IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

alternative framework to that of autonomy, one which allows us to understand how multiple
legal orders coexisted not only in nineteenth-century Morocco but throughout Jewish history. 47
The historiography on Jewish legal autonomy has generally fallen on one of two sides of
a spectrum; an older generation which stresses the near-complete independence of Jewish courts,
and a newer generation which counters this view by proposing the near-complete powerlessness
(or even non-existence) of Jewish legal institutions. Jacob Katz’s description of the interplay
between Jewish and non-Jewish law is perhaps the most famous articulation of the approach
espoused by an earlier generation of Jewish historians. 48 Katz was most interested in how jurists
navigated the challenge posed to Jewish law by non-Jewish legal systems and the ways in which
rabbinic authorities attempted to prevent Jews from violating the Talmudic prohibition on
bringing other Jews before non-Jewish courts. 49 Katz wrote that “an appeal to a non-Jewish
court made with the consent of both parties was not always ruled out,” but that such an appeal
was only permitted with the express permission of the rabbis. 50 He all but ignored the question
of how Jews used non-Jewish courts when the matter at hand involved a non-Jew. 51
The first generation of historians to examine the role of non-Jewish courts in the Islamic
world did not stray far from Katz’s approach. These scholars drew primarily on responsa
47
Uriel Simonsohn has also used legal pluralism to great advantage: Uriel I. Simonsohn, A Common Justice: The
Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of Pennsylvania Press, 2011).
48
Jacob Katz, Exclusiveness and Tolerance: Studies in Jewish-Gentile Relations in Medieval and Modern Times
(Springfield, NJ: Behrman House, Inc., 1961), Chapter 5.
49
Ibid., 52-5. See also Simḥa Assaf, Batei ha-din ve-sidreihem aḥarei ḥatimat ha-Talmud (Jerusalem: Defus hapo‘alim,
1924), 11-24; Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: P. Feldheim,
1964). David Shohet takes a somewhat different approach and stresses the relative openness of early medieval
Jewish jurists towards non-Jewish courts, claiming that this attitude changed after the Crusades (David Menahem
Shohet, The Jewish Court in the Middle Ages: Studies in Jewish Jurisprudence According to the Talmud, Geonic
and Medieval German Responsa (New York: Hermon Press, 1931), 82-4, 95-104). For a more recent study of this
question in greater detail, see Edward Fram, Ideals Face Reality: Jewish Law and Life in Poland, 1550-1655
(Cincinnati: Hebrew Union College Press, 1997).
50
Katz, Exclusiveness and Tolerance, 52. See also idem, Tradition and Crisis: Jewish Society at the End of the
Middle Ages (Syracuse, NY: Syracuse University Press, 2000), 83.
51
Katz passes over the subject in a single sentence: “Relationships between Jews and non-Jews were, of course,
entirely subject to non-Jewish authorities” (idem, Exclusiveness and Tolerance, 52).
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