband abroad ignores the basic rule that “(A husband) may not take out (his wife with him) from one town to another or from one city to another (in a different country).”31 It is true that it seems the couple previously lived in Palermo and it was during a visit to her parents in Fustat that the wife refused to go back with her husband to Palermo, but still this ruling against a local daughter in favor of a foreigner appears rather harsh.32 However, even in such a case that seems not to have favored the wife, we can detect ways in which nominating her father as a representative affected the legal procedure. The most noticeable moment is when the court sought to pressure the wife to concede to her husband’s demands, a move we saw repeatedly in Chapter 2. However, rather than applying the pressure directly, now they had to work through her

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father. Accordingly, the language is no longer the harsh “God commands you to do so and so” that we encountered in Chapter 2 but rather “perhaps you could convince her,” which echoes what we saw in that chapter where men are addressed “softly” and “gently.”33 The assertive response of the father: “Elʿazar ha-­Levi insisted about it and said ‘she would absolutely not agree to this!’”34 put an end to such pressure without him (or her) being castigated or denigrated, again, in sharp contrast to the cases examined in Chapter 2. On a deeper level, through Elʿazar his daughter remains a negotiating member of the Jewish community. Elʿazar speaks, makes suggestions to Aryeh, fends off the court’s suggestions, and engages in the financial haggling until a settlement is reached. Being able to do so is one of the higher forms of communal membership. To give a taste of such negotiation: the court asks Aryeh how much he gave Elʿazar as the early marriage payment for his daughter. Having to deal with an equal before the audience of the court, Aryeh declares, “I do not wish to wrong him, all I paid him as his daughter’s early marriage payment was 18 dinars.” Elʿazar responded: “he only paid me ten dinars. Let him take an oath that he gave me 18 dinars.”35 Elʿazar then raised the matter of the minimum marriage payment (called here ḥaqq al-­ betulim, “the payment of virginity”) and the movables recorded in the dowry. It is very hard to imagine a wife engaged by herself in these back-­and-­forth negotiations.36 As we saw in Chapters 1 and 3, financial settlements were often renegotiated at a future point, and remaining a negotiating member of the community meant that one would be able to participate in such dealings. This form of membership is arguably more important than the specific details of the final financial settlement. Even though the wife is legally considered rebellious, she is not described in a negative way like many of the women we encountered in Chapter 2. Working through her father, the wife is part of this membership, though a step removed.37

Leaving the Domicile An important aspect of Elʿazar’s daughter’s ability to enlist her father against her husband is the fact that she left Aryeh and was currently under Elʿazar’s care. Leaving the domicile and moving in with one’s relatives is a tactic in marital disputes that has a long history in different cultures, times, and geographic locations.38 The domicile is an obvious locus of marital politics; previous studies have explored the negotiation over choosing the domicile

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before marriage and its early stages.39 Here, I explore leaving it as a tactic of women in marital disputes.40 Before turning to explore several specific cases, it is useful to parse out what such a tactic achieved, its pitfalls, and how it related to similar social phenomena. First of all, leaving the domicile removed the wife from the sphere of physical violence and verbal abuse of the husband and his family, which were common features of marital disputes.41 Second, husbands and their families (particularly the husband’s parents) were often dependent on the household labor of the wife. By leaving the domicile, the wife put pressure on the husband to either find an alternative solution or recognize her worth and accommodate her demands.42 Third, by moving to the house of her male relatives, the wife forced her husband to negotiate with men who were often his equals and thus he lost the advantage of husbands’ expected authority over their wives.43 Fourth, this action moved the conflict from the domestic sphere elsewhere, thus declaring publicly the seriousness of the dispute and signaling the wife’s suffering to the husband, his family, the neighbors, the community, and also to her own family. “Opening” the dispute in this way is also what often brought it to our attention. Once the husband and wife were geographically separated, the negotiation could be achieved through legal proceedings or the exchange of letters, thus creating a written record of the dispute. At the same time, leaving one’s husband entailed several serious dangers. Most women were dependent on a man for economic security; leaving the home made them vulnerable. Also, a woman living alone could be suspected of illicit sexual activity, which is why we occasionally find women mentioning explicitly that someone else was living with them to signal their propriety.44 Deserting one’s husband and moving to live with one’s brother or father solved both problems.45 A more complex danger was the possibility of being labeled rebellious (Heb. moredet), as happened to Elʿazar’s daughter.46 A moredet was a woman who refused to have sex with her husband or, according to some views, refused to fulfill her household obligations. If she did not recant, she could be divorced without the payment of her ketubba and kept only the dowry. To avoid being labeled rebellious, women who left their husbands often insisted that they had been kicked out. As Sara Butler observed about runaway wives in medieval England, it is not always clear who left whom.47 This is not only a problem of the incomplete and vague record in the hands of medieval historians but an ambiguity in real life where the line between making one’s partner’s life impossible and the partner’s desertion was in the eye of the beholder. If the husband kicked out his wife, he would need to pay her the

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maintenance for that period. If the court decided that he ought to divorce her, he would also need to give her the delayed marriage payment. We therefore find couples and their families striving to control the narrative of who was at fault for the separation. In the case of Ṣedaqa the singer and Sitt al-­Kull explored in Chapter 1 we saw that Sitt al-­Kull’s father arranged for a legal document attesting to the exact date his daughter had been kicked out of the house in order to establish the extent of maintenance Ṣedaqa would have to pay.48 In the petition that opened Chapter 3, we saw a battered woman’s insistence “By the truth of the sharīʿa, it is he who told me ‘leave!’”49 We saw in that chapter that husbands often pressured their wives physically and emotionally to relinquish their monetary rights. Women thus faced a difficult choice: either to succumb to such pressures and lose their monetary rights or to resist by leaving the domicile and risk losing the monetary rights nonetheless. Finally, it is useful to compare the predicament of the deserting wife to the runaway husband, as the superficial similarity masks fundamental differences. Men’s ability to leave the domicile in marital disputes was facilitated by the much broader context of a cosmopolitan Islamic society in which men’s travel and absence from home were ubiquitous.50 Husbands often traveled away and came back only to depart again, frequently leaving and staying for unknown periods of time.51 Men traveled for many reasons: trade, learning, pilgrimage, work, and wanderlust; and so a family crisis was just one of many reasons why men left.52 Women, however, generally left their husbands only as a result of family troubles.53 This meant that leaving the home was easier for husbands; it was also not uncommon for them to disappear and never be heard from again—which never happened with wives. Similarly, we only find men threatening to leave the home and/or disappear.54 Thus, while both men and women left the domicile due to marital disputes, their ability to do so and the ways in which it played out were completely different. Many of these issues are on display in a remarkable letter in which a Maghribī Karaite husband implored his wife, Sitt al-­Sāda, to come back to him. Apparently, the bone of contention was the wife’s freedom of movement.55 Living in Cairo, the husband, Judah ha-­Maʿaravi, wanted to limit Sitt al-­Sāda’s ventures outside their house to the bathhouse and the Karaite prayer hall. His wife thought differently and moved to the house of her brother, Faḍl b. Khalaf, who was probably a physician in a different town. Judah wrote a letter to his brother-­in-­law imploring Sitt al-­Sāda to return. As often happens in Geniza letters, Judah returns again and again to the main points of his letter for emphasis (these repetitions are dropped in the translation):

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To his excellency, my lord, the illustrious elder, the accomplished head (physician), the erudite, capable, noble and efficient Faḍl b. Khalaf. . . . My wife has by now stayed with you for a long time. . . . If she intends to join me and be with me as before, being my wife under my care and command, have her come up to Cairo . . . and stay with her guardian56 and dear husband, the beloved of her heart, and be with him as the pious and chaste men of Israel are with their wives. She will be reserved, going out little, except for the prayer hall of the Karaites and to the bath house, but stay in the house of her husband. He will be with her as God, may He be praised, has ordained . . . with affection, good will, love and generosity. . . . I shall do her no wrong and not rob her of her (a list of items ensues) . . . If she returns to me, I shall be with her better than I was before. I shall serve, obey, honor, respect, and treat her with deference. I shall be her slave and she the mistress, the queen, and I her slave, her freedman. This is my duty. So have mercy with me because of my bachelorhood, solitude, and my living in Cairo, for it is too difficult for me. . . . If she does not come, have her set me free whereupon I shall immediately set out for the countryside and marry—then, she will blame me, but I cannot be accused by her. I am innocent. Leading the life of a bachelor in Cairo is extremely difficult for the unblemished and chaste persons. If she does not come, I shall leave the city for the countryside. There are many girls available there and I shall marry one of the finest, a girl or a widow. . . . By the Torah, the Religion, and the Oral Tradition,57 do not deprive me of my wife, the lifeblood of my heart, my beloved.58 Sitt al-­Sāda left Judah and had been staying with her brother “for a long time.” Doing so, she placed the ball in her husband’s court. If things were to change, he would need to make her an acceptable offer. At the same time, her move forced him to negotiate with her through her brother, to whom indeed the letter is addressed. The extremely polite opening of the letter reflects that Judah was dealing with at least an equal, and it is quite clear he would never

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have addressed Sitt al-­Sāda in this way orally or in writing.59 As a result, Judah’s letter is a masterful mixture of pleading his wife to return while standing his ground on what mattered most to him: control over his wife’s freedom of movement. In what we would today call passive-­aggressiveness, he balances the assertion of his patriarchal control over her movements with declarations of his subordination (“I shall be her slave and she the mistress, the queen”)60 and weakness (“So have mercy with me because of my bachelorhood, solitude, and my living in Cairo, for it is too difficult for me”). In a similar fashion, he declares his love and affection profusely while mentioning that that he will have no trouble finding a replacement for her among the women of the countryside.61 Judah also makes a casual reference (in a part of the letter not quoted above) to the fact that he has “already obtained a responsum regarding her (monetary) rights.” In other words, although he is imploring his wife to return, he has already made a legal move in the battle for divorce. More than is possible in legal documents or formal petitions, the medium of letters accommodated complex negotiations in which writers made demands, issued threats, performed damage control by declaring their affection, and raised legal options and calculations while making sure to remain in a negotiation position by never burning bridges.62 The dispute is played simultaneously on several fronts: in the letter, in the legal arena, and in leaving and returning to the home; through affection, submission, promises, threats, and feigning of weakness. Judah’s letter displays some of the other advantages and disadvantages of desertion mentioned above. Leaving the husband was a way for a wife to force him to realize his dependence upon her and indeed, Judah declares that “leading the life of a bachelor in Cairo is extremely difficult for the unblemished and chaste persons.” This statement, of course, tries to turn his disadvantage into an advantage by portraying himself as chaste and unblemished and by hinting that he has other sexual options. This hint is then followed by the statement that if she would “set him free” (read: relinquish her ketubba), he would marry a girl from the countryside. No wife would ever make such a statement; this reflects the asymmetry between husbands’ and wives’ abilities and prospects to travel away and remarry. Indeed, a husband who requested that his wife’s delayed marriage payment be placed on him in installments threatens to disappear to a distant land never to be seen again and leave his wife a grass widow “chained” for life.63 When Judah declares that he had already obtained a legal ruling about his wife’s monetary rights while imploring his wife to return to him he was

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engaged in “bargaining in the shadow of the law.” This is a phrase used by sociologists to capture the types of negotiations that take place outside legal institutions but are influenced by litigants’ expectations about what they may obtain in those institutions.64 We see this interweaving of legal and extralegal moves also in a letter from Isaac b. ʿImrān, apparently a communal official of a small town, to Eli ha-­Kohen b. Yaḥyā, a well-­known communal official in Fustat active between 1057 and 1107. The letter deals with the marital dispute between a certain Ephraim and his wife. The unnamed wife was unhappy living in the countryside and wanted to live in Fustat, where she probably had relatives. After some litigation in the medium-­sized delta town of al-­Maḥalla the wife left the husband and traveled to Fustat, where, apparently, she or her male relatives approached Eli ha-­Kohen. The latter wrote a letter to Isaac about the matter and what we have is Isaac’s reply to the inquiry from the capital: Regarding what you mentioned in the matter of Ephraim: I sent for him and he came to me. I showed him the letter of my lord, may God protect you. I saw that he desires his wife and the reason for his neglecting her is only because she left him and went up to Fustat against his command. (This was) after she and he sought judgment in al-­Maḥalla from Joseph [the Ḥave]r.65 It became clear to him (i.e., to Joseph) that she transgressed [. . . .] When she saw that the ruling would be against her, she went up to Fustat against his (i.e., her husbandʼs) command. . . . He is a poor man. He is not able to reside in Fustat. If she comes to him, he will have nothing dearer than her. If she does not desire to live in the countryside (rīf), he will put her up [in] Damietta. If she desires him, she should tell him to send to her a messenger who would bring her to him according to where she chooses that he put her up. For he cannot leave the t[ow]n [becau]se of the governmentʼs tax collectors (ḍummān al-­sulṭān) and he cannot leave.66 If she chooses him (also possible: it) he will have nothing dearer than her. If she does not want him (also possible: it), let her inform him so he will send her bill of divorce to her. This will be her choice and not his.67 The dispute over the choice of domicile first reached the local court in al-­ Maḥalla. According to the letter, when the wife felt she was about to lose the case, she simply left town and headed to Fustat. This move, however, did not bring the negotiations to an end. Instead, it allowed her to continue them

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from a more favorable position. By leaving town and securing the involvement of the important parnas in the capital, the wife recovered from the setbacks suffered at the al-­Maḥalla court. Not unlike the Karaite husband from the previous example, it was now up to Ephraim to declare his affection (“he will have nothing dearer than her”). He also needed to show that he was willing to accommodate her wishes, at least to some degree, and thus suggested she return to him and he would put her up in Damietta. The negotiations that began at the court in al-­Maḥalla continued after the wife’s flight, through an epistolary exchange. As in the previous example, the negotiations revolved around establishing who was at fault for the failure to find a compromise. Beyond declaring his desire for his wife’s return and affection toward her, the husband employed the rhetoric of powerlessness so common in Geniza letters: he is portrayed as poor, unable to afford life in the capital, and shackled to his locality by fear of tax collectors. The wife, however, is presented as active and in control: she knew where the legal proceedings were headed, left town against his command, and somehow secured the involvement of the well-­known parnas. This performance of passivity while portraying the wife as active and in control serves to establish the narrative that the impending failure at negotiations is due to “her choice and not his.” By laying the blame at the wife’s feet the husband will be released from financial responsibility at divorce. We see how the legal categories continue to inform the negotiations that take place outside of court. Wives’ limited desertion (limited in the sense that they never ran off and disappeared) offered them substantial advantages. At the same time, this sense of women’s empowerment and strength was also a trope used by husbands to pass the blame onto their wives. Strength and success were thus turned into liabilities. Since relatives’ support was crucial for a wife involved in a marital dispute, it was important not to lose this support. This is especially true for women who left their husbands and moved to live with their relatives. The last example for this section shows how supportive kin can lose their patience with a wife who refuses to live with her husband. A certain Abū al-­Faraj wrote a letter to his niece urging her to return to her husband. She was currently living with her father and her husband lived elsewhere. It is not clear who left whom, but it is obvious that she refused to return to her husband. Abū al-­Faraj appears to have been responsible for the original match and was currently somewhat regretful of his previous involvement. His letter is quite repetitive and select passages will suffice to demonstrate its tone:

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And now, there is no excuse to one warned, and I have warned you several times. This warning is the last one. If you intended to leave (to join your husband), get up and leave with your father. He (i.e., her father) agreed to it and no reprimand or criticism remains upon him, but upon you. . . . You realize that the matter is not in my hands, nor in the hand of another, but due to God, the exalted, and what He brought about, how excellent is God’s judgement! I have grown tired of sending letters and burdening people with the matter of your leaving and your infraction due to your distress, and the staying of the child in the country. . . . Your father came and swore upon the holy law “I am not withholding her, for a wife has no one but her husband.” Know that if you would not leave, he would marry (another) or travel away for he has put his manliness aside for you and for kinship sake until now,68 but who can endure from his wife [such absence/behavior? . . .]69 What was considered the wife’s obstinance depleted the support she had been receiving from her father and uncle. Showing understanding toward the plight of her husband, Abū al-­Faraj urges his niece to join her husband.70 As seen above, the threat of the husband’s travel or additional marriage was serious, and with the support of her own side dwindling it is very likely she joined her husband. This letter shows that even when relatives were available their support could not be taken for granted. Wives occasionally found themselves negotiating on two fronts: with their husbands as well as with their families.71

Recruiting Support: Letters to Relatives If kinship support could not be taken for granted, women embroiled in marital disputes often had to actively recruit it. Kinship ties were usually developed in quotidian interactions of intimate domestic contact of the sort that do not leave a written record. Here we are concerned, however, not with the slow development of such ties but with the moment they are mobilized for specific actions.72 The problem is that when relatives were present locally, women’s overtures would not take a written form and are therefore invisible to us. Yet when relatives were further away their ability to assist was limited and women’s requests are usually confined to asking for financial support or asking relatives to come and take them away. For example, a daughter who

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moved to al-­Maḥalla to live with her husband wrote to her mother, who lived in Fustat but originally hailed from ʿIblin in Palestine, that she was “in hell” with her husband, who demanded that she go with him to Aleppo. She asked her mother to either come get her or appoint an agent to bring her so she would be “freed from the people of hell.”73 In other cases in which relatives are asked to either come and get women or arrange for their travel to them, we suspect that these women were widows who left their families to live with their husbands and now were lonely and in a foreign land.74 As was done above, reading one particularly rich document closely helps highlight the various ways a woman could pressure her relatives to help her. A domestic dispute in an intricately endogamous family from the second half of the eleventh century is bound to bring to the surface competing loyalties and obligations. Two sisters married two brothers who were also their paternal cousins. Then, the daughter of one of the sisters married the son of the other sister. The Geniza preserved a letter written by the daughter, called Umm Sitt al-­Nās, which indicates that she was already a mother, to her maternal uncle, Abū al-­Faḍl of the Ibn Sabra family. She writes that once she moved in with her husband’s family at the town of Dammūh the crisis erupted. It also did not help that apparently the writer’s mother gained a bad name for something, a fact which her sister (the writer’s mother in-­law) did not fail to use against her daughter-­in law (also her niece). Here is most of the letter: My lord, I am unable to describe to you how miserable I am. Even were I the daughter of a slave girl you would have protected me, for the two eyes of my mother. That enmity should have ended already. I have not left Dammūh by my choice. It was according to the “good will” of your sister (her mother-­in-­law and the sister of her mother). I had nothing to do with this. . . . Do not ask how he (her husband) treats me, I ask God that He reward him for this. First, we all moved into one house. Then my mother-­in-­law75 began. The least she did to me was isolate me from people by (spreading) enmity about the shameful things I did to her son.76 The least she said to me was: “Go away and become like your notorious mother.” You know the “noble” character of your paternal cousin (her father-­ in-­law). He suspected me with my elder cousin!77 . . . I cannot describe to you my state until God brings us together and I shall tell you what your sister has done to me this year, she and her son. You (pl.) know that I have no one in the world except

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God and you. Do not neglect me, for my disgrace obligates you. I have left the house, without even undergarments on me! I am staying in the house of a widow. I am afraid I am getting a grave palsy on my hands.78 I would like you to bestow charity on me by collecting for me undergarments, a mantle, and 20 dirhams with which I will travel to you. Do not let me down (sing.) for my disgrace stands before you (pl.). I have no one I can go to, neither paternal or maternal uncle. Answer this letter quickly. You are charitable to strangers, how far more to your own child?79 When reading such a dramatic letter, it is important to remember that women did not write letters for self-­expression but with specific goals. The most common goal was to make a request from the addressee. The basic step in making a request is establishing a need. For this reason, women’s letters very often contain heart-­wrenching depictions of their suffering. Like the women of the previous section, this writer left the domicile and wanted her uncle to take her in. For this to happen she needed to win him over. Thus, she harps on her miserable state while insisting that it was not her choice to leave and “I had nothing to do with this.” She also declares her propriety by mentioning she is staying in the house of a widow. Suffering was understood as creating obligation. However, this obligation could be quite general, as will be seen below when we turn to look at ­women’s petitions to communal officials or to the community at large. In order to give it focus and clinch the support of relatives, women needed to stress the special connection they had with the addressee. A shared relationship makes the obligation specific rather than general. As the woman puts it: “my disgrace obligates you,” “my disgrace stands before you.” It is not clear how close the writer was to her uncle as she uses rather common tropes to express her relationship with him. Found in almost every woman’s letter of request, but less common in men’s, is the statement: “I have no one in the world except God and you.”80 Another common trope is “You are charitable to strangers, how far more to your own child.”81 Egyptian Jewry had a well-­developed communal charity operation that supported the substantial number of poor in the community. Many of these poor were foreigners, so writers of request letters capitalize on this general aid to foreigners to claim that they are more deserving because they are relatives.82 Similarly, fund-­raising drives for captive Jews were common in medieval Egypt and were of great importance, so some women played on the same logic with statements such as “consider me

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a captive woman, redeem me.”83 The writer’s declaration that “even were I the daughter of a slave girl you would have protected me, for the two eyes of my mother” follows the same logic: you would have helped the daughter of a slave girl, yet I am not a daughter of a slave girl but the daughter of your own sister.84 It also stresses, of course, the uncle’s obligation to the writer due to her mother, his sister. The especially endogamous relationships in the family permitted the writer another, rather unique, strategy: she stressed not only her relationship to the recipient but also his connection to the perpetrators of her misery (“It was according to the ‘good will’ of your sister,” “You know the ‘noble’ character of your paternal cousin,” and “I shall tell you what your sister has done to me”). Making a request was like a spider attempting to catch prey: you spin as many strings as you can hoping some would stick.85 By happy circumstance, the Geniza preserved another letter from the same woman, making the same material request. This second letter is addressed to “my brother Abū ʿUmar” and generally follows the structure of the first letter. However, examining the corpus of documents surrounding the uncle we discover that he had two sons, named Abū ʿUmar and Abū Saʿīd.86 This suggests that this second letter was written to Abū al-­Faḍl’s son and explains why she uses “you” in the plural on several occasions in the first letter. While the second letter is incomplete, faded, and difficult to read (which is why the connection between them was not noticed previously), a comparison between the two still yields a couple of interesting insights. Gone are the references to people as related to the addressee (“your sister,” “your paternal cousin”) found in the first letter. Apparently, while the uncle could be obligated by the behavior of his sister and cousin, his son (the writer’s maternal cousin) could not be obligated by the behavior of his paternal aunt or paternal cousin once removed. Instead, Umm Sitt al-­Nās refers to him no less than four times as “O my brother” (yā akhī, written ‫)יאכי‬, a way of stressing the relationship found in many other women’s letters.87 In the same place where the letter to the uncle has “Were I the daughter of a slave girl you would have protected me, for the two eyes of my mother,” the letter to the cousin has “Were I not [. . .] protect me for the blood and milk that is between us.” While the fragmentary state of the sentence does not permit a full understanding, it is clear that Umm Sitt al-­Nās was stressing the special relationship she had with her cousin. Not only were they related by blood, but apparently the two were breastfed by the same woman and this created a bond of obligation upon her maternal cousin.88 We find similar ways of stressing the relationship with the addressee in many other women’s letters and when women’s statements are reported

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in men’s letters. These examples are not necessarily made in the context of marital disputes, which shows that the tactics explored here have a broader bearing on understanding how women maintained and employed their social networks. Some women stress the care they invested in the upbringing of the addressee. For example, one letter relates that the mother of the addressee is asking about him and telling him: “By your upbringing, my son, do not let me die while angry at you!” The mother wanted her son to come back home and used the obligation created by the care she had invested in his upbringing to pressure him to return.89 In a similar manner, a widow who entrusted her younger son, Abū Ṭayyib, to her older son urged him: “by the right I have over you and by what God decreed as my right over you, do not pain the heart of Abū Ṭayyib. Be as gentle as you can with him.”90 In a letter of a sister to her brother, she chides him and a certain Abū al-­Wafāʾ, probably her brother’s son, for not writing to her: “my heart pains me because Abū al-­Wafāʾ did not uphold (the obligation of his) upbringing. No letter was sent, neither from him, nor from you.”91 Probably after she was divorced or widowed, an originally Egyptian woman living in Byzantium begs one of her brothers to come and help her and daughter get back to Egypt. Using the topos of captivity mentioned above she writes: “Do you not see the men of the communities of Byzantium? When they are captured, their relatives go after them to redeem them. So, why none of you risks his life to come and take me back?” Just before the letter is torn, she stresses again their relationship: “For I have known you since you were young.”92 Other women referred to the material substances that constituted the bond of kinship, as in the reference to “the blood and milk that is between us” encountered above.93 Often, such statements take the form of oaths, such as “by your upbringing” (bi-­ḥaqq al-­tarbiya) quoted above. Such oaths are a common feature of Arabic speech to this day and are supposed to give weight and credence to what is being said.94 A mother writing to her absent son adjures him not to neglect his son: “By God and by the breasts that nursed you, do not forget your child, Sulaymān.”95 It seems that by stressing the care she had bestowed upon her son, she sought to compel him to care for his own son. A refugee displaced by the Seljuk invasion from Jerusalem to Tripoli (in modern-­day Lebanon) wrote to her in-­laws in Fustat about her difficult situation and commanded them: “Do not neglect me. Uphold the ties of family and blood!”96 While men also took oaths based on upbringing, family, blood, and even milk, they also based their oaths on social relationships like

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love, friendship, neighborliness, and what can be called social substances like wine, bread, and salt.97 The importance of establishing a family relationship with the addressee is most noticeable when these relationships were rather weak.98 In a petition to Samuel b. Ḥananya, the Head of the Jews in the years 1140–59, a poor widowed or divorced woman from a well-­known family requested his help in selling half of a house in her possession. At the end of the formal petition, a different hand added a further reason: “Your servant has a sacred claim of family (ḥurmat al-­ahaliyya) on your Honor, for your Honor’s father and my father are maternal cousins. Your honor confers kindness on foreigners, how much more so someone who is one of your servants and your family!” (ahlihā).99 That the woman had only a fleeting acquaintance with Samuel, if at all, is clear from the fact that the letter is a formal petition, the need to explain the exact family relationship, and the fact that the passage was added to the petition once it was already completed. In another letter, a lonely, foreign Alexandrian woman begged a communal official in Fustat to try to persuade the Head of the Jews to write to a Muslim judge about releasing her imprisoned son. She said that she had never written him a letter before “but when people informed me that you strive all the time for the needs of foreigners, how much more so when it is family! May God maintain you always in a position (of satisfying) the needs of relatives and foreigners.” At the end of the letter she asks him “to do with me as you see fit due to my foreignness, loneliness and because I am your relative.”100 In both examples, the attempt to make a claim based on a family relationship, even when such a claim was rather far-­fetched, shows how important it was to establish a personal relationship with the addressee. Women, who played a vital role in establishing and perpetuating kinship relations, were quick to employ them.

Recruiting Support: Petitions to Communal Leaders Women who did not have effective male relatives had to recruit support in another way.101 Such women arranged for more or less formal petitions to be written on their behalf either to communal leaders or to the Jewish community at large. Like letters to relatives, petitions base their request upon a need demonstrated through a reported miserable state.102 However, while depictions of difficult states in personal letters are often dramatic and stress the

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relationship with the addressee, in petitions the depiction tends to be more generic.103 The difficulties of the petitioner usually revolve around recognized categories of need. Both women and men claim to be poor, foreign, sick, naked, or hungry. There is some gender difference involved in other categories: usually only women base their claims upon having lost a spouse and only men base their requests upon being formerly wealthy but now driven to poverty.104 All of these categories are quite familiar from discussions of the care of the needy in Jewish formative texts, such as the Bible and the Talmuds. However, there is a rather common category of need in petitions that does not seem to have an obvious precedent in late antique Jewish sources. Petitioners are often described as “cut off ” (munqaṭiʿ/a).105 As this term is also common in Arabic papyri, it seems that its appearance in Jewish petitions ought to be attributed to the surrounding Islamicate culture. Another indication of its relative recentness is that it took scholars a while to come to a satisfactory understanding of what it means. Different scholars understood it as “unmarried,” “spatially secluded” for prayer or modesty, and “desolate,” that is, cut off from familial support or economic resources. A systematic study of Geniza letters, Judeo-­Arabic literature, and to a lesser extent Arabic papyri has led me to conclude that beyond the general meaning of poverty and miserableness, inqitāʿ and munqaṭiʿ also refer to a lack of effective family support.106 This claim of social isolation appears in letters of both men and women. However, it is more commonly encountered in women’s letters. I am aware of 22 letters that use the term munqaṭiʿa/inqitāʿ regarding women as opposed to 13 letters that use the equivalent terms for men.107 As men’s letters have survived in the Geniza in much greater numbers than women’s letters and many more of them have been studied and published, it is clear that the claim of social isolation figures much more prominently in women’s letters than in men’s. Furthermore, women make appeals based on social isolation through other motifs. We have already encountered the ubiquitous claim in women’s letters that “I have no one to turn to except God and you.” This claim is less frequent in men’s letters.108 Other women’s petitions express powerlessness and isolation in specifically gendered ways. Some women convey their desperation by writing that they “have no men.”109 A widow “weighted down by three orphans” addressed the Jewish community in a petition: “You show solidarity with men (rijāl) and those with power (qudra), I would like you to show solidarity (by giving) me something with which I will go to the family I have in Syrian.”110 The contrast with the solidarity of men is meant to highlight her own female helplessness.111 A similar claim is made in a petition

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of a lonely (waḥīda) widow to the Head of the Jews: “You, may God give you life, show sympathy with men, while I am a cut off woman.”112 Another widow writes: “Your lofty presence knows what hardship men endure these days. They cannot make ends meet. How then can those behind a veil who do not know their right from their left?”113 The widow of a well-­known mid-­ twelfth-­century judge, who was also the daughter of a late prominent government official, addressed the congregation of Fustat in Hebrew: “(I write to) your honor due to the pressing times and their vicissitudes (even) on the rich who know well in their wisdom how to manage their wealth so that it will not decrease and dwindle. How much more (difficult are these times) on she who is hidden in the belly of the earth and is dependent on all!”114 All this illustrates that while the claim of social isolation is not unique to women, in women’s letters it is more common, receives greater emphasis, and is explicitly associated with their gender. Through this claim, women turned their social disadvantage into a cultural asset. These examples mostly come from petitions asking for financial assistance. However, we see the same appeal in petitions asking for legal intervention in marital disputes. As was done above, we will look at one case in detail, rather than survey several examples superficially. The wife of Abū al-­Faraj the silk weaver arranged for a Judeo-­Arabic petition to be written on her behalf to the Head of the Jews, Samuel b. Ḥananya. In the petition, she complains to Samuel about two things. First, like the husbands determined to compromise women’s monetary rights we encountered in the previous chapter, her husband was refusing to pay her any sum of money above ten dinars (presumably the matter at hand was her divorce settlement). Second, he was engaged in a sexual relationship with a slave girl.115 When Samuel ordered that the slave girl be removed to a separate space, the husband simply moved her to the house of his sister and spent most of his time with her there, apparently lavishing a fair share of his wealth on her. Here, however, we are less concerned about the details and dynamics of the dispute and more about how the petition portrays the wife and appeals to Samuel. After several introductory lines of blessings, the exposition of her plight begins: I inform your Excellency, our lord, may you (rule) forever, that I am a woman cut off from support (marʾa munqaṭiʿa). I do not have (recourse) except to God’s gate and yours. I have fallen in with a man who is unashamed of the unseemly things spoken about him.116 My father does not enter my (house) for anything because

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of what happened to him.117 My brother is a young man, bashful and has no tongue.118 I have fallen, truthfully, into great distress.119 The wife bases her plea on the fact that she is a woman cut off from social support whose only recourse is to turn to Samuel. To make this claim she has to explain that while she has a father, he is of no help because the relationship between them broke down (we are not told why). She also has a young brother but, being bashful, he is of little support in the legal dispute. In fact, later in the petition the said brother was sent to receive some (probably dowry) items from the husband. We are then told that “the judge told (the brother): ‘give him until Sunday, that is best.’ Sunday came, and nothing was done in my case except postponements, and ‘go to the house of the judge.’ But nothing.120 (The judge) makes copious speeches to me, as if I was the one who did something forbidden!” If in the beginning of the chapter we saw how supportive male kin could tip the scales in favor of a wife, here we see how the lack of effective support was detrimental to a woman’s chances of success. With an ineffective male relative supporting her, she encountered only postponements and delays. Like many of the cases encountered in Chapter 2, we see judges making copious speeches to the wife rather than to the sinful husband. The woman concludes her petition by repeating the theme of having no supporter except God and Samuel and that attention should be given to the plight of the munqaṭiʿ: He has abandoned me and the young girl (her daughter) cast down. He pays us no attention whatsoever. He keeps the slave woman at his sister’s and maintains her as needed. My matter is not hidden from his Excellency, the elder Abū Isḥāq. (My husband) has found someone who supports him in what he says, while I have no supporter except God the exalted and you. May the Holy One, blessed be He, not lock your door in the face of any person without support (munqaṭiʿ), oppressed or seeking your help.121 The wife’s claim of lacking support receives an interesting twist from another Geniza document. A Judeo-­Arabic letter containing several features of the petition format deals with the same marital dispute and is also addressed to Samuel b. Ḥananya.122 This second document adds interesting details about the legal proceedings (which are not our concern here) and clearly supports the wife’s side of the story.123 A comparison between the wife’s petition and

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this letter shows that both were written in the same hand. So the man who wrote the wife’s petition, clearly a communal official, also interceded with Samuel on her behalf. The identity of this person is unknown, though it is possible to point to a couple of other petitions he wrote for needy people.124 The most likely candidate is “the elder Abū Isḥāq” who is mentioned in the wife’s petition as someone who knows her plight. The purpose of such references is to provide assurance that the information in the petition can be corroborated.125 The address of the woman’s petition describes her as living “near the elder Abū Isḥāq,” so it is clear he knew her well and perhaps it was he who wrote her petition and the additional letter. The irony, of course, is that while she was claiming that she was a woman lacking social support and had “no supporter except God the exalted and you,” she not only had a brother and a father but also was backed by a communal official who appealed to the Head of the Jews on her behalf. There are other cases in which a woman claims to be “alone” and then passes greetings from numerous people, in one case even from her husband and four children.126 The claim of being alone or “lacking support” is a rhetorical performance that can deviate quite a bit from reality. However, as was the case with the women in the previous section who stressed even weak connections to the addressee, the fact that women like the wife of Abū al-­Faraj or their scribes chose to employ the trope of lacking social support shows that it was considered effective. The claim of being “cut off ” illustrates that having or lacking social support was the axis around which marital disputes, and women’s predicament in general, revolved. By being able to use it as a recognized category of need in petitions to the community or its leaders, these women were able to remain within the communal fold.

Going Beyond the Community The most drastic step a woman could take in a legal dispute was to break away from the communal fold and bring the case before a Muslim legal venue. Geniza documents and contemporary responsa show that such action was widespread.127 The most common venue used by Jewish women and their supporters was Muslim courts with their qadis. There are also many references to women approaching (or threatening to approach) the sulṭān (or the Hebrew equivalent, shilton and malkhut)—a general term for government officials and institutions that seems to have included the process for redress of wrongs

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known as maẓālim.128 Far less common, but still very interesting, is the evidence for women submitting queries to Muslim jurisconsults (muftis).129 Jewish men also made widespread use of Muslim legal venues. However, turning to Muslim legal venues was gendered in several ways and functioned differently for women. To begin with, the number of cases of Jewish women using Muslim legal venues against Jewish men far outweighs the number of cases in which a man sued a woman in a Muslim court (the rate is 19:2).130 A similar rate of 19:4 is found in cases when a document was issued by a Muslim court (or there were plans to issue one) to protect the monetary rights of a Jewish woman against a Jewish man and vice versa.131 Furthermore, Jewish women used Muslim courts for different types of issues than did men, mostly related to inheritance, marriage, and divorce.132 Finally, women were held suspect of turning to Muslim legal venues more so than were men, and when women did turn to such venues, they were castigated more harshly than were men who did the same. This last difference can be explained by the combination of three factors. First, women’s use of Muslim legal venues was probably considered a widespread social evil that required special attention to combat it. Second, women broke the communal fold in cases of inheritance, marriage, and divorce, which were considered more essential to Jewish identity and autonomy than the commercial matters that Jewish men tended to bring before Muslim courts. Third, when Jewish women turned to Muslim venues they not only went beyond the communal fold but also defied male domination and thus met with greater ire.133 Some of the cases explored in previous chapters attest to these observations. In the case that opened Chapter 1, Rachel’s mother turned to a Muslim judge so that he would force the Jewish court to make a ruling on Rachel’s putative marriage to Simon.134 In the case that opened Chapter 2, we saw the former wife of Ṣāliḥ threatening to appeal to the government (sulṭān) as a way of resisting the pressures of the Jewish court that sided with her husband.135 In the same chapter Saʿīda bt. David was accused by the communal leadership of turning to Muslim courts in order to divorce her husband and obtain a favorable divorce settlement (later these accusations were shown to be problematic).136 Bārra fought with her brother, a cantor and occasional member of the court, over their father’s inheritance. She produced a Muslim legal document stating that her father had given her some real estate before he died, but her brother convinced the court that the document should not be accepted. Bārra then appealed to a Muslim court, though we do not know

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what happened there.137 The women in the last three cases were depicted in a strongly negative way because they went outside of communal institutions. What is clear even from these few examples and is particularly relevant for this chapter is that Jewish women turned to Muslim courts in cases that concerned the men closest to them: husbands and brothers.138 The cases in which a woman’s monetary rights were affirmed in Muslim legal documents also almost always reflect the attempt to protect these rights from brothers and husbands. In fact, in these cases what we often see is one set of close relatives protecting women’s monetary rights in Muslim legal documents from the threat of other close relatives, most commonly brothers in cases of inheritance and husbands in cases of divorce. This suggests that extracommunal institutions were particularly useful for Jewish women when negotiating with the men who were closest to them, thus demonstrating the close association between these male relatives and communal institutions. We have seen in this chapter, and throughout the book, just how important supportive male relatives were for women in the local Jewish court. But what happened when the conflict was with close male relatives, like a brother or a husband? In such circumstances Muslim legal venues offered Jewish women a way to bypass the more socially embedded Jewish institutions in which their male relatives held a clear advantage. Using Muslim legal venues meant that Jewish women had to negotiate along the two axes around which this chapter revolves: with close males on the one hand and communal institutions on the other hand. As was done in the previous sections, we will limit ourselves to two cases that exemplify this double negotiation and how it plays out along the two axes. The first case is a heart-­wrenching appeal to the Jewish community by a young woman neglected by her older husband, who was also her paternal cousin. Her petition echoes many of the themes explored throughout this chapter: O Community of Israel, I appeal to God and to you. I am a young woman. God the exalted—whose judgments we accept—has tested me with a man known as Joseph b. Kulayb the Kohen, \\the in-­law of Ibn Tarsun, the cantor.// He is my paternal cousin, an old and senile man, who vexes me with (his) travel expenses, small and large. You know what the Scripture says: “(a man) must not withhold (from his wife) her food, her clothing, or her conjugal rights”

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(Exodus 21:10), but he never even stays at home at night. An orphan girl lives with me and keeps me company. Two years ago, he promised to pay me half a dirham per day; but he keeps saying: Be patient a month or two with this half a dirham until God will provide. But the two months have become two years. Therefore, I am asking my lord, the Head of the Row, and Israel (i.e., the Jewish community) to secure me my rights from him; otherwise, I shall need to go to Muslim courts who will secure my rights. For ten years he has given me no clothing except one wimple. I had a mother who took care of me139 in these tight times. He relied upon her and acquired a scent of respectability. My mother died three years ago. I sold all my dowry and maintained myself by it. But now nothing has remained with me except turning to God and to you. O Israel, less than this (speech) ought to convince you. Peace be upon you. “(May the Lord, the God of your fathers,) increase your numbers a thousand-­fold, and bless you as He promised you” (Deuteronomy 1:11). Amen. Selah.140 Before discussing the content of the petition, it is useful to identify the people mentioned in it. The petition is addressed to the Jewish community at large but also specifically to “the Head of the Row” (Arabic raʾs al-­kull derived from the Hebrew/Aramaic rosh kallah).141 This was Sahlān b. Abraham, the head of the Babylonian congregation of Fustat from around 1030 until his death in 1050.142 The wife’s husband, Joseph b. Kulayb the Kohen, cannot at the moment be identified with certainty, but it seems that he was a foreigner in Fustat but well-­connected to prominent members of the Jewish elite.143 This conclusion is reinforced by the addition above the line to the name of the husband that he is “the in-­law of Ibn Tarsun, the cantor.” The Ibn Tarsuns were a family of cantors, judges, and communal functionaries well represented in the Geniza record. Here the reference is to Aharon b. Ephraim of the Ibn Tarsun family, who was not only a cantor but occasionally a member of the Jewish court as well.144 He was also related to Sahlān b. Abraham, to whom the petition was addressed. Aharon was Sahlān’s maternal uncle and, in fact, was one of the signatories on Sahlān’s marriage agreement of

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1037.145 The Geniza preserved several notes in which the more prominent nephew instructs his uncle in various legal and communal affairs.146 By adding above the line that the husband is an in-­law of Sahlān’s maternal uncle, the petition probably did not merely mean to provide further identification of the husband but to stress that he is related to Sahlān. This was not a close relationship that would necessitate that Sahlān take the husband’s side but a general relationship that may suggest a responsibility on Sahlān’s part to help the suffering wife.147 The petition reports a by now familiar situation of a husband who systematically defaults on his marital responsibilities and even makes undue financial demands of his wife. In between the description of her difficult state, the petition asks Sahlān “to secure me my rights from him.” The mention of travel expenses, food, clothing, and maintenance suggests that the wife is asking for financial rights rather than divorce.148 Beyond the basic claim of her husband’s failure to meet his responsibilities and her pressing need, she stresses the theme we have encountered in many petitions: the lack of social support. She claims that her husband never sleeps at home while mentioning that she has an orphan girl who keeps her company to signal her sexual propriety. For several years she (and her husband) relied on the support of her mother, but now with her mother gone she claims that “nothing has remained with me except turning to God and to you.” This does not prevent her from raising earlier in the petition the threat that if her rights are not secured by Sahlān, she “shall need to go to Muslim courts who will secure my rights.” Her threat that she would go to Muslim courts is thus born out of the decline in kinship support and is directly tied to the communal support she is asking for: if the leader of the Jewish community fails to secure her rights, she will turn to a Muslim court. While poor women usually threatened to use Muslim courts, upper-­class women often carried out this threat.149 A legal testimony from 1034 reports that Mubāraka sued her brother Ezra b. Samuel b. Ezra, the representative of the merchants, for their father’s inheritance before the Muslim chief judge (shofet ha-­shoftim, a Hebrew calque on the Arabic qāḍī al-­quḍāt), the highest legal authority in the Fatimid Empire.150 The testimony relates how Ezra approached the witnesses and asked them to reconcile his sister. It is not clear whether the witnesses were acting as a formal court or as “concerned” communal leaders, but they approached Mubāraka and threatened that she would be severed from the Jewish community. However, the testimony relates that

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“Mubāraka did not pay heed to our words and went to the chief judge. The footmen seized (her brother) and she humiliated him.” As in many other cases in which a Jewish woman used a Muslim legal venue, Mubāraka is portrayed very negatively (“She insists on her claims and is stubborn in her insolence”). The witnesses wrote down their testimony to forward it to the Head of the Palestinian academy in Jerusalem so that he would place a ban over Mubāraka for her transgression.151 Here, again, it is important to lay out the social connections that influenced this case below the surface of the record before us. As the representative of the merchants, Ezra was clearly well-­connected to the Jewish communal elite. However, we can point to more specific ties he had with some of the parties involved in the dispute. In one list of donations to the Jews of Jerusalem, we find Ezra alongside the elite of the Fustat Jewish community. Among the other contributors were the prominent Tustarī brothers, one of whom signed our document.152 Furthermore, in a marriage document from the 1040s, Ezra served as the betrothal agent for the daughter of the Karaite Nasi in Jerusalem when she married Yefet b. Abraham b. Sahl al-­Tustarī, the son of the nephew of the very same Tustarī brother.153 Finally, it seems that Ezra may have been related by marriage to the Head of the Palestinian academy who was supposed to proclaim the ban (namely, it is possible that Ezra’s son married the granddaughter of Solomon b. Judah Gaon).154 The case shows how social belonging is intrinsically tied to one’s communal standing, legal position, and the use of Muslim institutions. The testimony begins by Ezra approaching the witnesses and asking them to go to his sister, reconcile her, and ask her to return to the fold. By being the first to turn to communal leaders, to whom we have seen he was related and clearly enjoyed direct access, he secured their goodwill.155 By asking the leaders to “reconcile her to return from her way” he signals that she is already on her way out. Mubāraka was then threatened with being severed from the Jewish community. This threat, of course, led her to break the fold and reach out to the Muslim chief judge. The result was that the testimony was sent to the Head of the Academy in Jerusalem so that he would excommunicate her. The testimony also declares that the “around five men” who supported Mubāraka “do not fear God.” In this way it makes a clear distinction between those who support the sister, who are impious and work outside the community, and those who support the brother, who are pious and work through Jewish legal instruments (the deed before us) and in Jewish communal channels (the appeal to the head of the Palestinian yeshiva). While the testimony gives

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us very little information on the legal content of the case and the basis of Mubāraka’s claim to her father’s inheritance, it shows us how social belonging and exclusion translate to working either within the communal system or outside of it.

Conclusion The centrality of social ties, or their absence, runs throughout the different tactics surveyed in this chapter. In some cases, we see social ties benefiting women while they take a back seat. In other cases, we see women actively trying to recruit social support or capitalize on their purported lack of support. Thus social support made up the central axis around which most disputes revolved. Of course, considering the argument in Chapter 1, it is not surprising that in the socially embedded legal arena of Jews in medieval Egypt social ties played a central role in the dynamics of marital disputes. What I have tried to do in this chapter is to explore how social ties, or their absence, worked for or against women and examine the specific mechanisms in which they influenced the progress of a dispute. Put differently, given the socially embedded legal arena presented in Chapter 1 and the ways it was gendered as argued in Chapter 2, how did women use their resources? Once we put aside totalizing labels such as “powerful” and “successful,” we can better understand the advantages and disadvantages that each tactic offered, while leaving plenty of room for unknowns and chance.156 The other axis around which marital disputes revolved was whether a woman worked through communal institutions or in opposition to them. The first institutional port of call in disputes was usually the local Jewish court. As disputes progressed, however, the more frustrated party often sought to obtain an advantage through other venues. Some of these venues were still contained within the Jewish communal fold, such as turning to relatives, petitioning communal leaders, going to the center in Fustat, or obtaining Jewish responsa. Other venues went beyond the fold and involved Muslim legal institutions. My argument is that, for women, the availability of supportive kinship ties played a central role in the decision to stay within the communal fold or venture beyond it. Kinship ties thus empowered women but also shaped their options. This is not to say that women with connections stayed within the community and women without connections went outside of it. In some cases, Jewish women went to Muslim venues to bypass

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the Jewish venues in which their opponents had more contacts and clout. However, we also saw a case in which a woman’s late father was a government official and this facilitated her use of Muslim venues.157 More commonly, we have seen that it was often a woman’s parents who made sure to protect her monetary rights, either from her brother or from her husband, by giving her property recorded in a Muslim legal document. In one case, a father made sure to record even his daughter’s marriage agreement in a Muslim document, a decision that met with incredulity from a Jewish communal official.158 We see the entanglement between the axes of social support and communal solidarity when the supporters of a woman who appealed to a Muslim judge were castigated as impious men. Beyond providing insight on women’s predicaments and strategies in marital disputes, my analysis has several broader consequences for our understanding of women’s lives, the relationship between the family and the community, and the idea of social capital. I noted at the beginning of the chapter that women’s greater dependence on social ties, and the fact that these were usually limited to kinship ties, translated to a greater degree of instability and insecurity in their lives. The cases surveyed in the body of the chapter highlight how women had to develop different kinship ties at different stages in their lives.159 Usually, their first protectors were their fathers, later replaced by brothers and husbands, and finally sons and sons-­in-­law.160 Each shift represented a profound transformation of women’s predicament, required forging new relationships while maintaining old ones, and brought about potential new conflicts. These moments of transition and realignment of the support network are often when conflict erupted and necessitated the composition of a written record. Goitein famously pointed to a woman’s first marriage as a central moment of transition in her life.161 One of the consequences of this chapter is to highlight the death of her father as another major point of transition. The father was usually a woman’s less complicated supporter; we have seen many cases in this chapter and the previous ones in which the active involvement of a ­woman’s father was crucial in understanding the dynamics of the conflict.162 His death changed a woman’s relationship with her brother, as he now became the head of the family and potentially competed with her over the inheritance. A woman’s relationship with her husband was also complicated due to the complex system of mutual obligations and tensions with the in-­ laws. As we saw in the case of Sar Shalom and his wife explored in Chapter 2, the death of the father could also be a cause for renegotiation of a woman’s

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relationship with her husband.163 In terms of social support, the death of a woman’s father seems to have been the most difficult transition in her life.164 Combining the traditional focus on formal moments of transition of personal status with relational thinking about shifting and contingent kinship ties enriches our understanding of women’s lives and the family complex.165 The relationship between the axis of kinship support and that of communal participation problematizes the common understanding of the relationship between the family and the community. The family is often seen as the basic unit of the community, confined in it and enjoying a symbiotic relationship with it. Thus, much of the communal socialization takes place within the domestic family space and the family is touted as a central value by the community.166 However, that things were not so simple can be deduced by the sheer amount of effort exerted by communal institutions to control and supervise the family. In this chapter we have seen that Jewish women tended to use Muslim courts to renegotiate their relationships with the men closest to them (usually brothers or husbands). Furthermore, close relatives (usually parents) tended to secure women’s monetary rights through Muslim legal documents, knowing that they might face severe pressures in communal courts. Once we factor in the agency of individuals, the family does not fit easily and squarely within the community. Individuals step out of the communal sphere to litigate against relatives or protect relatives from other relatives and from communal institutions. Seeing the family as stretching beyond the community and loyalty to relatives as occasionally in opposition to communal participation is in line with the findings of Simonsohn and Yagur, who have shown that apostates often maintained ties with their families.167 While seen as the bastion of communal autonomy, the family in fact was occasionally a locus for its undermining. Finally, the examination of the ways social ties are invoked and used in marital disputes provides an occasion to reevaluate the concept of social capital. “Social capital” is a term used in very different ways, many of which are far removed from the practice of social historians.168 In the early drafts of this chapter I used Bourdieu’s concept of social capital; he conceived of it as an asset nurtured, maintained, and employed deliberately by individuals or groups rather than as an unintentionally produced public good.169 I thought that women who had supportive relatives had social capital. However, not unlike my preliminary use of “successful women,” I soon encountered problems. Thinking through the cases explored in this chapter I came to realize that the value of social ties is inherently situational. In the simplest of formulations, a

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well-­connected brother is godsent for a woman undergoing a marital dispute but a nightmare for her in an inheritance dispute. Similarly, a well-­connected husband is godsent for a woman in an inheritance dispute but a nightmare for her in a marital dispute. Not only are kinship relationships contingent but their value is situational. This works against likening social ties to capital as an asset that can be accumulated and then transformed into the capacity to influence a variety of situations. The situational nature of social ties (the fact that their effect is often specific for certain goals and outlets) is in opposition to the requirement of transmutability that underlies Bourdieu’s conception of capital.170 Rather than conceiving of social relations as amorphous capital, like money that has no scent, social ties can be likened to a set of keys. Some keys can open many doors while others are more specific. Some keys are easy to use while others require a careful and deliberate “touch” and do not work when used by others. Some keys are meant to open doors that lead to other doors, while some doors, after they have been opened or used too frequently, must have their locks changed. Kinship ties were contingent, situational, and influenced communal participation and the degree to which one could go beyond the community.

Conclusion

The life stories of medieval Egyptian Jews reach us through the “sacred trash” of the Geniza or through rabbinic responsa in snippets and fleeting glimpses. We wonder at the self-­fulfilling prophecy of the husband who demand reconciliation lest his wife submit her case to the Head of the Jews.1 We follow Rachel’s contested betrothal as it tumbles its way through different legal venues and hope that Maimonides’s ruling brought about a happy ever after with her Reuven.2 We witness Ṣāliḥʼs former wifeʼs ruckus in court, but we do not know what came before or after it.3 Our heart goes out to the many women who petitioned the Jewish authorities against husbands who were pressuring them to ransom themselves out of the marriage bond, but we rarely hear these stories from the husband’s point of view.4 Even in the case of Mevorakh ha-­ Melammed who divorced his wife after his father-­in-­law prevented his flight from the town, we suspect that Maimonides’s criticism of the local judge’s probable collusion with the father-­in-­law may have overturned the case.5 In all these examples, the incomplete nature of the sources curtails our ability to fully recover the life stories of the people involved. At the same time, it sparks our curiosity and propels our inquiry forward. We use our imagination to offer an interpretation of the partial and convoluted evidence in an attempt to arrive at a general view without reducing the inherent messiness of everyday life. Marital disputes proved to be a useful lens to the study of law, gender, and community because when they erupted it was not only the spouses who confronted one another; their family members, communal institutions, legal prescriptions, and Muslim authorities were also cast into the boiling cauldron. Through micro-­studies of marital disputes as they play out in the home, the court, and the wider legal arena, it has been possible to offer a view from below of Jewish life in medieval Egypt. By reducing the scale of inquiry, fleshing the social networks that often stood behind reported cases, and examining the actions of various parties, I have tried to move away from the traditional top-­ down focus on prescriptive law and communal institutions to explore what I

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have been calling “lived law,” how Jews experienced communal law and acted within and without it. This perspective does not ignore the importance of Jewish law and legal institutions but argues for the decisive role of gender, social relationships, and the actions of individuals in the ways institutions functioned. The four chapters of the book presented a closely knit argument for the centrality of social relationships in the Jewish legal arena of medieval Egypt and explored the consequences of this reality for the experiences and actions of women. In the first chapter I argued that the competitive legal bazaar of medieval Islam empowered litigants vis-­à-­vis communal institutions who were dependent on laymen’s participation. These institutions remained attractive to litigants because they were embedded within the social fabric of the Jewish community and saturated with the cultural values of medieval Islamicate societies, such as patronage, intercession, and solidarity. This embeddedness and saturation provided legal institutions with soft coercive power over litigants, whose actions were the main engines that drove the legal arena. The rest of the chapters explored how this legal arena served women in marital disputes, who on the one hand had the option of turning to Muslim legal venues but on the other hand were fundamentally limited in their social networks and dependent on male relations. I argued that in their attempt to reach amicable settlements, courts tended to place disproportionate pressure on women to compromise, especially when it came to women without supportive male relatives or of lower social status. Particularly problematic was the assault on women’s monetary rights whereby pressures in court combined with pressures at home. Women had a variety of means to resist these pressures, which can be organized along the interrelated axes of available social relations and communal participation. Having made the argument and supported it with many micro-­studies, it is possible now to offer a few thoughts on how these conclusions reflect back on the three main themes in the book’s title: law, gender, and community. These thoughts also include several directions in which this rather focused study can be continued.

Law The Introduction presented the law with which we are concerned as “lived law,” that is, not simply “law in practice” as opposed to “law in the books” but law that is deeply entangled in the lives of individuals and in communal institutions. This entanglement meant that legal practice was enmeshed

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with political concerns, economic needs, kinship relations, and individuals’ emotions. Law was not an obscure cult that operated in a set-­apart realm and derived its force from its alterity but a constant presence that influenced life and was influenced in return at every turn. Furthermore, I argued that this is what Jewish law looked like for the great majority of Jews in medieval Egypt. So now we ought to ask: How did this entanglement reflect back on law? How was Jewish Law (this time with capital letters) viewed by ordinary Jews in medieval Egypt? Did they separate it from the myriad ways in which it was entangled with their lives and make a distinction between the religious-­ intellectual tradition and the quotidian workings of the legal arena? The most basic answer to these questions seems to be reflected in the very existence of the rich corpus of legal documents in the Geniza. Jews voted with their feet. They patronized robust Jewish legal institutions, requested Jewish legal documents, and later used them when the need arose. At the same time, we also encounter expressions of resentment about the social embeddedness of law. In petitions we often hear complaints about the actions of officials. For example, women complained against courts unwilling to force their husbands to grant them a divorce. In the opening of Chapter 2, we heard Ṣāliḥ’s former wife accuse the court of taking a bribe in order to divorce her. In other occasions, people complained against judges’ predilection to postpone making a ruling in favor of trying to reach an amicable settlement.6 We have seen cases in which Jews ran away in order to avoid litigation or brought their cases to Muslim legal venues. Yet, these were tactics conducted within the legal arena. They usually indicate disillusionment with a specific official or institution, not a more general disavowal of Jewish Law as a system due to embeddedness in the social fabric and political life of the Jewish communities. Even in the case of the husband who could not withstand the solidarity of his father-­in-­ law and the local judge, the husband worked within the system and turned to Maimonides for a ruling.7 While using Muslim legal venues was not uncommon, it is clear that Jewish institutions were the first port of call in most disputes and when transactions were notarized through Muslim deeds it was usually not seen as a challenge to the community. We do encounter a couple of cases of more radical disillusionment. For example, when a man approached his brother-­in-­law with two rulings by Maimonides requiring him to vacate a house he seized by force, the latter simply wrapped a zunnār (a special girdle meant to mark Christians as such under Islamic rule) and declared “I am Christian!”8 In a fragment of an undated letter we hear of a man who seems to have been under a ban for

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some twenty-­five years after conceiving a child outside of proper marriage. When he was approached about something by the local Jewish leadership, he declared, “Who made you judges?!”9 However, such flagrant challenges to legal institutions were clearly the exception rather than the rule. The evidence at hand suggests that the resentment against specific officials or even the use of Muslim venues did not lead to a principled rejection of Jewish Law as a normative system. Either there were few to no Jewish Menocchios in medieval Egypt or the waste-­paper collection of a medieval synagogue is not the place to find them.10 This conclusion is reinforced by the fact that in numerous petitions and private letters Jews express the notion that Jewish law was on their side. True, people usually consider themselves to be in the right, rarely admit their faults, and tend to place all the blame squarely on others.11 Yet, we also see writers make specific reference to Jewish Law when making requests. “By the truth of the divine law” (bi-­ḥaqq al-­sharīʿa, with many variants) is a common oath in letters, as is the more pointed “By (the knowledge of ) the divine law that you have” (bi-­ḥaqq mā f ī ṣadrika min al-­sharīa).12 The wife of a money changer who had been asking for divorce for eight months in vain sent a petition to Maṣliaḥ Gaon, the Head of the Jews in the years 1129–39. She asked him: By (the knowledge of ) the divine law that you have, examine my situation and quickly issue a verdict, whatever it may be. . . . The servant is bashfull, I do not have a tongue to speak with. By your parents! Examine my state and liberate me.13 . . . You are the substitute of God, the Exalted, to the widows and orphans,14 and I have no one but God, the Exalted, and your mercy. All that I want is the liberation of the servant, by any means necessary and what the divine law obligates. And peace.15 This sense that law and religion were on their side empowered ordinary Jews when dealing with communal institutions. While the court and the Head of the Jews represented the religious establishment, ordinary Jews still felt they could make a claim based on the religious law to which the leadership ought to be beholden. This empowerment comes across well in an opening of a petition of a “widowed woman, destitute, debt-­ridden and with four orphans.” The petition describes the state of the woman and her orphans as “cut off from social support (munqaṭiʿūn), naked, starving, having no one to turn to except God the ex(alted) and my masters the illustrious elders.”

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Claiming to have no social support, the petition made up for it by a bold opening: “I made God my intercessor with your excellencies, my masters, the illustrious lordly judges, and with the elders of Israel.”16 Though theologically misguided (because intercession can be helpful to reach God, but God ought not to serve as intercessor), such a declaration makes a lot of sense in the socially embedded legal arena in which intercession was an important mode of operation. This statement reflects how ordinary people saw Jewish Law not only as good and true but as a powerful instrument that they could make a claim upon and that could assist them in their dealings with communal institutions. This claim was not based on rabbinical learning but on a simple faith in the justice of the God, their own justice, and that of the Jewish tradition.17 It is not far-­fetched to connect that simple faith to the familiarity with legal practice obtained through lived law, as opposed to the force of law built on alterity and textual tradition that we find in modern legal systems.

Gender The preceding chapters developed an argument about women’s experiences in the legal arena and their ability to act in it. I argued that women faced significant and particular pressures in court and at home to make compromises, especially monetary ones, and that their actions in response to such pressures were organized along the interrelated axes of kinship support and communal participation. As noted in the last chapter, the centrality of kinship relations is closely tied to the instability and unpredictability of women’s lives described in the Introduction.18 In general, men had several different sources of power to draw from: communal status, wealth, education, and family ties as well as social ties beyond the family. The fact that women had mostly family relations to draw from already placed them in a precarious position. Furthermore, while some men became destitute, lost their communal position, or fell out of favor, there is hardly a structural feature that necessitated such changes. Women, however, relied on family relations that underwent periodic drastic changes: at first, they were dependent on a father or uncle, then on brothers or a husband, and finally on a son. Even if at one stage a woman had a supportive male family member, there was no guarantee for the future. Finally, economic necessity often pitted women against the very men who were supposed to be their stalwarts: brothers and husbands (financial disputes with sons were rarer but did exist). The inherent variability in women’s familial

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support and the unpredictability of women’s lives due to polygyny, husbands’ absenteeism, and high rates of divorce and widowhood mentioned in the Introduction make the findings of this study relevant beyond the specific cases examined. Even if a woman was happily married and “covered,” a change of circumstance (whether in the form of a second wife, a husbandʼs business trip, the death of a father, or widowhood) could be lurking right around the corner. Though women could try to protect themselves through various legal instruments, their ability to implement these instruments depended on the same precarious social status. This does not mean that all women experienced the problematic aspects of the socially embedded legal arena; but all Geniza women were affected, in one way or another, by the realities of married life explored in the chapters above. The painful stories explored in the different chapters do not imply passivity or powerlessness. Indeed, the only reason we can recover these stories is because these women were able to elicit scribal support to write down their plight so the wrongs done to them would be redressed. Combining attention to women’s misery as well as actions follows the general trajectory in the study of women’s history in the past decades from a focus on oppression and the status of women to exploring their agency and ability to negotiate with the systems of their subordination. These negotiations and actions were hardly those of the autonomous liberal subject but were born of, and restricted by, the predicament of Jewish legal institutions, the legal framework of Jewish marriage, and women’s constrained cultural and social resources. Thus, we came across both women who broke communal norms and male authority and appealed to Muslim courts and women who let their male relatives take care of their interests within communal institutions. Some women even went further and emphasized their social weakness in order to capitalize on their gender. Our vision of agency encompasses all of these approaches.19 At the same time, in line with what was argued above regarding the force of lived law, all these forms of action were individual and focused on the betterment of specific women, without a claim or an intention to better women’s conditions in a general way. It seems as though women’s dependence on specific male relations (father, brother, son) worked against organizing along the lines of sisterhood.20 It is probable that bonds between unrelated women existed and were significant in various ways, but they rarely played an explicit role in marital disputes. In order to combat the erroneous conclusion that women belonged to the Jewish community only through their relationships with men, it is important to remember that this book’s focus has been on marital disputes. Marital

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disputes were certainly a central feature of women’s lives and are very visible in the surviving record, but the lives of women were not confined to the marriage and the family. While we have seen in the previous chapters women operating in legal courts optimally through connection to men, there were other communal institutions besides the court. Women attended synagogue, which had a space set aside for them (usually in an upper gallery).21 Women were prominent in the activities of the Jewish pious foundations, both as contributors to and recipients of public charity.22 Women also participated in pilgrimage, both the highly valued pilgrimage to Jerusalem and the more local visitations of holy sites, such as the one in Dammūh.23 This book focused on marital disputes and the legal arena, but there were other aspects to women’s lives. In the same way that we flipped the question regarding how Jewish Law was viewed in light of its social embeddedness, we ought to flip the question about gender to ask how the dependency of women on male relatives in the legal arena affected men. The question of what it meant to be a Jewish man in the Middle Ages has barely been raised in scholarship, and the study of Jewish masculinities seems to jump from late antiquity directly to the modern period.24 Our study suggests a direction for a future study of Jewish masculinities in the medieval Islamic world. Women’s dependency on supportive male relations finds its equivalent in the expectation that a man would be able to support and provide “cover” for those dependent upon him. Indeed, letters to absent and runaway husbands often raise the question of what sort of man abandons his family. The importance of ties of dependency for masculinity is connected to what elsewhere I have been calling a “masculinity of belonging” that characterizes middle-­class Egyptian Jewry. Being a man meant belonging to a variety of social networks and fulfilling the obligations that such belonging entailed. This comes across vividly when we realize that women’s claims in their petitions that they lacked social support are mirrored in men’s petitions in their concern about social belonging.25 Similarly, while men used the kinship oaths similar to the ones used by women, they also employed social oaths (“by our friendship,” “by the bread and salt we ate together,” “by the cup we shared,” “by the love [we share]”), again showing the importance of social belonging to men.26 Thus we can talk about a masculinity of belonging that includes both belonging to networks of other men and being a supportive man in dependent relationships. This direction of study is particularly promising because it allows us to look at a masculinity of middle-­class Jews who were not the rabbis from whom we have most of the evidence from the Middle Ages, nor do they reflect the well-­known (though

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hardly researched in depth) masculinity of pre-­Islamic poetry. The study of masculinities in Europe has tended to view masculinity as based upon domination of others (whether in the jousting of knights, the university debate, the master workshop or in the family), and this masculinity of belonging may provide an interesting counterpoint to such conceptions.27

Community In order to appreciate the perspective on the Jewish community offered in the preceding pages it is instructive to consider the following description of medieval Jewish communal life and self-­rule in an authoritative collection of articles on the long history of Jewish self-­rule published in 2004: Jewish self-­rule served as the most important instrument to the existence of the Jewish people in its medieval diasporas. From the moment of birth until death, one was tied to the institutions of the community. (The community) provided a social, cultural, economic, security frame, and to a certain degree, also served as an expression of Jewish sovereignty in difficult times and fateful moments. . . . The more pressures to convert the Jews mounted in Muslim and Christian society, the more the Jewish scholars labored to strengthen the foundations of the community, knowing that it serves as the main barrier against conversion and assimilation. They felt that the ability of Jews to cope with the dangers facing them depended, to a great extent, on their unity and on being bound in a strong and solid organization. . . . The saying of the sages, “all Israel are responsible for one another” (BT Shevuʿot 39a) was not an empty phrase, but a practical doctrine according to which the community built its institutions and leadership.28 This conception of the cohesive and autonomous Jewish community harks back to Baer’s vision of the Jewish community as an organic and immanent creation of the Jewish people.29 Seeing the community as a natural emanation of the Jewish people, it adopts a top-­down approach that focuses on the leadership of the scholars who navigated the Jewish community through the turbulent waters of exile with pressures to convert mounting on all sides.

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When it comes to Jewish communities of the medieval Islamic world, this approach has been challenged in recent years from several different directions.30 In a landmark study, Marina Rustow suggested a “looser network model” for the Jewish community that accounts for multiple and simultaneous sources of authority, such as Jewish courtiers, merchants, and Karaites. Such a model goes directly against the top-­down, autonomous, and centralistic model of the community and brings the Muslim state into the equation as a significant and non-­malignant player.31 Miriam Frenkel examined the Jewish elite in Alexandria and offered a complex and nuanced treatment of the dynamics of power and sources of authority in communal life, in place of the assumption of “naturalness” with which earlier studies viewed communal leadership. Rather than approaching the rabbis as the embodiment of the collective will and the community as the immanent creation of Jewish history, Frenkel places power and control back into the political grid of the Jewish community as she explores the mechanisms with which “the leading elite” coalesced and asserted itself.32 Uriel Simonsohn and Jessica Marglin have pointed to the frequency with which Jews appealed to Muslim courts, from Geonic to modern times, in order to argue for a model of legal pluralism and flexibility rather than a model of legal autonomy and strict communal boundaries.33 Studying converts and apostates, Moshe Yagur and Simonsohn pointed to the porous and often blurry boundaries of the Jewish community, further shattering the view of distinct and clearly bounded religious communities living side by side.34 Furthermore, since many of the converts to Judaism were manumitted domestic slaves, Yagur rightly points out that this blurring of communal borders occurred not only at the margins of the Jewish community but in its very heart: the household. Where does this study stand in this debate? While it was certainly not my intention, looking back, I have to admit that certain aspects of the study portray a coherent Jewish community with strong institutions. While recent studies have emphasized Jewish use of Muslim courts, at center stage in this study was the local Jewish court. I have insisted that this court was the first port of call for most disputes (and often it was also the last as disputes taken to Muslim courts often returned to Jewish courts). I have carefully avoided labeling Jewish courts as weak and instead argued that while the means for coercion at their disposal were limited, Jewish courts were robust institutions that produced an impressive written record. Our appreciation of their remarkable strength increases when we compare them to the situation in

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contemporary Ashkenaz, Provence, Crete, and the Egyptian countryside in late antiquity, as was done in the comparative postscript of Chapter 1. Finally, we have seen how women’s petitions convey, and make use of, the idea of a coherent and responsive Jewish community (“O Community of Israel, I appeal to God and to you”). Yet, while legal institutions were argued to be robust, the higher echelons of the communal leadership were rather marginalized in this study. Most often we encountered them as the target of petitions asking for their help, but we rarely see them actively involved.35 When the actions of the local leadership were examined, we hardly saw them bravely navigating the community in the turbulent waters of the exile. More often than not, we saw them rather unheroically intimidating weak women to compromise in favor of a husband or a brother. Indeed, the very idea of recovering the view from below is that structures look different from the bottom up and that the realities of communal life were often a far cry from the unity of purpose portrayed in the glowing description quoted above. Once we leave the leaders’ point of view, the mechanisms of power and control underlying Jewish communities are exposed and the rhetoric of the leadership is shown to mask gendered ideology, politics, and economic convenience.36 Similarly, the perspective of Law & Society has been likened to the demystification of seeing “The wizard of Law at the controls in his slippers.”37 We have seen those “slippers” in the glimpses behind the scenes of the legal arena: a well-­connected brother having an edge over his sister in an inheritance dispute, a Jew complaining about having to drink alcohol with the Muslim judge, a Jewish judge in reciprocal ties of obligations involving obtaining responsa and hooded cloaks, and another judge writing a letter to the father of the woman whose marriage he just saved in order to press the charity case of a passing foreigner. Legal institutions were indeed active and strong, but the chapters above tried to exchange the triumphalist narrative of a paternalistic communal leadership with an orientation from below that focuses on women’s experiences in communal institutions and the quotidian realities of these institutions. Another consequence of the view from below that is entirely missed in the triumphalist quote above is the ability to view and analyze individual agency and dissent. By reducing the scale of inquiry to follow the realities of particular disputes, I attempted to replace the traditional picture of unity and autonomy with one that includes options and alternatives. It is true that one of the dangers of reducing the scale of inquiry is an overemphasis on agency.38 This is why I explored how these options were shaped by gender,

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social relationships, economic status, and the structure of the legal arena. The actions of litigants constituted an internal challenge to the authority of communal leadership independently of external pressures to convert. The combination of the argument for robust institutions, on the one hand, and the attention to the experiences and actions of laypeople is neither accidental nor contradictory. I have argued that the strength of legal institutions was derived in substantial measure from laypeople’s participation and that the actions of litigants shaped communal institutions and served as the main engines of the legal arena. Thus, the strength of communal institutions is not an immanent product of the Jewish people but a result of complex interactions between laypeople’s choices and institutional response. In a way, this harks back to Goitein’s argument about “the blending of hierocratic and democratic elements,” except that Goitein was focusing on the relationship between the local community and the center, while here we are dealing with the relationship between individual Jews and the institutions of the local community.39 More importantly, rather than talking about “blending” in a general way, I have argued for a detailed reconstruction of a complex legal arena: how did it function, what were the sources of its power, and what happened when women and social status entered the fray. I think a similar guiding principle of trying to present an integrated broad picture has also guided me in examining Jewish use of Muslim legal venues. Taking legal pluralism as the starting point rather than as a conclusion, I asked how the option of using Muslim venues affected the dynamics of disputing among Jews. This required integrating the Muslim venues into the broader Jewish legal arena and acknowledging the plurality of options available also in Jewish institutions. The result was an argument that the use of Muslim legal venues not only was a threat to communal authority but also had a productive effect on the legal arena, forcing legal institutions to find ways of keeping their clientele as participating members. Thus, this study ends up challenging the idea of the autonomous community, not by pointing to the fact that Jews went beyond communal institutions but by bringing the Muslim institutions into the Jewish legal arena. Jewish courts remained central and robust, but the law encountered by laypeople in them was a lived law, fully embedded within the social fabric of social relationships, exercised in both Jewish and Muslim legal institutions, and sharing the surrounding Islamicate ideals of solidarity, patronage, and intercession. The Jews of medieval Egypt maintained robust legal institutions, but their autonomy was of the integrated rather than separate kind. Jewish courts were

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a part of the state’s administration of justice, and Jewish legal institutions had a complex relationship with their Muslim counterparts, mixing cooperation and competition.

* * * This study kept a strict focus on the Jewish legal arena of medieval Egypt and, with the sole exception of the comparative postscript of Chapter 1, made only passing comparisons in the notes to other Jewish communities or to Islamic society in general. While such comparisons are certainly possible and promising, the amount of time and care required to deal with much unpublished and unexamined Geniza documentary material meant that such comparisons would need to await future studies (hopefully by other scholars). Beyond comparison, much can be done by way of integrating the results of this study with our understanding of medieval Islamic Egypt. In his recent book, Lev Weitz made an emphatic argument that the history of the non-­ Muslim communities is an essential part of the study of Middle Eastern societies and Islamic empires.40 Indeed, in the study of the documentary Geniza the trend since the work of Goitein has been to emphasize the ways Jews were integrated in broader Islamic society and shared much of its social practices and cultural values.41 This book follows this approach by locating Islamicate practices such as patronage, intercession, and solidarity deep within what is often considered to be the cornerstone of Jewish communal autonomy, the Jewish court. Similarly, the many micro-­studies explored in the previous chapters demonstrate, I believe, that Geniza letters are a rich, yet barely tapped, source for the study of Muslim legal and governmental institutions. At the same time, the exploration of the Jewish legal arena also points to aspects in which the Jews were different from their surrounding communities.42 The fact that Jewish legal institutions did not have direct state support and only limited coercive powers meant that the Jewish legal arena was quite different from the Muslim legal arena (even though the Jewish legal arena included Muslim legal institutions). Even more telling is the comparison with the Christian communities in Egypt. As discussed in Chapter  1, while the numerically insignificant Jewish communities maintained at least since the beginning of the eleventh century a robust legal system that produced thousands of legal documents, the Copts did not maintain a system of courts and the tradition of Coptic legal documents practically peters out already in the ninth century to be replaced by the use of legal documents produced by

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Muslim notaries.43 This profound difference between the two non-­Muslim religious communities begs an explanation and suggests just how exciting future studies promise to be.44 In the words of R. Ṭarfon in Mishna Avot: “The day is short and the work is plenty. . . . It is not your duty to finish the work, but neither are you at liberty to neglect it.” Poring over the sacred trash of the Geniza, one occasionally wonders what the people whose lives we labor to recover and interpret would have said had they known that this material would be read and analyzed a thousand years after their death.45 Some might simply have been outraged by the breach of privacy—a central ethos in their society, which seems to have weakened in our own. Others, like the women who commissioned petitions on their behalf, might have been gratified to know that the narratives of their plight still elicit sympathy across the divide of time and space. All would probably have been amused by our perplexity in the face of basic things that they regarded as self-­evident. As uninvited readers of these traces of bygone lives, we sympathize with their pain, share their secrets, and are complicit in their schemes.46 However, we must not lose sight of the fact that what has reached us are only fleeting glimpses, as if from a shattered mirror, of complex lives. Did the ­couple reconcile in the end? Did the tormented wife eventually find solace after all was said and done? The Geniza pours its dazzling light on some expanses and leaves large swaths in the dark. Yet, perhaps there is a measure of comfort in the thought that these stories of everyday lives remain to us open-­ended.

Notes

Jewish Marriage 101: In Lieu of a Glossary 1. As Lev Weitz points out, this basic structure, in terms of both formation of marriage and monetary exchanges, was shared among Jews, Muslims, and Christians in the medieval Islamic world, with various nuances of terminology and essence; see Weitz, Between Christ and Caliph, 109–22. 2. The essential study on marriage practices in medieval Egypt and Palestine is JMP. 3.  The “in” ending is an Aramaic plural ending that has entered Hebrew in the Mishnaic period. Some readers will recognize these words with the “im” ending they have in Hebrew. 4. On engagement, see Ashur, “Engagement” and “Engagement and Betrothal.” 5. This presentation of the three stages of marriage follows Ashur, “Engagement and Betrothal,” 1. 6. On the ketubba, see JMP and Olszowy-­Schlanger, Karaite Marriage Documents. 7. A general problem that besets the study of monetary arrangements of marriage is that often little distinction was made between the various terms. Ketubba, for example, could refer to the actual document, the dowry, or the dower (and it is also often referred to either as “her ketubba” or “his ketubba”). 8. I emphasize the reciprocal nature of the commitments to counter a common conception that Jewish marriage was simply a transaction whereby a husband acquired his wife by payment. On the relationship between marriage and partnership, see JMP, 19, and Ackerman-­Lieberman, The Business of Identity, 101–2. It is useful to think about acquisition, rent, and partnership as imperfect models with which jurists (and modern-­day academics) can think through various aspects of the marriage bond; see Ali, Marriage and Slavery in Early Islam, 16. 9. See JMP, 237–67. 10. Ibid., 241n8, 269n120. 11. It is common to refer to the husband’s payments as “gifts” (i.e., “the early marriage gift” and “the delayed marriage gift”). However, I avoid using this language of gifts as it may convey a gratuitous voluntary act; see more in Chapter 3. 12. JMP, 267–85; Friedman, “Division of the Additional Ketubba.” In rare cases, it seems that the delayed marriage payment was also given to a wife who agreed that her husband take a second wife; see Friedman, Jewish Polygyny, 36–39.

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13. Med. Soc. 3:180. 14. Hence the name “iron sheep”: this property is held secure to the wife like iron that does not decrease or increase. 15. These are the obligations and entitlements relevant to the chapters in this book. 16. Ashur, “Engagement and Betrothal,” 87–88, with references to earlier studies. 17. Mishna, Yevamot, 14:1 (BT Yevamot 112b). 18. Mishna, Ketubbot, chap. 7.

Notes on the Text 1.  For some of the problems of defining Judeo-­Arabic, see Wagner, “A Matter of Script?” and Kaplony, “Scribal Traditions in Documentary Arabic.” 2.  Even when editing a philosophical Judeo-­Arabic text, Goldziher speaks of the conflict of conscience (Gewissenskampf ) involved in editing such texts; see Goldziher, Kitāb maʿānī al-­nafs, 9. 3. Friedman, “Maimonides ‘Rayyis al-­Yahūd,’” 413n1. 4. Med. Soc. 1:363.

Introduction 1. The nature of this bill of divorce is not entirely clear; see the edition in the next note. 2. T-­S 13J13.30, ed. Zinger, “Women, Gender and Law,” doc. 13. 3. See Humphreys, Islamic History, 25–49 (the Geniza receives an important treatment on pp. 261–73). In her recent The Lost Archive, Marina Rustow argues against “a widespread but mistaken notion that few documents have survived from the Islamicate Middle East before about 1500” (1). Without diminishing the brilliance of Rustow’s work, it must be pointed out that the abundant survival of documents in the Nile valley is an exception, and that once Egypt is put aside there is indeed a documentary problem for medieval Middle Eastern history. I would go further and say that even if we include Egypt, mere numerical comparison is misleading without factoring in the state of preservation, difficulty of deciphering, and the nature and content of the documents in question. For what can be done with contemporary literary sources, see Cortese and Calderini, Women and the Fatimids. The sources are far richer in the Mamluk period; see Rapoport, Marriage, Money and Divorce. 4. On the silences of medieval Jewish women, see Grossman, Pious and Rebellious, 278–80. On women’s letters in the Geniza, see Kraemer, “Women Speak for Themselves,” and the many recent publications of Renée Levine Melammed. 5. Studying law as a social phenomenon places this study squarely in the tradition of Law & Society studies. However, while historical Law & Society studies tend to focus on the complex interactions of society with the legal institutions of a state or empire, the

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Jews of medieval Egypt provide an opportunity to study lived law in small communities enjoying semi-­autonomy within an empire (on semi-­autonomy, see note 9 below). For an engaging introduction to Law & Society, see Calavita, Invitation to Law & Society. In terms of historical studies, I was particularly influenced by Smail, The Consumption of Justice; Kuehn, Law, Family & Women; Humfress, “Law in Practice”; Bryen, “Judging Empire” and “Law in Many Pieces”; and Gagos and van Minnen, Settling a Dispute. See also Rosen, The Anthropology of Justice. 6. The question of whether a society is litigious is often a controversial one; see the classic intervention in Galanter, “Reading the Landscape of Disputes.” Yet reading studies about legal culture in late medieval Europe, like Daniel Lord Smail on Marseilles, Sara Butler on England, or Rena Lauer on the Jews of Venetian Crete, one quickly realizes just how less litigious (and less violent) were the Jews of medieval Egypt; see Smail, The Consumption of Justice; Butler, “The Law as a Weapon”; and Lauer, Colonial Justice. If one looks at our best evidence for the regular work of the central Jewish court in Egypt, a Fustat court notebook spanning three months in 1156, one sees that the court convened about twice a week for usually no more than four cases a day (and often much less); see NLR Yevr.-­Arab. I 1700. For the professionalism of legal culture, see Brundage, The Medieval Origins of the Legal Profession. 7. For the technical nature of legal documents, see Krakowski, Coming of Age, chap. 2. 8. Bourdieu, “The Force of Law.” 9.  By semi-­autonomy I refer to the classic notion of semi-­autonomous social fields; see Moore, “Law and Social Change,” already utilized by Simonsohn, A Common Justice, 12. 10. In recent years scholars have been making a compelling argument that it was in the early Islamic period that Christian, Muslim, and Jewish populations were reconstituted as religious communities centered on a written legal tradition; see Morony, “Religious Communities”; Papaconstantinou, “Between Umma and Dhimma”; El Shamsy, The Canonization of Islamic Law; Payne, A State of Mixture; Weitz, Between Christ and Caliph; and Krakowski, Coming of Age, 88–92. While this approach also emphasizes the communal nature of law, I deal with the eleventh to thirteenth centuries, i.e., after this process was already complete. More importantly, I am interested in law as a social phenomenon (for me law was communal in the sense that we are looking at the legal practice of small communities) rather than as an expression of identity. 11. Scott, “Gender.” 12. Sharpe, “History from Below.” 13. The best introduction to the discovery and subsequent scholarship on the Geniza is the riveting account by Hoffman and Cole, Sacred Trash. 14. These are of course both group genres, including many different subgenres. Letters include private, commercial, and communal ones, as well as formal petitions and decrees. Legal documents include deeds, court notebooks, drafts, and formularies. 15. Wagner, “Languages and Language Variety.” 16. Goitein, Studies in Islamic History and Institutions, 279–95.

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17. Recently, attention has also been increasing on the topic of the fourth volume, material culture, with such works as Lambourn, Abraham’s Luggage, Frenkel, “Texts as Objects, Objects as Texts,” and Frenkel and Lester, “Evidence of Material Culture from the Geniza.” 18. Goitein’s discussion of “Communal Jurisdiction” appears in Med. Soc. 2:311–44. For Goitein’s admission, see Med. Soc. 3:ix and his “Religion in Everyday Life,” 7, where he generously leaves the work to his student Mordechai Akiva Friedman. Friedman has indeed made tremendous contributions to the study of Jewish Law as it is reflected in the Geniza, but less on the practice of legal institutions and the social aspects of legal life. 19. For innovative and promising work, see the recent publications of Edward Fram, Jay Berkovitz, Pinchas Roth, and Rachel Furst. For a sample of such work, see their articles in Jewish History 31 (2017). 20. I use micro-­studies rather than microhistory because I feel that the cases of marital strife examined in this study are too fragmented to form a full-­fledged microhistory. 21. For other studies of marital disputes, see Pedersen, Marriage Disputes in Medieval England, and Schmugge, Marriage on Trial. For the historical study of disputes, see Bossy, Disputes and Settlements; Davis and Fouracre, The Settlement of Disputes; and Brown and Górecki, Conflict in Medieval Europe. The historical study of disputes owes much to legal anthropology and particularly to Roberts, Order and Disputes. 22. On the paucity of research on families in the medieval Islamic world, see Bray, “The Family in the Medieval Islamic World.” See also Benkheira et al., La Famille en islam. For two recent studies that take stock of the family in Geniza studies, see Krakowski, “The Geniza and Family History,” and Frenkel, “Family Life in Genizah Society.” See also Frenkel, “The Life Cycle.” 23. Lavee, “‘Genealogy Came from Babylonia,’” 84. 24. Geertz, The Interpretation of Cultures, 22. Throughout the book I occasionally also examine inheritance disputes as they provide an important comparison by shifting the focus from the relationships of spouses to those of siblings. 25. See more in Zinger, “Women, Gender and Law,” 6–7. An important exception is Friedman, Jewish Polygyny. 26.  Here I am obviously playing on the title of the classic by Lévi-­Strauss, The Elementary Structures of Kinship. For this shift in the study of kinship, see Carsten, After Kinship, 9, 25. In the study of the Geniza, this approach was developed in Krakowski, Coming of Age, 56–67. 27. There is an evident parallel between the move away from “the status of women” to gendered experiences and action and a similar shift in the study of non-­Muslims under Islam from status to experiences and strategies; see Simonsohn, “Communal Boundaries Reconsidered.” 28.  Jessica Goldberg framed this issue best: “Perhaps the most pleasant danger of empathy is sympathy, and the most unpleasant job of Goitein’s successors is the necessity of noting or even stressing the ugly counter-­side to the often sunny images of A Mediterranean Society. Goitein shows a protective sympathy for the people who wrote these documents: he thought well of them, and wished his readers to think well of

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them, in ways that sometimes led to unbalanced appraisal of the evidence at his command”; Goldberg, “On Reading Goiteinʼs A Mediterranean Society,” 175 and the references in n. 24. 29.  See, for example, Wasserstrom, “Apology for S. D. Goitein,” and Friedman, Ḥalfon and Judah ha-­Levi, 53n1. 30. See chaps. XI and XII in Goitein, Studies, 217–54. 31. This dominant approach sees Jewish history primarily as the story of how “Jewish self-­government” preserved Jewish existence in the face of external pressures. See more in the Conclusion. 32. Frenkel, “The Compassionate and Benevolent.” See especially pp. xvii–xxiii, which discuss studies published after the publication of the original Hebrew edition. 33. On Goitein’s “Geniza society,” see Krakowski, Coming of Age, 25–30. 34. Goitein, “Religion in Everyday Life,” 17; Wasserstrom, “Apology for S. D. Goitein,” 181; Goitein, “The Interplay of Jewish and Islamic Laws,” 64. 35. Goitein, “On the Meeting of Israel and the Arabs,” 261; the translation is taken from Libson, “Hidden Worlds and Open Shutters,” 167. 36. Goitein was keenly aware of “the immense extent of poverty and privation experienced by the masses” (Med. Soc. 2:381) and knew that his impressions were gained from reading Geniza letters “written by a limited circle of persons” ( “Religion in Everyday Life,” 17). I believe nonetheless that his deep identification with the luminaries of the Judeo-­Islamic symbiosis led him to emphasize the well-­ordered nature of the society he was studying. See more in Zinger, “Women, Gender and Law,” 11–12, to which I would add that Goitein’s general assessments in Med. Soc. tend to give greater weight to the more prosperous eleventh century rather than the twelfth century, which for Jews saw a marked economic decline. 37.  This has already been observed in Krakowski, Coming of Age, 35–67, a superb study with which this study has been in constant dialogue. 38. On the Geniza as an anti-­archive, see Med. Soc. 1:7–9. 39. See Roger Bagnallʼs argument that we ought to “dethrone chance” when talking about the survival of documents; Bagnall, Everyday Writing in the Graeco-­Roman East, 28. 40. On archives and dossiers and the various opportunities and problems they pose, see Vandorpe, “Archives and Dossiers,” and Bagnall, Everyday Writing in the Graeco-­ Roman East. 41.  Goitein saw Geniza documents as reflecting a Jewish practice that was largely representative of broader Muslim and Mediterranean practices. This optimistic view has recently been questioned by Ackerman-­Lieberman, The Business of Identity. 42. I have tried to offer some guidance in Zinger, “‘Finding a Fragment in a Pile of Geniza.’” 43. See also Smail, The Consumption of Justice, vii. 44. Nonetheless, I believe that Geniza legal records can be highly entertaining and dramatic in their own way. Sex scandals can be found on rare occasions, though they lack the details we have come to expect today; see Zinger, “Between the Muslim State and Individual Agency.”

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Chapter 1 1.  The names of the actual people involved in the case are not known. Rachel, Simon, and Reuven are placeholder names (like John and Jane Doe) conventional in Jewish responsa. 2. Maimonides, Responsa, nos. 196 and 364. 3. From the way both queries are framed, it is clear that it was Rachel’s side that composed and presented them to Maimonides, perhaps with the help of the local judge. There are also several hints in the query that suggest that Simon may have been Rachel’s paternal relative. Now with the father gone, her mother’s side mobilized against him. 4. The responsa preserve a testimony of a very real case with an ambiguous outcome (Did Rachel and Reuven marry in the end?). For how a literary tale with some similarities was told, see Ibn Shāhīn, An Elegant Composition, 81–84. 5.  A fuller and more didactic introduction to the legal arena can be found in my “Introduction to the Legal Arena.” 6. Even though Egypt still had a Christian majority in this period, very little is known about Christian legal institutions, Coptic or Melkite. See Schiller, “The Courts Are No More”; Frantz-­Murphy, “Settlement of Property Disputes”; Mikhail, From Byzantine to Islamic Egypt, 149–59; and Richter, “Coptic Papyri and Juristic Papyrology.” In a recent contribution, Lev Weitz convincingly argues that around the ninth century Christians in Egypt more or less abandoned their communal legal institutions in favor of Muslim ones; see his “Islamic Law on the Provincial Margins.” 7. For what is at stake, see Rapoport, “Royal Justice and Religious Law,” 74. 8. See, for example, Roth, In This Land; Berkovitz, Protocols of Justice; Fram, A Window on Their World; and Furst, “Striving for Justice.” 9. Med. Soc. 2:311–45. 10. A different type of contribution is Ackerman-­Lieberman, “Legal Pluralism” and his “Commercial Forms and Legal Norms.” 11. Friedman, Jewish Marriage in Palestine and “Marriage Contracts.” For a convenient layout of the methodology, see Ashur, “Engagement and Betrothal,” 2–4, 7–9, and David, “Divorce Among the Jews,” 2:3–5, 186. 12. Krakowski and Rustow, “Formula as Content”; Rustow, Heresy and the Politics of Community, 266–88; Krakowski, Coming of Age, 68–109. A diplomatic approach is also adopted in Perry, “Communal Scribes and the Rise of a Uniform Hebrew Style.” 13. See more in the Introduction. 14. Griffiths, “What Is Legal Pluralism?” 15. See the studies listed in Cohen, Maimonides and the Merchants, 202–3, and Zinger, “‘She Aims to Harass Him’,” 161–62n8. 16. Simonsohn, A Common Justice; Rustow, “At the Limits of Communal Autonomy.” 17. Libson, Jewish and Islamic Law; Cohen, Maimonides and the Merchants, chap. 9; Marglin, Across Legal Lines. 18. Ackerman-­Lieberman, “Legal Pluralism.” 19. Smail, The Consumption of Justice.

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20. This is one of the basic points in Galanter, “Justice in Many Rooms.” 21. Galanter, “Justice in Many Rooms,” 17. 22. Shahar, “Legal Pluralism and the Study of Shariʿa Courts.” Even Griffiths concedes that “multiple legal ʻmechanismsʼ are enough”; see Griffiths, “What Is Legal Pluralism?” 12. 23. A systematic institutional study of the court, of the type mentioned above, may find that some aspects of the court’s activity were more prominent in different periods or locations. For example, it seems to me that the court’s supervision of communal endowments grew and solidified during the twelfth century. See now Ben-­Sasson, “Maimonides, Charity and Pious Foundations.” 24. The members of the court are also occasionally called “the courts.” See Med. Soc. 2:314, 595n17, and Friedman, Ḥalfon and Judah ha-­Levi, 35n93. 25. Whether this was an authoritative top-­down appointment or mere recognition of a local leader depended on the specific circumstances and personalities. 26. Med. Soc. 2:68–75, 215–17, 314–17. For the lower title of shofet, see ibid., 2:315–16. 27.  This is explicitly mentioned in the draft of the appointment document of the Palestinian Gaon; see Halper 354 verso line 10, ed. Goitein, Palestinian Jewry, 52–60. Eleventh-­century legal documents from the court of Fustat often declare its appointment by the “great court,” i.e., the Palestinian academy and its head; see Med. Soc. 2:9n8 (several documents can be added to the list). Whether the academy also appointed leaders in other localities in Egypt is less clear. However, at least when it comes to Alexandria the fact that the draft for the Muslim reappointment deed for Yosef b. Yeshuʿa (the judge of Alexandria in the second quarter of the eleventh century) lists the Palestinian geonim under which Yosef served indicates that these geonim appointed him. Indeed, his son, Yeshuʿa b. Yosef, who succeeded him in office, was titled ḥaver by the yeshiva already in his father’s lifetime; see Frenkel, “The Compassionate and Benevolent,” 57–60. 28. The first known evidence for this change is from 1080; see Cohen, Jewish Self-­ Government, 174. 29. On Karaite courts, see Zinger, “A Karaite-­Rabbanite Court Session,” 98*–102*, and the literature cited there. On Babylonian courts, see Zinger, “Introduction to the Legal Arena,” 92n19. 30. As the central Jewish court of Egypt, the composition of the Fustat court seems to have been somewhat different. According to Goitein, two professional judges, one of the Palestinian congregation and the other of the Babylonian congregation, sat regularly in the Fustat court. In particularly difficult cases they were joined by the professional judge of Cairo; see Med. Soc. 3:314. 31.  T-­S NS 320.45, ed. Goitein, Palestinian Jewry, 77–78. The document is a draft prepared by Jews to be submitted to the Muslim authority, who would then approve it and produce an official deed of appointment. 32.  Beyond T-­S NS 320.45 and Halper 354 verso already mentioned in the notes above, see T-­S Ar. 38.93, ed. Khan, Arabic Legal and Administrative Documents, doc. 121, and Conrad, “A Nestorian Diploma of Investiture.” 33. Libson, “Legal Autonomy.”

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34.  Cases of petty violence between Jews were also usually brought before Jewish courts, as it was in the interest of all parties to deal with the matter “in house.” 35. For cases in which we hear of flogging in a Jewish context, see Krakowski, Coming of Age, 79n31. For a later case from Jerusalem, see Shweka, “‘And Everyday They Make Quarrels,’” 22–23. The fact that a Jew complained to the Muslim ruler that another Jew uses a leather strap (reṣuʿa) “to beat Jews like the ruler!” seems to corroborate that corporal punishment was regularly in the hands of the Muslim state. For an earlier period, see Aptowitzer, “Malqot u-­makat mardut bi-­teshuvot ha-­geonim.” 36.  Frenkel, “The Compassionate and Benevolent,” 235–38. For an example, see T-­S 16.231, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 29, discussed further below. 37. On fines, see Med. Soc. 2:110, 330–31. For a rare hint of a punitive fine, see Frenkel, “The Compassionate and Benevolent,” 235. It is possible that the lack of punitive fines had to do with the Talmudic ruling that fines are not imposed in Babylonia since fines can be imposed only by a properly appointed court in Palestine; BT Bava Qama 15b, and Assaf, Punishments After the Sealing of the Talmud, 17–18. However, for this explanation to be convincing I would like to see some direct evidence that in Egypt they followed such a ruling as in other diasporas we do find punitive fines. Below I offer another explanation. See also Kanarfogel, “The Adjudication of Fines.” 38. On the ban, see Med. Soc. 2:331–33. Theoretically ḥerem is harsher than nidduy. For the Mishnaic, Talmudic, and geonic discussions about them, see Libson, “Determining Factors in Herem and Nidui,” “The Use of ‘Gezerta,’” and “The Ban and Those Under It.” It is important to distinguish these instruments from the “general ban” (ḥerem setam), which was a procedural rather than a punitive tool; see idem, “The Origin and Development of the Anonymous Ban (Herem Setam).” 39. Frenkel, “The Compassionate and Benevolent,” 227–34; Yagur, “Excommunication and Apostasy.” See also Weitz, Between Christ and Caliph, 126–28. 40. Rustow, Heresy and the Politics of Community, 204–6. 41. Goitein suggested that the numerous acknowledgments and releases in the Geniza that do not contain an explicit mention of mediation should be considered to be the result of court decision; see Med. Soc. 2:335. Goitein’s suggestion is ingenious, but problematic for a variety of reasons, as I explain in “Women, Gender and Law,” 31–36, and “Introduction to the Legal Arena,” 98–99. See also Ackerman-­Lieberman, “Commercial Forms and Legal Norms.” 42. On the elders, see Med. Soc. 2:58–61, 342, his “The Local Jewish Community,” 155–58, and Ben-­Sasson, Qayrawan, 326–29. From the few cases in which the identity of such elders is given, it is clear that they were respectable members of the community and often served as members of the court; see Zinger, “Introduction to the Jewish Legal Arena,” 96n37. See also the role of “good friends” in Gagos and van Minnen, Settling a Dispute, 53. 43. T-­S 16.171, ed. Mann, Texts and Studies, 2:196–98; Bodl. MS Heb. d66.7 (discussed below); and Zinger, “A Karaite-­Rabbanite Court Session,” 105n27. 44. Liphschits, “The Procedural Limits of Compromise (Pesharah).” On the common practice of compromise in Muslim courts, see Müller, “Settling Litigation Without

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Judgment.” See also Gagos and van Minnen, Settling a Dispute, 40–46. See more in the conclusion of this chapter. 45. See, for example, Mosseri VII.23, ed. Bareket, Jews of Egypt, doc. 67 (and discussed in the next chapter); CUL Or. 1080 J276, ed. Zinger, “Women, Gender and Law,” doc. 19 (discussed more in Chapter 4); T-­S 12.242, the part edited in Zinger, “Challenges to the Local Communal Leadership.” 46. Notice the almost complete lack of responsa of Palestinian geonim. 47.  For an example, see T-­S 8J6.8 + T-­S 13J30.3, ed. Zinger, “Seven Legal Documents,” doc. 1 and examined in Chapter 4. 48. This description concerns the yeshiva in its eleventh-­century form. For what the yeshiva was (or was not) in earlier centuries, see the bold and revisionist study of Krakowski, “Byzantine Judaism in Early Islamic Palestine.” I would like to thank Krakowski for sharing her study with me before its publication. In this study, Krakowski critiques the comprehensive study of the yeshiva in Gil, A History of Palestine, 490–527 (§728–§761). On the rise of the Head of the Jews, see Cohen, Jewish Self-­Government. 49. For the traditional view, see Elon, Jewish Law, 1466, 1501. For the situation in Egypt, see Joshua Blau’s comment in Maimonides, Responsa, 3:13n1. In Islamic law the basic fatwa is the one presented by laymen, rather than by a person in a judicial or administrative capacity; see Calder, “The Social Function of Fatwas.” 50. Most Geniza petitions request charitable assistance; however, a substantial number of petitions request assistance in a legal dispute. 51. For examples, see below. Since my interest is in social function rather than formal typology, I think more in terms of verbs (petitioning, querying) than in terms of nouns (a petition, a query). Petitions and legal queries can have “diplomatic” definitions (if they contain such and such a formula or structure or follow a certain graphic layout). However, because there is substantial cross-­influence between petitions and queries and because we also find the social function of petitioning and querying carried out in private letters, it is more useful to identify petitioning and querying by the type of claim they make and the kind of authority they seek to obtain. A petition usually tells a story, combines a claim of justice and mercy, and asks a political figure for his involvement in the case. A legal query also tells a story but then asks a legal authority to make a ruling on the basis of the story. 52. For examples, see T-­S 10J6.11, discussed below; CUL Or. 1080 J38, ed. Goitein and Friedman, Abraham Ben Yijū, doc. III, 55; and T-­S 8J17.20, ed. Goitein and Friedman, Abraham Ben Yijū, doc. III, 55a. 53. The relationship between the different legal venues could be complementary or competitive depending on the occasion. For an important study that portrays the relationship between qadis and muftis as essentially complimentary, see Powers, Law, Society, and Culture in the Maghrib. Within the much smaller Jewish communities these venues could even involve the same people. Judges sat on cases and occasionally also received petitions and legal queries. Heads of the Jews received petitions, sometimes answered queries, and stood at the top of the Jewish court system. For me the key point is that the plurality of venues facilitated choice for litigants, even if the relationship between the venues could be complementary and involve the very same people.

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54. See T-­S 12.371, ed. Gil, In the Kingdom of Ishmael, doc. 775; T-­S 13Ja1.1, ed. Gil, Palestine, doc. 597; and T-­S 10J10.13, ed. Zinger, “Social Embeddedness.” 55. BT Sanhedrin 7b. 56. Lifshitz, “The Legal Status of the Responsa Literature.” 57. Bodl. MS Heb. b11.9, unpublished, offers an interesting example. This is a letter written by the precursor to the office of the Head of the Jews, Yehuda b. Saʿadya to Yefet ha-­mumḥe b. ʿEli, the local Jewish leader of the small town of Ṣahrajt. Yehuda was approached by a Jewish government treasurer (jahbadh) regarding an inheritance litigation involving the latter’s widowed sister. Yehuda asks Yefet why the matter has not been resolved and demands that it be resolved either through a compromise (ṣulḥ) or by the taking of an oath. On this document, see Cohen, Jewish Self-­Government, 164. 58. See also Baldwin, “Petitioning the Sultan in Ottoman Egypt.” 59. The traditional scholarly view has been that “almost all the Jews—apart for some exceptions—used Jewish courts to settle their affairs. Jewish law dominated the diasporic communities and everyone were judged according to the law of the Talmud.” Assaf, The Geonic Period and Its Literature, 19. This view has been disproven by numerous recent studies, the most important one of which is Simonsohn, A Common Justice. 60. Tyan, Histoire de l’organisation judiciaire; Lev, The Administration of Justice; Tillier, L’invention du cadi; Masud, Peters, and Powers, “Qāḍīs and Their Courts.” 61. For a rare and late exception, see ENA 4100.17, unpublished. On the legal affiliation of qadis in medieval Egypt, see Rapoport, “Legal Diversity,” and Lev, The Administration of Justice, 83–110. 62.  Further research is needed on what is meant by sulṭān, for a beginning, see Zinger, “Jewish Women in Muslim Legal Venues,” 169n35, and Zinger, “Introduction to the Legal Arena,” 113–14. I am in general agreement with Lev, The Administration of Justice, 247–50 regarding sulṭān. 63. Masud, Messick, and Powers, Islamic Legal Interpretation. 64. Zinger, “Jewish Women in Muslim Legal Venues,” 172–79. See also Frenkel, “The Compassionate and Benevolent,” 241. 65. Simonsohn, A Common Justice, 57–60, 184–87, 193–95. See also Weitz, Between Christ and Caliph, 123–44. 66. Libson, “Legal Autonomy.” 67. Med. Soc. 2:394–98. 68. Beyond the example that opened this chapter, see T-­S 13Ja1.1, ed. Gil, Palestine, doc. 597; T-­S Ar. 50.197, ed. Friedman, “Government Intervention in Qayrawān”; T-­S 24.74, ed. Zinger, “‘See the Controversy These People Did’”; T-­S NS J319 + T-­S NS 190.108 + T-­S NS 190.114, unpublished ( joined with Craig Perry); Maimonides, Responsa, no. 73, and the discussions in Med. Soc. 2:402; and Ben-­Sasson, Qayrawan, 311–12. 69.  Simonsohn, A Common Justice, 63–89. See also Lev, The Administration of Justice, 6–7. 70. See, for example, al-­Qarāfī, The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers. No comparable work exists in medieval Jewish Law.

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71.  The following is based on a much more detailed study of mine; see Zinger, “Toward a Social History of Jewish Responsa in Medieval Egypt.” Meanwhile, see Lifshitz, “The Legal Status of the Responsa Literature.” 72. Ackerman-­Lieberman, “One Question, Two Answers.” 73. Friedman, “New Fragments from the Responsa of Maimonides,” 115–20. 74. For a legal record that functions as responsa and is explicitly called a responsum, see T-­S 20.152, ed. Gil, Palestine, doc. 395. For a legal record that functions as responsum while not being called one, see ENA 2727.31, ed. Zinger, “‘What Sort of Sermon Is This?’” and AIU VII D 7, ed. Goitein and Friedman, Joseph Lebdī, doc. I, 23a. For queries appearing in a letter, see CUL Or. 1080 J38, ed. Goitein and Friedman, Abraham Ben Yijū, doc. III, 55; T-­S 18J4.3, ed. Goitein, The Yemenites, 124–29; and CUL Or. 1080 J281, ed. Friedman, Jewish Polygyny, 326–30. In T-­S 12.371, ed. Gil, Ishmael, doc. 775 the query is presented in the first person and is written in the verso of a private letter. 75. “May his reward be doubled by heaven” is an example of a responsa formula often found in petitions; for its original logic in responsa, see Goldziher, “Über eine Formel.” “To our lord belongs the bestowing of favor by replying” (fa-­li-­sayyidinā l-­faḍl f ī l-­murājaʿa) is a formula found in responsa that clearly echoes the raʾy formula of petitions; see Friedman, “The Aguna, the Judge and the Jurisconsult,” and Khan, Arabic Legal and Administrative Documents, 314–16. 76.  For a response in a letter, see T-­S 12.397 + T-­S AS 155.329 + T-­S G1.5a, ed. Friedman, “Responsum by the ‘Rav’ Judah b. Joseph ha-­Kohen.” For a responsum with a literary autobiographical opening, see CUL Or. 1080.15.74, ed. Friedman, “R. Yehiel b. Elyakim’s Responsum.” T-­S G2.59 could have been considered a short halakhic discussion if it weren’t for T-­S K25.285 explicitly mentioning mas’ala; both are edited in Goitein and Friedman, Abraham Ben Yijū, doc. III, 29b–c. Famously, several large-­scale geonic compositions like The Epistle of Sherira Gaon and Seder Rav Amram Gaon are formally speaking responsa. 77.  For example, see the dossier of the complex lawsuit of Jekuthiel al-­ḥakīm vs. Joseph Lebdī, Goitein and Friedman, India Traders of the Middle Ages, 167–210, or T-­S 24.74, ed. Zinger, “‘See the Controversy These People Did.’” 78. For one example out of many, see T-­S 13J1.12, ed. Bereket, Jews of Egypt, doc. 103. See also the beginning of the arbitration section (“After many words have been said and many moves have been made”) in Gagos and van Minnen, Settling a Dispute, 53. 79. Med. Soc. 2:337–38, 5:206, 211. For a discussion of similar contemporary dynamics, see Rosen, The Anthropology of Justice, 11, 16, 22, 32. 80. Goldberg, “The Courts, the Qadi, and the ‘People,’” 37. 81. ENA 4010.43v, ed. Bareket, Jews of Egypt, doc. 100. The date can be known from ENA 4010.44, which belonged to the same court notebook. The relationship between Sitt al-­Dār and Bishr is unclear. 82. The court also seems to have suspected his claim and added an uncharacteristic “according to what he says” to the text. 83. For other cases, see ENA 4011.60, ed. Gil, Documents of the Jewish Pious Foundations, doc. 31, with important corrections in Blau, “Some Textual Comments to M. Gilʼs

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Documents of the Jewish Pious Foundations,” 209; and T-­S Ar. 49.166, ed. Gil, Palestine, doc. 388 (case beginning in C line 21). 84. ENA NS 17.10v, ed. Friedman, Jewish Polygyny, doc. VIII-­2, and Gil, Palestine, doc. 389. 85. For a fuller discussion of the case, see Zinger, “Women, Gender and Law,” 165–68, 212–13. Below, I merely cite the pertinent documents. 86. Bodl. MS Heb. b11.3, ed. Friedman, Jewish Polygyny, doc. I-­10. 87. Correcting T-­S 8.131 according to the first option suggested by Friedman, Jewish Polygyny, 79n3. 88. This is T-­S 10J6.11, ed. Weiss, “Halfon,” doc. 138. 89.  Bodl. MS Heb. d66.7, ed. Weiss, “Halfon,” doc. 8, and also Friedman, Jewish Polygyny, 79n2. Two days after this session, Sitt al-­Kull’s father came to the court to record the exact day on which his daughter had been expelled from the house (and from which her husband needed to pay the maintenance). T-­S 8J33.11 + T-­S 12.557 and ENA NS 21.9, both unpublished, also belong to this cluster of documents. From T-­S 8J33.11 line 5 it appears there was a business partnership (shirka wa-­muʿāmala) between Ṣedaqa, Berakhot, and his daughter, which had to be dissolved with the dissolution of the marriage. 90. For the dinar-­dirham exchange rate around this time, see Med. Soc. 1:380–81. 91. Halper 400, unpublished. 92. T-­S 13Ja1.1, ed. Gil, Palestine, doc. 593; ʿAodeh, “Eleventh Century Arabic Letters of Jewish Merchants,” doc. 61. See important discussion and partial translation in Med. Soc. 3:75–76. My presentation here builds on my lengthier discussion of this case in “Social Embeddedness,” 152–55. 93. On Abraham b. Isaac, see Cohen, Jewish Self-­Government, 108; Friedman, Jewish Polygyny, 255–61. 94. See T-­S Misc. 27.23, ed. Friedman, “Master and Slave Girl,” 61-­63 and Yagur, “The Geopolitics of the Jewish Community of Ascalon,” 64–65, 67–74. 95. Cohen, “The Jewish Community of Ashkelon”; Yagur, “The Geopolitics of the Jewish Community of Ascalon,” 67–74. 96. The next several paragraphs appear almost verbatim in Zinger, “Introduction to the Legal Arena,” 116–20. 97. CUL Add. 3420–3419, translated in Goitein, “A Jewish Business Woman,” 227 (I have used a part of Goitein’s translation). 98. T-­S 18J1.23, unpublished but mentioned in Med. Soc. 3:487n146. See also Maimonides, Responsa, no. 233 and Bodl. MS Heb. e94.28, unpublished but mentioned in Goitein and Friedman, India Traders of the Middle Ages, 355n14. In 1104, a defendant demanded that the witnesses against him be summoned to court, but the Jewish judge replied: “You bring the witnesses (to court)! How is this possible for me!? When this (session?) is finished, were you to do so”; see T-­S 24.74, ed. Zinger, “‘See the Controversy These People Did.’” 99. Maimonides, Responsa, no. 15. 100. T-­S 8J5.8, trans. Med. Soc. 3:196 (with a slight change). 101. Maimonides, Responsa, no. 14; this case opens Chapter 4.

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102. T-­S 12.242; this part of the document will be published in Zinger, “Challenges to the Local Communal Leadership.” See also Zinger, “Between the Muslim State and Individual Agency.” 103. CUL Or. 1080 J276, ed. Zinger “Women, Gender and Law,” doc. 19 (discussed more in Chapter 4). 104. Mosseri VII.27 recto, ed. Bareket, Jews of Egypt, 106–9. 105. See, for example, T-­S 10J14.30, mentioned in Med. Soc. 2:168n55; CUL Or. 1080 J86, mentioned in Med. Soc. 2:368–69n32; and T-­S Ar. 30.53, all unpublished. ENA NS 2.20, trans. in Med. Soc. 4:14, deals with a verbal altercation and T-­S 13J21.22, unpublished, with threats to employ violence. Some of these cases led to litigation in court and others to an appeal to communal leadership for legal intervention. 106. Maimonides, Responsa, no. 362. For other examples, see T-­S 16.231, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 29. 107. T-­S 10J16.6, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 54. 108. For turning people against an opponent, see T-­S NS J485 + T-­S 8J20.16 + T-­S NS 283.96, recto 18–19, ed. Zinger, “‘One Hour.’” For turning people against the local judge, see T-­S 12.242, recto 21, ed. Friedman, Jewish Polygyny, doc. VI-­6. For negative rumors spread against a judge by his enemies, see CUL Add. 3341, unpublished but mentioned in Med. Soc. 5:199n77. 109. Spreading negative information on one’s opponent was a common tactic in personal and communal conflicts; see Yagur, “Religious Identity and Communal Boundaries,” chap. 3, section 3 and chap. 5, section 3. The way this tactic featured in the legal arena has to be examined as part of this broader trend. 110. See, for example, Bodl. MS Heb. d66.133, ed. Zinger, “Seven Legal Documents,” doc. 2; T-­S 18J2.13, partially edited in David, “Divorce Among the Jews,” 206–7, 302–3; T-­S 12.242, recto 4–6, to be published in Zinger, “Challenges to the Local Communal Leadership”; NLR Yevr.-­Arab. I 1701, ed. Zinger, “A Scandal in the Karaite Community of Cairo”; and T-­S 10J21.14 + T-­S 8J32.9, unpublished, joined with the Friedberg Project’s join suggestion. There seems to have even been a formula to express such procedure (lammā kathurat al-­shanāʿāt ʿalā—“when rumors increased about”); see Zinger, “Between the Muslim State and Individual Agency,” around note 35. 111. For two examples, see PER H 160, ed. Gil, Palestine, doc. 331. 112. ENA 4011.17, ed. Gil, Palestine, doc. 537, translated to English in Cohen, Voice of the Poor, doc. 49. For other examples, see T-­S NS J68, trans. Med. Soc. 5:201 (a husband giving his wife a bad name so she would ransom herself from the marriage); ENA NS 16.30, recto 3 and 9, ed. Friedman, Jewish Polygyny, doc. VIII-­5 (a husband slandering his wife so he could divorce her without compensation and marry another wife); T-­S Ar. 49.166, verso 10, ed. Gil, Palestine, doc. 388 (a husband claiming that his wife was not a virgin when he married her several years earlier); and T-­S 13Ja1.1, recto 15–16, ed. Gil, Palestine, doc. 593 (rumors spread against a man who planned to marry a woman now betrothed to another). 113. See the many items intended to silence one’s enemies in Bohak and Saar, “Genizah Magical Texts.” T-­S K1.165 (nos. 12 and 34 in the article) specifically mentions binding

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Notes to Pages 32–34

the tongue of a Muslim judge. T-­S AS 145.24 (nos. 58 and 118 in that article) mentions finding favor in the eye of a Jewish judge, but here it looks like the judge was simply the father of the woman the commissioner of the amulet coveted. See also Shaked and Elitzur-­ Leiman, “An Aramaic Amulet for Winning a Case.” 114. In Geniza records, as elsewhere, it seems that the party which first submitted the case to a certain institution often enjoyed an advantage in that institution; see “the power of the first word” in Lauer, “Jewish Law and Litigation in the Secular Courts,” 128; Zinger, “Women, Gender and Law,” 112–13; and Rosen, Islam and the Rule of Justice, 47. 115. For a detailed examination of one case involving both Muslim and Jewish venues, as well as extralegal tactics, see Zinger, “‘One Hour.’” 116. Also Leviticus 19:15: “You shall not render an unfair decision: do not favor the poor or show deference to the rich.” 117. MT Sanhedrin, 23:3; translation in Maimonides, The Code of Maimonides, Book Fourteen: The Book of Judges, 68–69. For Muslim debates on this issue, see Tillier, “Qadis and Their Social Networks.” 118. See Bourdieu, “The Force of Law.” 119.  The authority and power conveyed by adhering to rabbinic forms, even while reflecting Islamicate substance, is a central point in Krakowski, Coming of Age, chap. 1. 120.  T-­S 10J25.3, recto 15–16, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 57; T-­S 18J2.5, ed. Zinger, “Seven Legal Documents,” doc. 3; NLR Yevr.-­Arab. I 1701, ed. Zinger, “A Scandal in the Karaite Community of Cairo.” In T-­S 16.305, verso lines 10–12, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 32, the reconciliation took place in a local tavern. Muslim judges also occasionally held court in their private residence. 121. See Zinger, “Women, Gender and Law,” 26. The scarcity of direct references to legal sources has also been observed in Islamic courts. See Mallat, Introduction to Middle Eastern Law, 83. Goitein went so far as to claim that “it was not so much the content of the law applied as the authority administering it which gave the parties the feeling that they were judged according to the law of the Torah”; Med. Soc. 2:334. However, see the argument of Krakowski mentioned in note 119 in this chapter. I hope to conduct a study on the handful of cases in which we see litigants bringing up in court specific references to Jewish texts. See T-­S 10J17.22, discussed in Perry, “Daily Life of Slaves,” 107, 109; ENA 2558.29; and T-­S NS 224.22+29+33 ( joined by Amir Ashur), all unpublished. 122. ENA NS 19.14 + ENA 4010.7, lines 6–7, ed. Friedman, “The Ransom-­Divorce,” 289–93 (the translation is Friedmanʼs). 123.  “The members of the Jewish courts were, as a rule, personally known to the parties either from the synagogue or otherwise, and, in any case were regarded by them as people of their own kind. Finally, since the Jewish court was composed of three or more members, litigants themselves frequently had experience of the bench, which naturally made them more inclined to entrust their cause to an authority and a procedure with which they were familiar”; Med. Soc. 2:312. The last part of this passage anticipates the argument I am making in this section. I discuss the gender implications of this passage in the next chapter.

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124. Occasionally a plaintiff would appoint an agent to act on his behalf, but this was done usually when the person could not attend the court in person. Such agents were usually men knowledgeable in Jewish law and in court practice, but they were not specialists, and more importantly their use did not lead to a professionalization that would hinder others from participating. The significant exception is women, who often appointed a representative even when they were present in the same city (on this, see the next chapter). 125. The experiences of women in court are explored in the next chapter. The only segment of the adult Jewish community that we rarely find acting in court is slaves. For an exception, see T-­S 12.582, ed. Goitein, “A Document from the African Port ʿIdhab.” 126. Al-­Ḥarīrī, Impostures, 75. 127. Psalms 71:4: “My God, rescue me from the hand of the wicked, from the grasp of the wronger and the lawless” (JPS translation with a little change). Al-­Ḥarizi, Maḥberot Itiʾel, 69. This advice is not found in the parallel maqāma in al-­Ḥarizi’s Taḥkemoni. However, this advice also opens a maqāma in the mahberot ʿAzriʾel ben Yossef and a maqāma by Shelomo Ibn Ṣaqbal, see Huss, “The Maqama of the Cantor,” 232. 128.  Bodl. MS Heb. e105.38, unpublished. The translation is by Alan Elbaum, to whom I am grateful for bringing this document to my attention. 129. T-­S 8.86, unpublished, but mentioned in Med. Soc. 2:573n30. 130. On Muslim judges and ties of ḥāja, see Tillier, “Qadis and Their Social Networks.” 131. NLR Yevr.-­Arab. I 1700 3, unpublished. See the discussions in Med. Soc. 3:282, 358n212; Zinger, “Jewish Women in Muslim Legal Venues,” 171, 174–75; and Ben-­Sasson, “The Judge According to His Notebook.” I would like to thank Ben-­Sasson for sharing his study with me before its publication. 132.  T-­S Ar. 50.197, ed. Friedman, “Government Intervention in Qayrawān.” For this meaning of ʿināya, see Rustow, “Patronage in the Context of Solidarity and Reciprocity,” 31n35. 133. Bodl. MS Heb. b11.9, unpublished but discussed in Med. Soc. 1:249n115, 2:34n54. 134. See T-­S 18J2.5, examined in Chapter 2, and T-­S 8J6.8 + T-­S 13J30.3, examined in Chapter 4; both are published in Zinger, “Seven Legal Documents,” docs. 3 and 1, respectively. 135. Abraham b. Isaac was maghribī, Joseph was probably a maghribī, and he had the query sent with one of his maghribī allies. Furthermore, whoever was supposed to make the final ruling was either a maghribī or closely allied to the maghribīs. See the discussion in Zinger, “Social Embeddedness,” 153. For a case in which a ruling on a query must be kept a secret from any Sicilian in Fustat, see T-­S 12.371, ed. Gil, Ishmael, doc. 775. 136. Abraham had family connections to Ashkelon (see Friedman, Jewish Polygyny, 255–61), and it is possible that those are what lay behind these ties. 137. T-­S 13Ja1.1; see fuller discussion in Zinger, “Social Embeddedness.” 138. On Yefet b. Ḥalfon nothing else is known. On Elijah, see Motzkin, “Judge Elijah and His Family.” 139.  For fatwa in the sense of legal query, see Friedman, “Fatwas for Abraham Maimonides.”

172

Notes to Pages 37–40

140. ḥasab idlāl ʿalā tafaḍḍul al-­mawlā; see Friedman, Dictionary, 135. 141. T-­S 8J17.25, unpublished but mentioned in Friedman, “Fatwas for Abraham Maimonides,” 343–44. 142. It is possible that Yefet submitted a query regarding a matter of ritual that had no effect on Yefet’s standing in the legal arena. However, I find it unlikely that in medieval Egypt an ordinary man would submit a personal query about a purely academic or ritualistic issue. 143. Such favorable intervention is hinted at in T-­S 6J7.23, to be edited in Zinger, “More than Meets the Eye,” doc. 6. 144. On him, see Med. Soc. 2:515, no. 30. 145. I explore intercession through middlemen at greater length in “Toward a Social History of Jewish Responsa.” 146. On the religious meaning of intercession, see Wensinck, Gimaret, and Schimmel, “Shafāʿa,” in EI2. 147. See Rustow, “Intercession”; Marmon, “The Quality of Mercy”; Herrero, “L’intercession (shafāʿa) sous les Omeyyades d’al-­Andalus”; van Berkel, “Political Intercession”; and Diem, Fürsprachebriefe in der arabisch-­islamischen Welt. 148. I expand on these observations in “Toward a Social History of Jewish Responsa.” 149. On the logic and language of patronage and reciprocity, see Rustow, “Benefaction (Niʿma), Gratitude (Shukr), and the Politics of Giving and Receiving” and “Formal and Informal Patronage.” 150. See Rustow, “Patronage in the Context of Solidarity and Reciprocity.” Rustow builds on the work of Mottahedeh, Loyalty and Leadership in an Early Islamic Society. 151.  I could have demonstrated the social and cultural embeddedness of the legal arena with other documents such as: T-­S 13J21.25, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 71; SPIOS D 55.4 and TS 8J17.29, both unpublished but mentioned in Friedman, “Fatwas for Abraham Maimonides,” 343–44, 347; TS 13Ja1.1, ed. Gil, Palestine, doc. 597; and T-­S 12.371, ed. Gil, Ishmael, doc. 775. 152. This section is based on Zinger, “Social Embeddedness,” 158–62. 153. On Shela b. Mevasser, see Frenkel, “The Compassionate and Benevolent,” 91–107. On the Ben Naḥum family, see Med. Soc. 5:553n229. On Surūr and the Ben Sabra family, see Zinger “Social Embeddedness,” 159. 154. Shabbat is mentioned in a letter written by Surūr’s other son-­in-­law, Mevorakh b. Yizḥaq; see CUL Or. 1080 J264, recto 24, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 100. 155. By carrying letters of recommendation, such as the one in our document, these wandering paupers also served as a useful communication network between the Jewish elite; see Frenkel, “The Compassionate and Benevolent,” 300–301 and “Pilgrimage and Charity.” See also Cohen, Poverty and Charity, 72–87. 156. mā ziltu alṭuf bihi wa-­bi-­ʾikhwatihi—I discuss the gendered aspects of such persuasion in the next chapter. 157. On his identity, see below.

Notes to Pages 40–45

173

158. T-­S NS J120 + T-­S Misc. 28.11, ed. Zinger, “Social Embeddedness.” This document is also edited (without the join and with mistakes) in Bareket and Beeri, Eli ben Amram, 273–75. 159. See Frenkel, “The Compassionate and Benevolent,” 297–301. 160. On Eli b. ʿAmram, see Bareket and Beeri, Eli ben Amram. 161. Shela’s uncle is mentioned also in the margins of T-­S NS J120. In all probability, this was Bashīr of the Ben Naḥum family; see Frenkel, “The Compassionate and Benevolent,” 92. 162. T-­S 13J17.5, recto 6–13, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 67. 163. T-­S 13J17.5, recto margins 19–27. 164. On the use of social isolation in women’s letters in the Geniza, see Chapter 4 and Zinger, “The Use of Social Isolation.” 165. On this see Frenkel, “The Compassionate and Benevolent,” 266. 166. T-­S 20.23, Fustat 1049; Bodl. MS Heb. a3.43, a ketubba, Fustat 1059; IOM (old: INA) D 55.8, Fustat 1061. The first two documents are unpublished and the third is published in Ackerman-­Lieberman, The Business of Identity, 253–56. 167.  T-­S 16.231, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 29, partially translated in Med. Soc. 2:371. For this type of punishment, see Lange, “Legal and Cultural Aspects of Ignominious Parading (Tashhīr)” and Rowson, “Reveal or Conceal.” See also Zinger, “Introduction to the Legal Arena,” 114–15n109. 168. See the cases cited in notes 131–33 in this chapter. On non-­Muslims employed by medieval Muslim states and Muslim attitudes toward them, see Yarborough, Friends of the Emir. 169. On him, see Cohen, Jewish Self-­Government, 130–31. 170. CUL Or. 1080 J39 + BL Or. 5566B.5. I plan to publish this interesting letter in a study on the use of Jewish legal documents in Muslim courts. 171. I presented a paper on ʿaṣabiyya in Geniza texts in the “Acts of Protection in the Early Islamic Empire” workshop at Leiden University in January 2019 and hope to publish a fuller study of it in the future. 172. ENA NS 22.7, unpublished but mentioned in Med. Soc. 5:89n220. 173. For a graphic depiction, see Zinger, “Introduction to the Legal Arena,” 123. 174. Krakowski, Coming of Age, 68–109. 175.  The connection between the competitive arena and the power of litigants is most apparent in the cases in which litigants made explicit threats to convert or appeal to Muslim authorities; see, for example, T-­S 8J21.1 and T-­S 20.93, both edited in Yagur, “Religious Identity and Communal Boundaries,” docs. 20 and 24, respectively, and see the cases in Zinger, “‘She Aims to Harass Him,’” 170. 176. Ackerman-­Lieberman, “Commercial Forms and Legal Norms” makes a similar connection between Muslim competition and the preference for compromise. 177. About the care to keep litigants as negotiating members of society, see Rosen, The Anthropology of Justice. 178.  Indeed, see the frustration expressed in T-­S 10J25.3, ed. Frenkel, ha-­Ohavim veha-­nedivim, doc. 57.

174

Notes to Pages 45–50

179.  Goldberg, Trade and Institutions, 161–62 makes a similar argument regarding Geniza merchants. 180. Admittedly, this part of the argument is speculative as I have not found a “smoking gun” that shows the court demanding compliance to a settlement through middlemen previously used by the litigant. See, however, the recommendation to use the close associates of litigants to convince them to agree to a compromise in Shochetman, Seder ha-­Din, 211. 181. Bourdieu, “The Force of Law.” 182. Goldberg reached a similar conclusion in Trade and Institutions, 162. For a comparison between my findings on marital disputes and commercial litigation, see Zinger, “Women, Gender and Law,” 273–76. 183.  See, for comparison, Peirce, Morality Tales, 143: “It was not an ideal of the premodern Ottoman legal system that its justice be blind. Not until the mid-­nineteenth century was the idea entertained that the law should encounter the individual as a notional entity rather than as a particular combination of social and civil attributes to be scrutinized and entered into the calculus of judgment.” 184. I am grateful for one of the anonymous reviewers of the book for pushing me to overcome my initial reluctance and embark on this short comparative venture. 185. Of course, it is impossible to argue that the picture provided here is unique. I assume that the Jewish legal cultures in North Africa and Iraq were quite similar to that of Egypt, even though in both areas there were yeshivot distinguished for their Talmudic study. 186. Furst, “Striving for Justice,” 20–70. I would like to thank Furst for discussing with me the comparison between Ashkenaz and Egypt. 187. Shoham-­Steiner and Hollender, “Beyond the Rabbinic Paradigm,” 237n3. 188. For the size of the Jewish population of Fustat, see Ben-­Sasson and Zinger, “The Maghrib and Egypt,” 146. 189. Furst, “Striving for Justice,” 24–28. Greater variance meant that on some occasions, Jewish courts in medieval Germany had greater means of coercion, like fines and physical punishment, and even could rule over mixed cases involving Jews and Christians. 190. Ibid., 10. 191. Roth, In This Land, 8. I would like to thank Roth for discussing with me the difference between the Jewish legal cultures of Provence and Egypt. For a general survey on the Jewish courts in Provence, see also Ben-­Shalom, The Jews of Provence, 67–73. 192. Roth, In This Land, 34–48, especially 47–48. 193. Lauer, Colonial Justice, 4–5. 194. Ibid., 112–20. 195. Ruffini, Life in an Egyptian Village, 2, 213. 196. Ibid., 58, 59. See also p. 42: “This is when law becomes personal, a soft and fuzzy web of connections entangling friends and enemies.” 197. Ibid., 58–59, see also 28 and 42. I am not sure how to square this claim with the observation that many of the surviving legal contracts, the “backbone of this legal framework,” are mundane; see p. 52.

Notes to Pages 50–55

175

198. Ibid., 25. 199. Zinger, “Challenges to the Local Communal Leadership.” 200. Ruffini, Life in an Egyptian Village, 203–7. 201.  Ibid., 26. See also p. 173: “There is no such thing as the state, at least as a monolithic block. Much more immediately, there are individuals. . . . The state is the hidden infrastructure, the skeleton giving specific shape to some of the world’s patronage networks.” 202. Indeed, we should not forget the comparison closest to home: the much larger and more prominent Christian population in Egypt, which in this period probably still outnumbered the Muslim population, did not maintain a system of communal courts, and instead relied on Muslim institutions for legal service and documentation; see Weitz, “Islamic Law on the Provincial Margins” and the other references mentioned in note 6 in this chapter. My interest here is merely to highlight the Jewish oddity, not to explain the decline of Coptic legal culture or Christians’ use of Muslim venues. It is certainly possible that Jewish insistence on maintaining communal legal institutions stemmed from being associated with central aspects of Rabbinic Judaism, but the dynamism and practical logic of how law functioned in daily life had much to do with the social aspects of the legal culture, as I have argued in this chapter.

Chapter 2 1. Bodl. MS Heb. d66.133r, ed. Zinger, “Seven Legal Documents,” doc. 2. 2. Simon and Ahn-­Redding, The Crimes Women Commit, especially 71–90; Walklate, Gender, Crime and Criminal Justice, 178–85; Feinman, Women in the Criminal Justice System. 3.  Allen, “Rendering Them Harmless”; Eaton, “The Question of Bail”; Gilbert, “Women, Race, and Criminal Justice Processing”; Morash, Understanding Gender, Crime, and Justice, 133–40, 205–8. 4. See Chambers and Millar, “Proving Sexual Assault”; Simon and Ahn-­Redding, The Crimes Women Commit, 73–74; Morash, Understanding Gender, Crime, and Justice, 133, 141–43; and Calavita, Invitation to Law & Society, 37. See also Valler, Women in Jewish Society, 124–25. 5.  For studies on women in Jewish courts, see Valler, Women in Jewish Society, 103–49; Lamdan, “The Mercies of the Court”; Grossman, “Between Authority and Autonomy”; Shashar, Vanished Men; Furst, “Striving for Justice”; Lauer, Colonial Justice, 126–63; and Kaye, “Protesting Women.” For women in rabbinical courts in modern Israel, see Weiss and Gross-­Horowitz, Marriage and Divorce, and Lubitch, From the End of the World. 6. Margoliouth, “A Jewish-­Persian Law Report”; Abrahams, “An Eighth-­Century Genizah Document”; Amram, “Two Legal Documents.” 7. Notice that Goitein explores the work of the courts in the volume on the community but treats women in court in the volume on the family.

176

Notes to Pages 55–56

8. Around the same time, Ottomanists were making similar discoveries in Ottoman legal records. In fact these discoveries were connected as Goitein’s work is explicitly cited in the landmark article on women in Ottoman court records: Jennings, “Women in Early 17th Century Ottoman Judicial Records,” 56n5. 9. This was part of a general trend in Goitein’s writing to depict women as strong and active; see Zinger, “Goitein and Strong Women.” 10. Since the husband’s property is mortgaged against the debt of the ketubba, the wife’s consent is required for his actions. Since he is responsible for any loss of her dowry, he needs to approve her dealings with it. 11. Here Goitein is clearly going too far because while men occasionally nominated representatives, the records clearly show that women did so with greater frequency and for gender-­specific purposes. 12.  All quotes are from Med. Soc. 3:332–36. See also Goitein, “The Position of Women.” In his Geniza lab, Goitein had a card for “women troubling authorities with their little affair(s),” roll 22, 00725 verso. 13. “We find women suing, vouching, taking initiative, resisting and putting obstacles in the way of the husband obtaining a divorce until they receive their full claims”; Bareket, “Books of Records,” 54–55. See also Kraemer, “Women Speak for Themselves,” 191, and Friedman, “Ethics,” 95. 14. David, “Divorce on the Wife’s Initiative,” 56. 15.  Friedman, “Halakha as Evidence of Sexual Life,” 94, and following him Levine Melammed, “The Influence of Moslem Society on Jewish Women,” 42, and Molad-­Vaza, “Clothing in the Mediterranean Jewish Society,” 297. However, it has been repeatedly shown that Muslim women, in different locations and periods, also made abundant use of the courts; see Tillier, “Women Before the Qāḍī Under the Abbasids,” 280–81, 293; Rapoport, Marriage, Money and Divorce, chaps. 3–4; Shatzmiller, Her Day in Court, 1; Jennings, “Women in Early 17th Century Ottoman Judicial Records,” 59; and Peirce, Morality Tales, 2. Coptic women also appear abundantly in contemporary legal documents; see Vanthieghem and Weitz, “Monks, Monasteries and Muslim Scribes.” Indeed, it is hardly imaginable that Jewish women would have appealed as commonly as they did to Islamic courts if Muslim women did not regularly appear before such forums. On Jewish women’s use of Muslim legal venues, see Zinger, “‘She Aims to Harass Him.’” 16. Med. Soc. 2:312. Weiss, “Halfon,” 1:59–61 repeats these words almost verbatim. For another example consider the following statement: “Geniza papers convey the impression of an extremely intensive communal life. The small size of the communities made it possible for everyone to take part in the deliberations, and often in the decisions made for the common good”; see Goitein, “Jewish Society and Institutions Under Islam,” 184. Goitein’s “everyone” is again the middle class and does not include women, children, slaves, or the poor. 17.  Indeed, elsewhere Goitein writes that “it must be remembered that the courts were, to a large extent, a sort of merchants’ tribunals. This was also their strength: the presiding judges were themselves prominent merchants, well versed in the (legal) questions which they debated and thoroughly experienced in the upheavals of maritime trade” (The Yemenites, 57).

Notes to Pages 56–57

177

18. This is probably why women were often identified to court by a third party, but men’s identity is simply indicated by their name; see more below. 19. For this common practice, see Chapter 3. 20.  T-­S 13J6.17, unpublished. Since the writer wrote different parts of the text in different margins, I write here the text as I reconstruct it: ‫ב חתי יפכר יכרגהא פי חילה‬/‫ר‬/‫הדא רגל יתצאהר בעלם בסבב גלוסה פי אלאחכאם והו צא‬ ‫{חתי} יצרבא בלא תמן שוא ברוטה (