truth is that Rav Mesharsheya’s [explanation] is erroneous. And what is the reason?—[A get enforced by a heathen court] on legal grounds is likely to be confused with [a get enforced by] an Israelite court on legal grounds, but [a get enforced by a heathen court] without proper grounds will not be confused with [a get enforced by] a Jewish court with legal grounds…. Rabbi Tarfon used to say: In any place where you find heathen law courts, even though their law is the same as the Israelite law, you must not resort to them, since it says, These are the judgments that thou shall set before them (Exod. 21:1), that is, “before them” and not before heathens.199
A court cannot issue a divorce in Jewish law. A bill of divorce can be written only upon the express instruction of the husband. If a husband refuses to give such instruction, he may, in certain instances, be coerced by the courts to do so. It is this judicial coercion that is the subject of the talmudic discussion. Some Jews turned to Gentile courts for legal implementation; otherwise, it is unlikely that a discussion about the validity of such a divorce would be found. Despite its general disqualification of a divorce coerced by a non-Jewish court, the Talmud grants such a divorce (get) some validity (“a tincture of a get”): “If enforced by a heathen court on good legal grounds, [the divorce] is invalid but disqualifies [a divorced woman from marrying a member of priestly descent, a kohen].”
It is noteworthy that the Talmud does not challenge the tannaitic position that “a heathen court … may flog a man and say to him, do what the Israelite [authorities] command you.” In addition, following the question of the validity of a divorce issued in a non-Jewish court, the talmudic discussion cites the saying of the tanna Rabbi Tarfon against appeal to non-Jewish courts. While the talmudic discussion before its reference to Rabbi Tarfon focuses on the question of divorce, it now raises a much broader concern: appeal to non-Jewish courts. The sequence of the discussion creates an interplay between the question of divorce and that of appeal to non-Jewish courts in general, thus disqualifying any resort to non-Jewish courts. Nonetheless, there is no objection to the use of non-Jewish courts as a means of enforcing Jewish court decisions.
Conclusion
The judicial landscape of the Eastern Roman and the Sasanian Empires was anything but monolithic. Under both empires, there was a great diversity of judicial institutions that drew their authority from a variety of sources, including imperial sanction, religious affiliation, social rank, and interpersonal relationships. Imperial magistrates, ecclesiastical officials, and urban aristocrats on both sides of political boundaries were the formal upholders of imperial laws, thereby acting as propagators of imperial unity. Through the application of imperial law, members of the Roman and Sasanian judicial apparatus served as constant reminders of sovereignty. These officials, however, were not the exclusive possessors of judicial authority. Our evidence attests to a variety of institutions and individuals, both in urban and rural centers, who held judicial authority as well. These include village headmen, local notables, and pious individuals. A third category of judicial authority was that of minority confessional leaders, as in the case of the Jews under late Roman rule and the Christians and Jews in the Sasanian Empire.
The available evidence does not indicate the scale of recourse to more than one judicial institution, but it clearly suggests that such behavior was not exceptional. The existence of different judicial institutions within one or more legal orders is illustrative of the social and cultural pluralisms that prevailed under both empires. The choice of individuals to settle their legal disputes and validate their transactions before different institutions suggests their concurrent affiliation with different social circles. A citizen of the Roman Empire did not renounce his civil status when he chose to bring his dispute before a village headman, a landlord, or an individual of pious reputation, rather than before a formal representative of the imperial apparatus.
Yet the choice does reflect his or her simultaneous subordination to both imperial and local legal orders. Whereas judicial choice may have worked to the advantage of litigants, patrons of legal orders did not always welcome it, particularly when it undermined their authority. As the last part of our discussion has shown, such concerns were of particular relevance to the implementation and maintenance of confessional disciplines. The church fathers and the rabbis sought at every opportunity to discourage the use of extra-confessional judicial institutions. Patristic and rabbinic literatures contain concrete positions on this question, a fact that in itself points to the existence of choice, to its use, and to its social significance. Religious exhortations and prohibitions, however, were more than dry prescriptions, as they provided the believers a way to imagine their world through concepts of holiness and worldliness, thus outlining the internal and external realms of their communal affiliation. It is here, in the context of overlapping jurisdictions or semiautonomous social fields, that law served to define social spaces by censoring recourse to extra-confessional legal orders. As we turn in the following chapters to examine legal pluralism in the Islamic period and the attitudes expressed toward this pluralism by various authorities (Muslim and non-Muslim), we should recall that these concerns were already prevalent in the period preceding Islam.
CHAPTER 2
Islam’s Judicial Bazaar
A beautiful woman appealed to the qāḍī. [The qāḍī] found her attractive and therefore sought to marry her. [In response] she said: “I do not wish to marry.” … [S]he then turned to the chief of police [shurṭā] from whom she received the same [response] she had received from the qāḍī. She then turned to the head of the market, from whom she received the same. She then proceeded to [King] David’s chamberlain, yet [once again] the response she received was the same as she had from the others. Consequently, she withdrew her lawsuit and remained at home.1
It is possible that this passage, taken from ‘Umāra ibn Wathīma’s (d. 902) ninth-century collection of prophetic tales (Qiṣaṣ al-Anbiyāʾ), reflects the author’s understanding of biblical judicial arrangements in his own contemporary terms.2 The choice between several judicial figures provides the setting for the pseudo-biblical narrative. As early as the seventh century, Muslim officials, including qāḍīs, police officials, market overseers, and governors fulfilled a judicial role, in a way that exhibited a plurality of overlapping judicial authorities. This feature of Islamic judicial practices was continuous with the practices of the pre-Islamic period and, as such, was the target of later Islamic state reforms.
By the early eighth century, the vast territory between the western frontiers of Central Asia in the east and the Iberian Peninsula in the west had been brought under the sovereignty of a single empire. The administrations of the Eastern Roman and Sasanian Empires had been replaced by that of Islamic government. Although still undergoing a process of consolidation and formation, the Islamic regime sought to introduce new patterns of governance and social organization. These included the creation of a judiciary designed to serve the religious ideology of Muhammad and his followers. But the judicial organization of the Islamic state, like other areas of its administration, did not emerge overnight. Rather, its evolution was gradual and passed through a series of milestones.
The present chapter outlines and discusses the judicial institutions to which Muslims had access during the period of the broader study. A multiplicity of judicial institutions, along with a variety of other judicial practices, is seen here as an expression of a legacy handed down to the Muslims from their pre-Islamic predecessors. In this respect, this chapter, like the previous one, purports to contextualize the discussion that lies ahead. It aims not only to assist in filling in the picture of judicial arrangements but also to bolster the governing theme of this study as a whole: the prevalence of legal pluralism throughout the region and period of our discussion and the ongoing conflicts over social control that revolved around it.
The consolidation of the Islamic state entailed the formation of Islamic jurisprudence, followed by the establishment of the Islamic judiciary. At the same time, however, legal exclusiveness was never fully achieved by the Islamic state, and a diversity of legal authorities continued to persist not only within its own apparatus but also outside it, because of its