rustow (m.)_the legal status of Ḏimmī-s in the fatimid east. a view from the palace in cairo

H BREPOLS PUBLISHERS THIS DOCUMENT MAY BE PRINTED FOR PRIVATE USE ONLY. THIS DOCUMENT MAY NOT BE DISTRIBUTED, STORED IN A RETRIEVAL SYSTEM WITHOUT PERMISSION OF THE PUBLISHER

TH

E L

EG

AL STA

TU

S OF

IMM

-S IN T

HE

ISLA

MIC

WE

ST(secon

d/eigh

th-nin

th/fifteen

th centuries)

cover: Ibn Sahl, al-Ahkam al-kubr

Religion and law in Medieval ChRistian and MusliM soCieties

1

THE LEGAL STATUS OF IMM-S IN THE ISLAMIC WEST

(second/eighth-ninth/fifteenth centuries)

H

Edited by Maribel Fierro and John Tolan

ISBN 978-2-503-54854-8

9 782503 548548

RELMIN

1

The studies brought together in this volume provide an important contribution

to the history of imm-s in the medieval dr al-islm, and more generally to the

legal history of religious minorities in medieval societies. The central question

addressed is the legal status accorded to imm-s (Jews and Christians) in the

Muslim law in the medieval Muslim west (the Maghreb and Muslim Spain).

The scholars whose work is brought together in these pages have dealt with a

rich and complex variety of legal sources. Many of the texts are from the Mlik

legal tradition; they include fiqh, fatw-s, isba manuals. These texts function

as the building blocks of the legal framework in which jurists and rulers of

Maghrebi and Peninsular societies worked. The very richness and complexity

of these texts, as well as the variety of responses that they solicited, refute the

textbook idea of a monolithic imm system, supposedly based on the Pact of

Umar, applied throughout the Muslim world. In fact when one looks closely at

the early legal texts or chronicles from both the Mashreq and the Maghreb, there

is little evidence for a standard, uniform imm system, but rather a wide variety

of local adaptations. The articles in this volume provide numerous examples of

the richness and complexity of interreligious relations in Medieval Islam and

the reactions of jurists to those relations.

relmin_1_cover.indd Alle pagina's 30/10/13 08:17


THE LEGAL STATUS OF )--3 IN THE ISLAMIC WEST, Maribel FIERRO and John TOLAN Turnhout, 2013, (Relmin 1) pp. 307-332 F H G DOI 10.1484/M.RELMIN-EB.1.101823

The legal status of IMMS in the Fatimid East: A view from the palace in Cairo

Marina RUSTOWJohns Hopkins University

A large corpus of state documents on IMMS has survived from the me-dieval Islamic east that casts light on their legal status under the Fatimids, Ayyubids, and Mamluks. These documents demonstrate that IMMS con-ducted extensive negotiations with Muslim authorities and Islamic institu-tions beyond the framework of ARAOF)SLAMICLAWASDENEDANDPUTINTOpractice by jurists. They point to the necessity of looking beyond the institu-tions and texts of the ARAas contained in works of QH: the status of IMMS was regulated by sovereigns and KUTTBBUREAUCRATSANDNOTONLYBYFUQAHJURISTS4HEDOCUMENTSTHEREFOREPERMITONETOLOOKBEYONDTHELEGALINSTITU-tions that were shaped by jurists and to investigate other loci of power.1

In the context of this volume on the legal status of IMMS in the Islamic west, this paper is intended to do three things. First, it is meant as an argu-ment on behalf of using documentary sources wherever possible to gauge the legal situation of IMMS beyond what can be reconstructed from prescriptive and narrative texts. Second, it points to the upper echelons of the state as an arena of law, of the administration of justice, and of the protection of rights outside the Q courts and the realm of ARAASDENEDANDPUTINTOPRACTICEby jurists. Third, it is intended to suggest the utility of comparison between EASTANDWESTTHEEASTERNDOCUMENTSCANSERVETOPOSEQUESTIONSTOWESTERNSOURCESANDTHUSTOEXPANDTHEINQUIRYONTHELEGALSTATUSOFIMMS to in-CORPORATEHISTORICALLYVERIABLECASESANDARENASOFLEGALDECISIONMAKINGbeyond those usually studied by scholars of Islamic law.

The texts I will examine are documents from the Fatimid period that were produced in the course of MALIMjustice. The MALIMprocedure was an in-stitution run by the sovereign, his viziers, and his bureaucrats, designed for THELODGINGOFAPPEALSANDREQUESTSDIRECTLYTOTHESTATE4HEDOCUMENTSATTESTto cases brought by Christians, Jews, and Muslims alike; they demonstrate that

1/NSPHERESOF)SLAMICLAWOUTSIDEQH, and especially SIYSAthe discretionary authority EXERCISEDBYTHERULERANDSTATEOCIALSINCLUDINGTHEUSEANDTHREATOFVIOLENCEASMEANSOFENFORCEMENTSEE4YAN(ISTOIREDELORGANISATIONJUDICIAIREPP(ODGSON4HE6ENTUREOF)SLAMPP,EWIS3IYASAPP-ASUD4HE$OCTRINEOF3IYSAIN)SLAMIC,AWPP


308 MARINA RUSTOW

under the rubric of MALIM, IMMS were subject to the same treatment, regu-lations, and procedures as Muslims.2

The premises of the MALIM procedure were that anyone could approach THERULERWITHREQUESTSORCOMPLAINTSABOUTINJUSTICES!RMALIMESPECIALLYTHOSEPERPETRATEDBYOCIALSANDTHATSUBJECTSSHOULDHAVERECOURSETOAhigher authority than the one against whom they were lodging the com-plaint.3 In practice, the range of cases included far more than complaints AGAINSTINJUSTICEONEALSONDSTHERESOLUTIONOFCONICTSTHATFORVARIOUSreasons could not be brought before Q or IMMcourts, or that had already BEENBROUGHTBEFORETHEMANDNOWCAMEBEFORETHESTATEONAPPEALREQUESTSfor investiture; and appeals for aid in matters personal, collective, or institutional.

The MAlim procedure has a long history in the Islamic world. It already existed in fairly elaborate form under the early Abbasids; the Fatimid caliphs TOOKITOVERFROMTHEMTHE3ELJUQSAND!YYUBIDSMAINTAINEDITANDHOUSEDITin what they called a DRADLPALACEOFJUSTICETHE-AMLUKSADDEDANELABO-rate ceremonial and ritualized choreography for the submission and answe-ring of petitions; and it was in use, with recognizable continuities, up through the end of the Ottoman period. Under all these dynasties, subjects could peti-TIONREGIONALOCIALSHIGHRANKINGBUREAUCRATSANDCOURTIERSORTHERULERdirectly. But despite the openness of the system, if you wanted your petition to be answered, it helped to have the right connections; and we cannot assume that all petitioners received responses.

Nonetheless, the openness of the system is striking. But the MALIMsys-tem was not simply a manifestation of the liberality of caliphs and sultans. In fact, it served the rulers self-interest in several ways. Chancery bureaucrats in their manuals and compendia emphasize the importance of the procedure

24HE'ENIZAALSOPRESERVEDDOZENSOF)SLAMICLEGALDOCUMENTSTHATSHOWIMMSBRINGINGcases in Islamic courts. These can be of great value in understanding how Jews and Christians utilized the Islamic court system for their own ends. Nearly seventy have been edited and more are cited in Khan, !RABIC,EGALAND!DMINISTRATIVEDOCSMANYMOREREMAINUNPUBLISHED3&ORSOMEMEDIEVALNARRATIVEANDPRESCRIPTIVESOURCESATTESTINGTOTHISSEE4YAN(ISTOIREDELORGANISATIONJUDICIAIREPP&ORASTILLEXCELLENTINVESTIGATIONOFMALIM in medieval QH, historiography, and chancery manuals, see Tyan, (ISTOIREDELORGANISATIONJUDICIAIREPP&ORHISTORICALACCOUNTSSEEONTHE!BBASIDPERIODVAN"ERKEL!BBSID-ALIM between Theory and Practice and Tillier, 1s and the Political Use of the -ALIM*URISDICTIONPPONTHECONTINUITIESANDchanges between the Abbasid and Fatimid periods, see Rustow, Justice as Performance: The 0ETITIONAND2ESPONSE0ROCEDUREINTHE&ATIMID2EALMONTHE:ENGIDSSEE2ABBAT4HE)DEOLOGICAL3IGNICANCEOFTHE$RAL!DLPPONTHEEARLY-AMLKPERIODWITHMUCHONTHE3ELJUQSAND!YYUBIDSSEE.IELSEN3ECULAR*USTICEINAN)SLAMIC3TATE; on the later Mamluk period, see Fuess, ULMby -ALIMPPANDFORALONGDUREVIEWWITHAFOCUSON/TTOMAN COMPLAINTS ABOUT OVERTAXATION SEE $ARLING 2EVENUE2AISING AND ,EGITIMACY, pp.


THE LEGAL STATUS OF )---S IN THE FATIMID EAST: A VIEW FROM THE PALACE IN CAIRO 309

for the rulers reputation and thus his sovereignty and legitimacy (or hers; at least one female ruler, the Fatimid princess Sitt al-Mulk, received petitions FROMHERSUBJECTSTWOOFWHICHWILLBEDISCUSSEDBELOW/NEHEADOFTHELATE&ATIMIDCHANCERY)BNALAYRAFDESCRIBEDTHECENTRALITYof MALIM to sovereignty and legitimacy in the following manner: issuing rescripts and decrees in response to petitions concerning grievances is a particularly important aspect of the chancerys work, because

it involves people claiming justice (MUQTAIYanANFFROMONEANOTHERANDTHEestablishment of justice (IQMATNMSALADLINTHEREALM!LSOMOSTOFTHOSEwith a grievance (ALMUNALIMNAREPOWERLESSPEOPLEPAUPERSANDRETIRINGwomen, most of whom arrive from distant parts of the realm, believing that they are approaching someone who will help them and redress their grie-vances and assist them against their adversaries.5

)BNALAYRAFWASUTTERLYHONESTABOUTTHEELEMENTOFAPPEARANCEIFMOSTpeople believed that they were seeking justice from someone actually in a POSITIONTOOERITTOTHEMTHENTHEREGIMEHADTOOERTHEMTHISSOTHATTHEruler could establish justice in the realm. The MALIMprocedure was, then, at least in part about popular legitimacy.

More immediately, however, MALIMserved rulers interest by allowing THEMTORECEIVECOMPLAINTSABOUTABUSIVEOCIALSITISFROMTHISASPECTOFTHEprocedure that the name derived. Subjects who petitioned the state with com-PLAINTSABOUTMISTREATMENTATTHEHANDSOFOCIALSPOSSESSEDAPOWERFULALLYin the ruler, and the MALIMprocedure in principle guaranteed their rights against those more powerful. This was one reason the procedure protected Muslims and IMMS EQUALLY ITWASPRECISELYABOUTPROTECTING THEWEAKagainst the strong. Not only could IMMS appeal the decisions of Q courts; THEYCOULDSUBMITPETITIONSREQUESTINGEXEMPTIONSFROMSHAR statutes, such ASTHEOBLIGATIONTOPAYTHEIZYA

This paper brings some of the MALIM cases attested in the documents and HIGHLIGHTSTHEJUSTICATIONSTHEYPRESENTASABASISFORTHEIRDECISIONSWHICHcast light on the relationship the state maintained with its religious minori-ties, with its subjects more generally, and with institutions of QH. I will conclude by suggesting how the documents might also help the study of the Islamic west by outlining, at least provisionally, a region of the legal status of IMMSBEYONDTHECONNESOFTHEARA

5)BNALAYRAF1NNDWNALRASIL, pp. 150-51.


310 MARINA RUSTOW

7KHGRFXPHQWVThe corpus of MALIMdocuments from the Fatimid period is considerable,

and there is similar material preserved for the Ayyubid and Mamluk periods ASWELLTHOUGHPROPORTIONALLYLESSOFIT-ORETHANONEHUNDREDSUCHDOCU-ments have been published6 and another forty-seven cited; in the course of the research I am now conducting on Fatimid state documents, I have identi-EDANADDITIONALONEHUNDREDFTYUNPUBLISHEDONES-OSTOFTHESEWEREpreserved in the Cairo Geniza, a storage chamber for discarded texts built into THEMEDIEVAL3YRO0ALESTINIANRITE SYNAGOGUE IN&US3OMECOME FROMother sources, including the archive of the monastery of St. Catherine in Sinai, THEEXCAVATIONSAT/XYRHYNCHUSAL"AHNASINTHE&AYYMANDOTHERPAPY-rological caches. The MALIM-related texts include four types of document: petitions to and decrees from caliphs, sultans and viziers, in draft, original, and copy; decrees issued by the state, again in draft, original, and copy; inter-NALCHANCERYDIRECTIVESALLORIGINALSANDLETTERSTHATDISCUSSMALIMcases ANDOERDETAILSASTOWHATBROUGHTABOUTTHEAPPEALTOSTATEJUSTICEORELSEattest to some aspect of procedure.

The documents demonstrate that petitions were brought in three basic SITUATIONSBEYONDCOMPLAINTSABOUTOCIALABUSEIMMLEADERSREQUESTEDINVESTITURESINOCEWHENTHEYWEREAPPOINTEDORWHENANEWRULERACCEDEDto the throne; factions of IMMS lodged petitions for the resolution of com-munal disputes; and individuals (both IMMAND-USLIMLODGEDAPPEALSFORaid. The range of cases demonstrates that MALIMprocedure extended well BEYONDCOMPLAINTSABOUTOCIALSSUBJECTSUSEDITASANADMINISTRATIVEPRO-

6'OTTHEIL!$ECREEIN&AVOUROFTHE+ARAITES'OITEIN.EW3OURCESONTHE0ALESTINIAN'AONATEDOCSAND'OITEIN#ONGREGATIONVERSUS#OMMUNITYCF'OITEIN0ETITIONSTOTHE&ATIMID#ALIPHS3TERN!N/RIGINAL$OCUMENTFROMTHE&ATIMID#HANCERY3TERN!&IMID$ECREEOFTHE9EAR3TERN4HREE0ETITIONSOFTHE&IMID0ERIOD3TERNPetitions from the Ayyubid Period; Stern, &ATIMID$ECREES/RIGINAL$OCUMENTS; Stern, Two !YYUBID$ECREESFROM3INAI3TERN0ETITIONSFROMTHE-AMLUK0ERIOD3TERN!0ETITIONTOTHE&IMID#ALIPHAL-USTANIR2ICHARDS!&ATIMID0ETITION2ICHARDS!-AMLK0ETITIONRichards, A Petition for a )Q+HAN!#OPYOFA$ECREEFROMTHE!RCHIVES+HAN!0ETITIONTOTHE&ATIMID#ALIPHALMIR+HAN4HE(ISTORICAL$EVELOPMENT+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSDOCSAND2USTOW!0ETITIONTOA7OMANATTHE&ATIMIDCourt.+HAN4HE(ISTORICAL$EVELOPMENT+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTS, pp. 4HISRESEARCHWILL)HOPECULMINATEINTHREESEPARATEPUBLICATIONSADIPLOMATICSTUDYOFSELECTEDDOCUMENTSUNDERCONTRACTWITH"RILLASTUDYOF&ATIMIDGOVERNANCEFOCUSINGESPE-cially on the rich documentary material from Jewish sources (under contract with Princeton 5NIVERSITY0RESSANDJOINTLYWITH'EOREY+HANACOMPREHENSIVEEDITIONOF&ATIMIDSTATEDOCUMENTSFROMVARIOUSCOLLECTIONS'ENIZAARCHIVALANDPAPYROLOGICAL



CEDURETHATCOULDOERTHEMACCESSTOJUSTICEABOVETHEJURISDICTIONALLEVELOFthe Qcourts and to the authority of the state when needed.

The surviving MALIMDOCUMENTSTENDTOCITEALIMITEDRANGEOFJUSTICA-TIONSFORTHEREQUESTSTHEYMAKEINTHECASEOFPETITIONSORTHEDECISIONSTHEYRENDERINTHECASEOFDECREES4HEMOSTFREQUENTJUSTICATIONSTHEYOERINcases brought by IMMSAND-USLIMSALIKEAREPRIORPRECEDENTANDTHEPER-SONALQUALITIESOFTHESOVEREIGNSUCHASHISAUTHORITYHISCOMMITMENTTOjustice, and his divinely ordained sovereignty. IMMcases cite an additional PRINCIPLE THE LAWS AND CUSTOMSOF THE RELIGIOUS COMMUNITY INQUESTIONMissing from most of the documents are appeals to ARA or the interpreta-tions of the FUQAH4HATTHEJUSTICATIONSFALLWITHINTHISRANGEREGARDLESSOFthe type of case already suggests the independence of the MALIMtribunals from the legal system as constituted and maintained by judges and jurists.)NWHATFOLLOWS)WILLOERAFEWEXAMPLESOFEACHTYPEDRAWINGOUTTHEIR

implications for IMMstatus and MALIM justice, and ending with cases LODGEDAGAINSTMIDLEVELOCIALS

5HTXHVWVIRULQYHVWLWXUHUnder Fatimid rule, as in other medieval Islamic contexts, IMMGROUPS

the Jewish community (QAHALANDTHE#OPTIC-ELKITEAND*ACOBITECHURCHESPOSSESSEDTHERIGHTTOAPPOINTTHEIROWNOCIALS"OTHTHEJURISTSANDTHEstate alike considered this right fundamental to their protected status, which guaranteed their religious practices and their immunity from outside inter-vention, at least within certain limits; other limits were rarely enforced (such as the ban on public IMMCEREMONIESSTIPULATEDINTHE0ACTOF5MAR"UTdespite these guarantees of autonomy, IMMOCIALSSOUGHTINVESTITURESFROMthe sovereign, regardless of the door that might open to state intervention; THEYDIDSOSEEKINGOCIALRECOGNITIONSANCTIONANDSUPPORTFORTHEIRLEA-dership and for the group they led.

Petitioning for investiture served leaders by allowing them to forge a di-rect link to the highest ruling authority. Leaders tended to seek renewal of

&ORGINGARELATIONSHIPDIRECTLYWITHTHEHIGHESTRULINGAUTHORITYANDBYPASSINGMIDLEVELOCIALSISANARRANGEMENTWIDESPREADINVARIOUSMEDIEVAL*EWISHCONTEXTSFORWHICH"ARONcoined the term royal alliance; see his !3OCIALAND2ELIGIOUS(ISTORYOFTHE*EWSVOLPPBaron, Plenitude of Apostolic Powers and Medieval Jewish Serfdom; Baron, Medieval Nationalism and Jewish Serfdom; Baron, 3OCIALAND2ELIGIOUS(ISTORYOFTHE*EWSVOLPPThe concept was greatly expanded and deepened in Yosef Hayim Yerushalmis work on the Iberian peninsula and, eventually, on other settings from the Roman Empire to the Warsaw Ghetto; see Yerushalmi, 4HE,ISBON-ASSACREOF; Yerushalmi, Serviteurs des Rois et non serviteurs des serviteurs; and my comments in Rustow, La notion dalliance royale et Yerushalmi pour matre. But in the medieval Islamic context, if not in others, this notion


312 MARINA RUSTOW

THEIRINVESTITUREDOCUMENTSNOTONLYWHENTHEYTHEMSELVESROSETOOCEBUTalso with each successive ruler. For the leaders themselves, such documents bolstered their authority by strengthening their hand in case of jurisdictional CONICTS10 or laying the groundwork for intervention by the police or other AGENTSOFSTATECOERCIONURA; RIla11; but it also strengthened the ruler by setting him up as the patron and personal protector of high-ranking IMM leaders. $OCUMENTSOFINVESTITUREWERETHENSOMEWHATPARADOXICALTHEYGRANTED

IMMgroups the right to shape and practice their religious customs under the sole authority of their appointed leader, free from the hindrance of the state; but they granted that right in the form of a document issued on appeal to the state. Jewish and Christian leaders did not, however, regard it as a para-dox, for one simple reason: they set the terms of their own appointment, and THESOVEREIGNMERELYRATIEDITFROMABOVE

REQUIRESCAREFULRECONSIDERATIONONATLEASTTWOCOUNTSALINKTOTHERULERDIDNOTNECESSARILYEXCLUDELINKSTOLOWERLEVELOCIALSSEENNBELOWANDTHEPETITIONSTOLOWEROCIALSINKhan, !RABIC,EGALAND!DMINISTRATIVE$OCUMENTSDOCSANDTHESTRUCTUREOFTHE)SLAMICstate itself tended to encourage direct links to the ruler, so Jews were by no means exceptional in forming them. 104HEgaon OF*ERUSALEMELOMOBEN9EHUDAWHENTHREATENEDBYARIVALCLAIMANTTOHISTITLEANDPOSITIONINCAMETOTHELATTERSTURFIN2AMLAARMEDWITHANEDICT(TAWQ THATWAS PROBABLY A RECONRMATION IN OCE FROM LOCAL OCIALS 3EE #AMBRIDGE5NIVERSITY,IBRARY-3/R*'IL0ALESTINE$URINGTHE&IRST-USLIM0ERIODDOCDISCUSSEDin Rustow, (ERESYANDTHE0OLITICSOF#OMMUNITY, pp. 305-306.11-OBILIZINGSTATECOERCIONWASAPPARENTLYANOPTIONOPENTOOTHERHIGHRANKINGIMMO-CIALSASWELL4HUSINANDTHEELDERSOFTHE*ERUSALEMYEIVAcalled upon the Fatimid governor of Jerusalem to attend the Jewish pilgrimage festival of the Mount of Olives in order to prevent the gaon from declaring an excommunication against the Qaraites (for details, see Rustow, (ERESYANDTHE0OLITICSOF#OMMUNITY, pp. ANDLIKEWISEINTHESPRINGORSUMMEROFAFACTIONOF*EWSSUPPORTINGELOMOBEN9EHUDAASgaon against the rival MENTIONEDABOVENPETITIONEDTHECHANCERYOFAL-USTANIRCOMPLAININGTHATTHERIVALSsupporters had overpowered them with RIlaANDREQUIREDTHEMTOOBSERVECUSTOMSNOTpermissible according to their religious convictions and threatened imprisonment and all KINDSOFTERRIBLETHINGS#AMBRIDGE5NIVERSITY,IBRARY4AYLOR3CHECHTERHEREAFTER43!R/XFORD"ODLEIAN,IBRARY-3(EBBIN3TERN0ETITIONTOTHE&IMID#ALIPHAL-USTANIRPPAND'IL0ALESTINEDOCSEEALSO2USTOW(ERESYANDTHE0OLITICSOF#OMMUNITYPP!NOTHERDOCUMENTTHATMUSTBERECONSIDEREDINTHISCONTEXTISADEPOSI-TIONOFINWHICHABROTHERBRINGSLEGALACTIONAGAINSTHISSISTERFORPURSUINGHERINHERITANCEfrom her father in an Islamic court; the Fatimid military police (RILATAKETHEBROTHERTOTHEQTOHAVEHIMSURRENDERHERSHARE43*43*ADOCUMENTJOINEDBY/DED:INGERTOPHALFPUBLISHEDMOSTRECENTLYIN'IL0ALESTINEDOCCFTHEDISCUSSIONIN2USTOW(ERESYANDTHE0OLITICSOF#OMMUNITY, pp. BOTTOMHALFAVAILABLEONLINEIN'OITEINSEDITIONTHROUGHTHE0RINCETON'ENIZA0ROJECTENTIREDOCUMENTTOBEREEDITEDIN:INGERSDISSERTATIONINPROGRESSONWOMENANDCOURTDOCUMENTSFROMTHE'ENIZA$EPARTMENTOF.EAR%ASTERN3TUDIES0RINCETON5NIVERSITY



4HUSADECREE ISSUEDDURINGTHEVIZIERATEOFAL!FALB"ADRAL*AMLTHEDEFACTORULERDURINGTHECALIPHATESOFAL-USTALANDALMIRRENEWSTHEPRIVILEGESOFA#HRISTIANLEADERONTHELATTERSREQUEST12 The fragment of the decree that HASSURVIVEDDOESNOTSAYWHATKINDOFANOCIALTHISWASORTOWHICHCHURCHhe belonged; his followers are referred to only as ALNARA, Christians, and the LISTOFSPECICPREROGATIVESHASNOTSURVIVED134HATSAIDTHEDOCUMENTOERSprecious information about petitions for investiture and what they meant for IMMstatus.

First, it is clear that the initiative for the decree came from the Christian OCIALHIMSELFORHISCLOSEASSOCIATESBECAUSETHEDECREEREFERSTOITSELFASATAWQARESCRIPTTHETECHNICALNAMEFORADECREEISSUEDUPONTHEREQUESTOFits recipient.3ECONDINTHEDECREETHERULERANDHISADMINISTRATORSOERASPECICSETOFJUSTICATIONSFORTHEIRDECISIONTOGRANTTHEINVESTITURE7HAThas been preserved begins INMEDIASRESINTHEARENGAINDIPLOMATICTERMSthe section of a document in which its author expresses his or her motives for writing it. In a decree, the arenga is where we should expect rulers to discuss THEIRQUALITIESOFJUSTICETHEIRDEEDSOFBENEFACTIONANDTHEBASISOFTHEIRauthority to grant and defend prerogatives. This decree states that caliphs in GENERAL POSSESS THE RIGHT TO CONCEDE INVESTITURES TO THE OCIAL WHO ISappointed

OVERALLTHE#HRISTIANSDWELLINGINHISTHECALIPHSDOMINIONANDLIVING;IN=the provinces of his kingdom, so that he may execute their legacies (MAWRTH15

1243!R+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTS, doc. 120 (at Cambridge these two sheets are catalogued backwards, with indications of recto and verso reversed from THOSEIN+HANSEDITIONWHICH)HAVEFOLLOWEDHERE4HISDOCUMENTISACOPYOFTHEORIGINALdecree written in a chancery hand but without the characteristic mise-en-page and mise-en-TEXTEOFOCIALDECREESISSUEDTOTHEIRRECIPIENTSTOJUDGEBYTHESCRIPTITWASCOPIEDBYATRAINEDCHANCERYOCIAL!LTHOUGHITNOWCONSISTSOFTWOSEPARATEPAPERROTULIITISEVIDENTfrom the way they are preserved that they once formed a part of the same long, narrow note-BOOK4HELATTERISALSOTRUEOF43!RAN!YYUBIDDOCUMENTOFAPPOINTMENTMADEFORA*EWISHLEADERIN3YRIAIN+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTS, DOC)Tis evident that it is a copy rather than a draft because the document states that the original BOREREGISTRATIONMARKSANDTHEMOTTOALMAOFAL!FAL43!RVERSOLINES4HESCRIBEALSOMADEANERRORINHISCOPYHEHASWRITTENTHEDATEASTENYEARSBEFOREAL!FALSACCESSIONSEE+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSPP134HEPOSSIBILITIESINCLUDEA#OPTICBISHOPA-ELKITEBISHOPORPATRIARCHIFTHEDOCUMENTPREDATESTHE&ATIMIDLOSSOF*ERUSALEMTOTHE3ELJUQSINORANDA*ACOBITEMETROPOLI-tan, but not a patriarch (during the Fatimid period the West Syrian patriarchate was housed IN-ALAYAOUTSIDE&ATIMIDTERRITORY43!RRECTOLINEITALSOUSESTHETERMSsiill43!RRECTOLINEAND43!RVERSOLINEANDSIILLMAN;R=43!RVERSOLINES15)READMAWRASREFERRINGINGENERALTOTHETRADITIONSANDCUSTOMSOFTHECHURCHINQUESTIONrather than to the body of law concerned with inheritances (were the latter meaning intended, THEDOCUMENTWOULDHAVELISTEDOTHERAREASOFLAWOVERWHICHTHELEADERHADJURISDICTION


314 MARINA RUSTOW

ASREQUIREDBYWHATISSTATEDANDARTICULATEDINITTHE#HRISTIANSRELIGIONBOTHSPECICALLYANDGENERALLYThe commander of the faithful is the most worthy person to execute the ins-TRUCTIONSOFHISANCESTOR;THECALIPHAL-USTANIR=ANDTOact upon his noble and glorious deeds, which are found in his noble and glo-rious SUNNA to water what he has planted and to elevate what he has built and FOUNDED(EHASEXECUTEDINAGLORIOUSANDMAGNICENTMANNERTHEINSTRUC-tions of this gracious decree: he has made these Christians conform to his mighty judgments and strengthened his sacred and established principles. He ASSUMESTHERESPONSIBILITYFORTHEWELFAREOFTHEMEMBERSOFRELIGIOUSGROUPSMILLANDIMMS(EOERSCONSIDERATIONANDJUSTICETOHEWHOISWEAKSOTHATHEMAYBEEQUALTOTHESTRONG. He has delegated the present authority to them on the basis of the precedent SETBYHISANCESTORSALACUNAINTHETEXTFOLLOWSANDWITHTHESANCTIONOFTHEINSTRUCTIONSISSUEDINTHEIRTIMESTOFOLLOWTHISPRECEDENTANDTOCONTINUETOACTASISCUSTOMARYINTHEKNOWLEDGETHATTHEYTHECALIPHSARETHEREPRE-sentatives of God on earth. He, praise him, has granted them the power to extend or restrain. Their clients (AWLIYUHUMARECLOTHEDINTHEIRJUSTICETHEYSHOWCONCERNFORANDDEFENDtheir subjects (RIYAHUMREGARDLESSOFRANK16

Here we see three motives for the caliphs decision to bestow on this Christian leader the benefaction of a decree of investiture. First, the caliph upholds IMMLAWSANDCUSTOMSTHEIRLEGACIESASREQUIREDBYWHATISSTATEDand articulated in their religion. Second, the caliph acts according to pre-cedent, here variously called the SUNNA, the precedent or the instructions set by his ancestors, the sanction of the instructions issued in their times, ANDORDERSISSUEDBYAL-USTANIRANDBYALMIR Third, the caliph decides INACCORDANCEWITHTHEQUALITIESOFCALIPHSINGENERALTHEIRAUTHORITYTHEYARETHEREPRESENTATIVESOF'ODONEARTHTHEIRCONCERNFORTHEIRSUBJECTSTHEYSHOWCONCERNFORANDDEFENDTHEIRSUBJECTSREGARDLESSOFRANKANDTHEIRDUTYTODISPENSEJUSTICETHEIRCLIENTSARECLOTHEDINTHEIRJUSTICE IMMCUSTOMPRIORPRECEDENTANDSOVEREIGNBENEFACTIONTHISTRIPARTITEJUSTICA-tion for MALIM decisions is typical of the documents and recurs in them. )FSOMEOFTHESEDOCUMENTSCITEASJUSTICATIONTHERULERSDUTYTOUPHOLD

IMMCUSTOMSHOWDIDRULERSKNOWWHATTHOSECUSTOMSWERE4HEYKNEW

16-YEMPHASIS)HAVEALTERED+HANSTRANSLATION)FONEACCEPTSMYRECONSTRUCTIONOFTHEANTECEDENTOFTHEPRONOUNINTHISSENTENCEBUTTHESAMETYPEOFSTATEMENTISWELLATTESTEDINOTHERDOCUMENTSSEENEXTPARAGRAPH)TISNOTEWORTHYTHATTHEINTERVENINGCALIPHATEOFAL-USTALISNOTMENTIONED4HISMAYsimply be because the privilege had not been renewed during his caliphate. !DECREEOFALFROMTOTHEMONKSOF3INAIMERGESTHESECONDTWOMOTIVATIONSINTOONEITDEPICTSTHECALIPHASDIRECTINGTHEAAIRSOFTHECOLLECTIVITYof Muslims as well as IMMs, in the manner corresponding to his accustomed good-will. Stern, &IMID$ECREESDOC



because they asked IMMS themselves to testify on the matter. This is clear FROMANINVESTITUREREQUESTFROMTHEgaon of Jerusalem (the head of the YEIVAOF*ERUSALEMANDTHERELIGIOUSLEADEROFTHERABBINIC*EWSINTHE&ATIMIDSTATEELOMO BEN9EHUDA TO THE &ATIMID CALIPH AL-USTANIR ON THEOCCASIONOFTHELATTERSACCESSIONTOTHECALIPHATEIN4HEPETITIONHASNOTSURVIVEDBUTTHE'ENIZAHASYIELDEDTHEDRAFTOFARELATEDDOCUMENTEITHERPARTOFTHEPETITIONORASEPARATETESTIMONYACCOMPANYINGITINWHICHthe gaons Cairo-based supporters list all the prerogatives that he had exer-CISEDDURINGHISPREVIOUSELEVENYEARSINOCERENDERINGLEGALDECISIONSINJewish courts; authorizing Jewish marriages and divorces; generally enforcing Jewish law; imposing and cancelling bans of excommunication; appointing and dismissing members of the yeshiva and judges; appointing cantors for the synagogues and kosher butchers for the markets; and supervising the com-munity leaders and the court trustees. The gaons followers simply informed the caliph of these privileges, and the caliph was expected to ratify his ap-pointment based on their word.20

One of the remarkable aspects of these documents is the way they demons-trate IMMLEADERSTOHAVEBEENUENTINTHEARCANAOFFORMULARYDIPLOMATICANDJUSTICATORYRHETORIC2EQUESTSFORINVESTITUREBORROWFREELYFROMPRIORdecrees (a point that indirectly demonstrates the existence of IMMarchives EVENWHERENONEHAVESURVIVEDANDTHEYSOMETIMESUSETHISKINDOFRHETORICeven in internal communal correspondence. Such is the case in a letter of 1025, in which the gaon elomo ha-Kohen ben Yehosef (who served for only SIXMONTHSWRITESTOHIS*EWISHSUPPORTERSIN#AIROASKINGTHEMTOSUBMITAPETITIONFORINVESTITUREONHISBEHALFTOALHIR4HEgaon WROTETHELETTERINALENGTHYANDORIDMANNERINBEAUTIFULLYCALLIGRA-PHIC(EBREWANDONAONCESPLENDIDLOOKINGROTULUSPROBABLYMORETHANone meter long; the physical presentation of the letter and the choice of (EBREWWERECLEARLYINTENDEDASSIGNIERSOFHISNEWLYASSUMEDGAONICAUTHO-RITY9ETTHEONLYWAYTOMAKESENSEOFTHESECTIONREQUESTINGANINVESTITUREdecree is to assume an Arabic 6ORLAGEBEHINDTHEORID(EBREWPROBABLYTHEarenga of a rescript of investiture that one of his predecessors had received: FORHETHECALIPHLOOKSAFTERHISOCKHEWRITESANDALSOAFTERTHESLAVESOFHISREALMAVEDEYMALUTOWHOAREKNOWNTOHIMANDWEREALSOKNOWNTOHISESTEEMEDFATHERSINTHEIRETERNALREST(ETHENTIPSHISHANDANDDE-monstrates that he has been consulting previous documents of appointment: for three of his ancestors have granted a benefaction to us (i.e., to previous GEONIMSINCEWEPOSSESSTHEIRDECREESNITAVNAMTHEDECREEOFHISGREAT

200HILADELPHIA5NIVERSITYOF0ENNSYLVANIA#ENTERFOR!DVANCED*UDAIC3TUDIES(ALPERV'OITEINED0ALESTINIAN*EWRYIN%ARLY)SLAMICP'OITEIN.EW3OURCESONTHE0ALESTINIANGaonate, doc. 3; and see the emendation in Rustow, (ERESYANDTHE0OLITICSOF#OMMUNITY, ch. 11, notes 56. I have altered Goiteins translation.


316 MARINA RUSTOW

grandfather, of his grandfather, and the decree of his father. Let him (the CALIPHCOMPLETETHOSEWITHHISOWNDECREE21 Precedent worked from both sides, then: the testimony of the gaonSSUPPORTERSSUCEDTODETERMINETHESHAPEOFHISOCEANDTHEDECISIONOFTHECALIPHSPREDECESSORSTOISSUEINVES-TITURESJUSTIEDHISNOWDOINGSO224HEFACTTHATAPPOINTMENTSWEREMADEFROMBELOWANDRATIEDFROMABOVE

was of course preferable for Jews and Christians than having some courtier toady imposed on them from Cairo. But as systems of leadership go, this one was subject to one serious weakness: factional rivalry. That helps to explain THEFREQUENCYOFJURISDICTIONALCONICTBETWEENDIERENTIMMfactions, the type of petition and decree to which I will now turn.

3HWLWLRQVIRUWKHUHVROXWLRQRIOHDGHUVKLSGLVSXWHVIMM leaders and their followers used the chancery as a measure of last

resort in power struggles when state power could work to the advantage of one party or another. But given that members of the IMMGROUPITSELFOEREDTESTIMONYJUSTIFYINGTHEIRREQUESTITWASEASYALMOSTTOOEASYFORRIVALLEA-ders to submit counter-petitions mustering testimony supporting their lea-dership over that of the incumbent. 4HISWAS THECASEAROUNDWHENA LEADEROF THE )RAQIRITE *EWISH

MAHAB9SUFAL3IILMSATTEMPTEDTOSECUREFORHIMSELFTHERIGHTTOAP-POINTHISOWNJUDGESANDOTHEROCIALSIN0ALESTINE!LLAPPOINTMENTSTOOCEhad fallen within the compass of the gaonSOCEASLONGASANYONECOULDremember; infringing on this prerogative was a highly unusual move. The gaonELOMOBEN9EHUDATHEREFORESUBMITTEDAPETITIONTOALHIRINWHICHHEASKEDTHECALIPHTODENYTHE)RAQILEADERSREQUESTTHEPETITIONSURVIVEDINthe Geniza in a later copy transcribed into Hebrew characters.23

2143RECTOLINES'OITEINED.EW3OURCESDOC'OITEIN0ALESTINIAN*EWRYIN%ARLY)SLAMICPP'IL0ALESTINE, doc. 51.224HETACTICOFCITINGPRECEDENTWASNOTRESTRICTEDTOINVESTITURESINOCE!DECREEOFALHIROFRENEWINGTHEPRIVILEGESOF3T#ATHERINESIMILARLYENUMERATESTHEIRPREVIOUSCONRMA-TION4HECALIPHIMMSAL-UIZZAL!ZZANDALKIMMAY'ODSANCTIFYTHEIRSOULSORDEREDDECREESTOBEDRAWNUPCONRMINGFORYOUALLTHISTHEPRIVILEGESENUMERATEDABOVE9OUTHENasked for a decree to be drawn up renewing everything that the caliph-IMM-s granted to you, TOCONRMTHEPROTECTIONTHATTHEYEXTENDEDTOYOUALLANDTOOBSERVETHESEBONDSANDCOV-enants (AIMMADUETOYOU4HECOMMANDEROFTHEFAITHFULHASTHEREFOREORDEREDTHATADECREEBEDRAWNUPORDERINGALLTODEALWITHYOUACCORDINGTOTHATEARLIERTEXTANDINCONFORMITYwith the explanation that you have written. Archive of the monastery of St. Catherine, Sinai, 3TERNED&IMID$ECREES, doc. 1.23.EW9ORK*EWISH4HEOLOGICAL3EMINARYOF!MERICA%.!'OITEIN#ONGREGATIONversus Community; Gil,0ALESTINEDOCSEEALSO+HAN4HE(ISTORICAL$EVELOPMENTP



The gaonSPETITIONTOALHIRSUGGESTSJUSTHOWSIMPLEAMATTERITMAYhave been for the caliph to grant an investiture. He therefore found himself INTHEUNENVIABLEPOSITIONOFEXPLAININGTOTHECALIPHTHATTHE)RAQICAMPWASattempting to usurp a privilege for which there was no prior precedent:

4HISAAIRISAMACHINATIONOFTHEPARTISANSOF9SUFAL3IJILMSWHOAREAGITATINGFORTHE)RAQILEADERYAHARALTAAUBALIRASILIRQ&ORTHEYHAVEdecided with him that, should he succeed in obtaining a rescript (TAWQFROMTHE0RESENCETHE#ALIPHSECURINGLEADERSHIPFORHIMSELFTHISWOULDSTRENG-THEN THEM IN WHAT THEY INTEND TO DO FOR 9SUF AL3IJILMS AND HISsupporters.

The gaon JUSTIESHISPETITIONONTHEBASISOFTHREEARGUMENTSTHESAMEones the documents of investitures use: the customs of the Jewish religion; the justice of the ruler; and the precedent set by previous practice and by the state itself.

In arguing for Jewish custom, the gaon cites three distinct bodies of rules: the administrative law of the Jewish religion (QNNALMAHABMAHABin THESEDOCUMENTSCANMEANEITHERARELIGIONORADISTINCTSCHOOLWITHINITSACREDTEXTTHE4ORAHANDCUSTOMRASM

It is the law of our school (QNNALMADHHABTHATTHERESHOULDBENOCHIEFDOMabove the chiefdom of Jerusalem, for the Holy City is the place towards which *EWSTURNINPRAYERAND'ODMAY(EBEEXALTEDHASORDEREDTHEMTOOBEYthe command of the leader who will be in Jerusalem and to follow his authority; he who disobeys him disobeys God. This is witnessed in our Torah. Just as the body cannot exist with two heads, so there is no learning in a town with two judges (QAYN4HESESYNAGOGUESHAVEBEENASCRIBEDTOTHE)RAQISBECAUSEthey have the custom (RASMOFOBSERVINGASECONDDAYOFHOLIDAYAFTERTHEYHAVEOBSERVEDTHERSTDAYWITHUS4HELEADERSOF*ERUSALEMPERMITTEDTHEMTHISASAFAVOURALARQALTAFAULSOTHATTHEYCOULDPRAYTHEREONTHEDAYof their holiday, which is the day after our holiday, which they keep together WITHUSBUTTHEYPERMITTEDTHEMNOTHINGELSE

The last sentence emphasizes that the GAON possesses the prerogative of granting privileges, and grants them as benefactions rather than rights. I hasten to add that the Torah does not, in fact, say any such thing about obeying the command of the leader of Jerusalem, and the gaon is resorting here to a patently rhetorical stance. That said, when it comes to law, he seems to choose his words carefully: he speaks of QNN rather than QH orARA (the PLAIN!RABICEQUIVALENTOFTHE(EBREWHALAKHAPERHAPSTOUNDERSCORETHAThaving a single Jewish leader in Palestine falls under the rubric of adminis-trative rather than religious law; and he speaks of RASM rather than SUNNA, again perhaps to distinguish administrative precedent from religiously bin-

I have altered Goiteins translation.


318 MARINA RUSTOW

ding divine commandment. This passage suggests, then, that IMMSmay have been perfectly aware that they were operating within a legal system that rested on administrative law and was distinct from the worlds of QHHALAKHAor other types of divine law mediated and interpreted by religious authorities.

As for caliphal precedent, the gaon similarly demonstrates an acute awa-reness of bureaucratic procedure, down to the terminology he uses to describe decrees (SIILLTANDHISKNOWLEDGEOFTHEFACTTHATTHEYWEREPRESERVEDINgovernment registers or archives (DAWWN

4HEPURE0RESENCETHECALIPHHASMADEGRANTSINNUMEROUSDECREESSIJILLTTOMANYLEADERSOVERTIMEAFACTTOWHICHTHEARCHIVESTESTIFYALJBIRILUHRILDAWWNUTASHHUDUBIALIKBUTTHEYHAVENOTMADEFORANYOFTHEMAPARTNERin what they have bestowed upon them, for the edict (SIJILLOFTHEGOVERNMENTMAY'ODBESTOWGLORYUPONITSVICTORIESHASBEENWRITTENALACUNAFOLLOWS

The gaon thus makes it perfectly clear that he is aware of what documents mean and of the importance of the precedents to which those documents attest. 7HETHERALHIRISSUEDANEWDECREEOFINVESTITURETOELOMOBEN9EHUDA

RECONRMINGHISPRIVILEGESWEDONOTKNOWSINCETHISPETITIONISALLTHATHASsurvived, but it stands to reason, since he served as gaon for another two DECADES(EMAYALSOHAVEISSUEDADECREETOTHE)RAQISORDERINGTHEMTOFOL-low elomo ben Yehuda, since these petitions often resulted in two decrees, one to the petitioner and another to the party over whom authority needed to be exercised.#HRISTIANSTOOUSEDTHESTATETORESOLVELEADERSHIPCONICTSEVENIFDOCU-

MENTARYEVIDENCETOTHATEECTHASNOTTOTHEBESTOFMYKNOWLEDGESUR-vived. The Coptic chronicle known as 4HE(ISTORYOFTHE0ATRIARCHSOFTHE%GYPTIAN#HURCHrecounts an episode of intense dissatisfaction with the patriarch Cyril OF!LEXANDRIAANDINHISOPPONENTSTRIEDTOHAVEHIMDEPOSEDBYAPPEA-ling to the Fatimid AMRALUYthrough his Christian groundskeeper. In RESPONSETOTHEPETITIONTHEVIZIER"ADRALAMLDEMANDEDTHATTHEPA-triarch present himself at the court in Cairo on a regular basis, and that was how the patriarchate moved from Alexandria to Cairo. The move was of great advantage to the high leadership of Coptic church, because it allowed the patriarch easier access to the caliphs and the chancery; but it also created FURTHERCONICTSINCETHEPATRIARCHOF!LEXANDRIAEVENTUALLYDISPLACEDTHEbishop of Cairo as the main representative of the church in the capital. The rivalry between the two was so intense that the next patriarch, Michael IV

!TIYAETAL, (ISTORYOFTHE0ATRIARCHSOFTHE%GYPTIAN#HURCHVOL))FOLRV



FORCEDTHEBISHOPOF#AIROINTOEXILENOTONCEBUTTWICE25 We can assume that in petitioning the caliph, Copts used the same administrative procedures abundantly attested among Jews and Melkites.4HEPETITIONSINCASESOFCONICTDEMONSTRATETHATINVITINGGOVERNMENT

INTERVENTIONINTOTHATMOSTINTIMATEOFDECISIONSWHOWOULDLEADONESRELI-GIOUSGROUPANDREPRESENTITBEFORESTATEAUTHORITIESDIDNOTTHREATENTHEfundamental rights or prerogatives of the community to practice their reli-gion without interference. On the contrary: from the leaders point of view, state support strengthened the communitys autonomy rather than weake-NINGITELOMOBEN9EHUDAOBJECTSAFTERALLTOTHESUBSTANCEOF9SUFAL3IILMSSAPPEALSTOTHECALIPHBUTNOTTOHISMETHODS

This is an important conclusion when viewed in comparison with medieval Christian Iberia, where seeking justice outside the legal and administrative framework of the Jewish community often met with aggressive condemnation FROMRABBINICLEADERSDESPITETHEFACTTHATTHELEADERSTHEMSELVESALSORELIEDon the coercive power of the state, or precisely because of it. But while in the west, rabbinic leaders branded those who sought justice outside the Jewish community as traitors and informers (malinimTHEEASTERNMATERIALHIGHlights the fact that anyone branded an informer was neither more nor less loyal to the Jewish community than the leaders were. In practice, communal autonomy was not as jealously guarded a privilege as modern scholarship on premodern Jewish communities once believed. This is a point that has been made by Elka Klein and Jonathan Ray for Christian Iberia, and by Tamer El-,EIY5RIEL3IMONSOHNANDMYSELFFORTHE)SLAMICEAST"UTITHASNOTTOTHEbest of my knowledge, yet been made for IMMS in the Islamic west.26

Thus far, appeals to the state from leaders and groups; to follow, appeals from individuals.

$SSHDOVIRUDLG)NPRINCIPLEANYINDIVIDUALCOULDAPPROACHTHESTATEWITHREQUESTSFORAID

in personal matters. Petitions have survived from great merchants, middling traders and the poor alike, and they suggest the range of people who had or MANAGEDTONDACCESSTOOCIALCHANNELS )T IS FREQUENTLY IMPOSSIBLETO

25&ORASUMMARYOFTHEAAIRSEE#OHEN*EWISH3ELF'OVERNMENTIN-EDIEVAL%GYPT, PP26+LEIN*EWS#HRISTIAN3OCIETYAND2OYAL0OWERIN-EDIEVAL"ARCELONA, pp. 26-51; Ray, 4HE3EPHARDIC&RONTIERPPEL,EIthy, Coptic Culture and Conversion in Medieval Cairo; Simonsohn, Communal Boundaries Reconsidered; Simonsohn!#OMMON*USTICE; Rustow, (ERESYANDTHE0OLITICSOF#OMMUNITY, chapter 3 ETPASSIMand Rustow, At the Limits of Communal Autonomy, pp3EEALSOTHESTILLEXCELLENTANALYSISIN"ARON4HE*EWISH#OMMUNITY, vol. 1, pp. 21-25 ANDVOLPP


320 MARINA RUSTOW

DETERMINETHERELIGIOUSALIATIONOFTHESEPETITIONERSBUTWHERETHEIRA-LIATIONSARECLEARTHEREISNODISCERNABLEDIERENCEBETWEENPETITIONSFROMMuslims and from IMMS.4HUSAHUMBLEBAKERFROM&USNAMED!B!BD!LLHB9AYTHE

NAMESAREATTESTEDAMONG*EWS#HRISTIANSAND-USLIMSALIKEPETITIONEDAL!IDFORHELPINREPAYINGADEBT(UMBLETHOUGHHEMAYHAVEBEENASARESIDENTOF&US#AIROHEALSOHADACCESSTOHIGHLYtrained professional petition-writers, to judge by his petition, which is an impressive specimen of the genre, more than half a meter long and written in an experienced and cursive chancery hand. The baker reports that

he is a poor man, with a family and children and that he has a debt to a man CALLED!BDAL"AQ)BN7ARDARBUTISTOOPOORTOPAYITBACK4HEAFOREMEN-TIONEDCREDITORISDEMANDINGITFROMHIMINACRUELFASHION4HESLAVEREQUESTSas a kindness and benefaction, the issuing of an incontrovertible ordinance to the mighty judge (MUTAWALLALUKMALAZZTOEXAMINEHISSITUATIONANDdivide the debt into installments according to his condition, and to treat him LENIENTLYSOTHATHEMAYNDTHEMEANSTODWELLINHISNATIVECITYWAANIHto support his beloved family, and to live a new life in these days of the (com-MANDEROFTHEARMIESTHEVIZIERMAY'ODMAYHEBEEXALTEDCAUSETHEMTHEARMIESTOENDUREANDMAKEETERNALTHEREIGNOFTHEIRSOVEREIGNASAbenefaction and kindness to him.

4HEMIGHTYJUDGEWHOISASKEDTOINVESTIGATETHEBAKERSCASEISIDENTIEDONTHEVERSOOFTHEPETITIONWHICHCONTAINSTHECALIPHALRESCRIPTONEOFVERYfew extant petitions that have survived together with the decision on verso. 4HERESCRIPTISWRITTENINTHENEANDBROADPENSRESPECTIVELYOFTHETWOMAINCHANCERYOCIALSRESPONSIBLEFORPROCESSINGCASESTOGETHERWITHASUPERBSPECIMENOFANALMAOCIALSIGNATURE4HERESCRIPTCONRMSTHEBAKERSREQUESTNOTINGTHAT

an instruction has been given to the prosperous and trustworthy Q+AMLAL$NTOCLARIFYTHEPETITIONERSSITUATION)FHISPOVERTYISESTABLISHEDINTHEMANNERINWHICHSUCHMATTERSARENORMALLYESTABLISHEDLETHIMLOOKINTOHIScase as the Law (ALSHARREQUIRESANDASTHECASEDEMANDS!NDITTHISRESCRIPTshould be deposited in his hand.

4HEUSEOFTHETERMARINTHISCONTEXTISNOTEWORTHYITISARAREINSTANCEin which the divine law of Islam is invoked as a guiding factor for a decision in a MALIMcase. Yet it is perfectly clear that such an invocation is made only because the case is delegated to a Qand so might, in the present state of research, be regarded as an exception.

/NTHISPHRASESEE+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSN43!R+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSDOC&ORFURTHEREXAMPLESSEE3TERN0ETITIONSFROMTHE!YYUBID0ERIODDOCSAND



From the fact that this rescript survived in the Geniza, we can assume that the baker was handed it back and that the Qindeed received a decree ins-tructing him to investigate the case. Whether the baker was then actually allowed to pay his debt in installments we do not know.

The intersection of administrative law and AR law appears in another kind of case: IMMIs who turned to the chancery asking to be exempted from THEIZYA!FRAGMENTOFONESUCHPETITIONHASSURVIVEDFROMTHE&ATIMIDperiod, submitted by a Jew and preserved in the Geniza; the fragment is too incomplete to permit a precise dating, but the formulary suggests the sixth/twelfth century.302ECENTLYTHESLAVEWASAICTEDWITHADISEASEINHISEYESand he lost his sight, says the petitioner, speaking in the third person.

(ECANNOLONGERLOOKAFTERHISWORLDLYAAIRSNORENGAGEINHISPROFESSIONHEand his family are dying of hunger. But the JIZYAcollectors in Fustat are pressing HIMFORPAYMENTANDTHISHASCAUSEDTHESLAVESUERINGANDLEDTOHISIMPRI-sonment and his wasting away and that of his family through hunger and ISOLATIONANDTHROUGHFEAROFBEINGASKEDTOPAYWHATHECANNOTAORD&ARBEITFROMTHESEGLORIOUSDAYSIETHECALIPHTHATAPOORBLINDMANSHOULDBEREQUIREDTOPAYTHEJIZYAand be treated with contempt by the tax collectors.

Though there is a fair amount of boilerplate rhetoric in this petition (claims of wasting away from hunger are common in petitions from the poor, EVENIFTHEYMAYWELLHAVEBEENTRUETHEAMOUNTOFTAXFORWHICHTHEMANis liable corresponds with the lowest rate listed in contemporaneous hand-books, a fact consistent with his claims of hardship.31 Although the outcome OFHISREQUESTISUNKNOWNITISREASONABLETOASSUMETHATITHADACHANCEOFmeeting with a positive reply: in order to have a petition written up by a professional, one had to present a case that was at least feasibly meritorious. 4HEVIZIERMIGHTHAVEDIRECTEDADECREETOTHEGOVERNORORMILDIRECTOROFTHESCIN&USASKINGTOINVESTIGATETHEMANSCASEANDIFFOUNDMERITO-rious, to release him from prison and forgive his debt.

The state could, then, be expected at least to consider exempting someone FROMTHEIZYAWITHOUTCOMPROMISINGHISLEGALPROTECTIONASAHLALIMMA, a POINTTHATGOESTOTHEHEARTOFTHEJURISDICTIONALQUESTIONOFSTATEADMINISTE-red law vs. QH: perhaps not in principle, but certainly in practice, the state POSSESSEDANDEXERCISEDTHEPOWERTOEXEMPTPEOPLEFROMARSTATUTESALLthe more so in a legal relationship that ultimately concerned the states obli-gation to protect AHLALIMMA.

3043!RRECTOLINES+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTS, DOCHISDATING)HAVEALTEREDHISTRANSLATION31+HAN!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSN&ORPETITIONSFROMTHEPOORTOWEALTHYMEMBERSANDOCIALLEADERSOFTHE*EWISHCOMMUNITIESOF%GYPTINTHEELEVENTHANDtwelfth centuries, see Cohen, 0OVERTYAND#HARITYINTHE*EWISH#OMMUNITY; Cohen, 4HE6OICEOFTHE0OORINTHE-IDDLE!GES.


322 MARINA RUSTOW

)FITISPOSSIBLETHATBOTHTHESEPETITIONSWERESUBMITTEDBY*EWSTHATwould be the simplest explanation for the preservation of their petitions in THE'ENIZATHEREAREOTHERPETITIONSFROMTHE'ENIZATHATWERECLEARLYSUB-mitted by Muslims, and these demonstrate that the procedure and the justi-CATIONSFORDECISIONSWERENODIERENTFORCASESOF-USLIMSANDIMMS. )NONESUCHCASETHEADMINISTRATOROFAN)SMLMOSQUEPETITIONEDTHE

Fatimid princess Sitt al-Mulk (-/THEDEFACTORULEROF STATE FOR TWOYEARSAFTER THEDEATHOFHERBROTHERALKIM/1021/SEEKINGHELPCOLLECTINGTHERENTSONPROPERTIESATTACHEDTOTHEMOSQUE(EASKSAGAININTHETHIRDPERSON

for a benefaction in the form of a decree (MANSHRFROMHER0RESENCEMAYSHEbe preserved, to the governor of the district and the administrator of its juris-DICTION STRENGTHENING THEHANDOF THEAFOREMENTIONED ADMINISTRATOR INEXTRACTINGINCOMEFROMTHESEFOUNDATIONSACCORDINGTOWHATCAMEBEFOREANDWHATWILLRESUMESTRENGTHENINGHISAAIRASSISTINGHIMAIDINGHIMANDbeing solicitous toward him in everything that occurs regarding the repairs of THECONGREGATIONALMOSQUE32

4HEJUSTICATIONSHEOEREDWEREAGAINPRECEDENTANDTHEPERSONALQUA-LITIESOFTHERULERPETITIONERSWHOWERELIKETHE&ATIMIDRULERS)SMLSWERENOTSUBJECTTOADIERENTSETOFCONSIDERATIONS4HEUNDERPINNINGSOFMALIM DECISIONSTHENPROVIDEANEXPLANATIONFORTHEEQUALTREATMENTOF IMMS and Muslims in the administration of MALIMjustice.

This is a point worth emphasizing not just because of the subaltern status of IMMS in Islamic law. It is also worth emphasizing for the converse reason: ATLEASTONEOCIAL)BNALAYRAFLAMENTEDTHATPETITIONSFROMIMMS were ANSWEREDPREFERENTIALLY/NEGRANTSAFAVORABLEDECISIONHECOMPLAINEDonly when releasing IMMSfrom the JIZYAor building churches and the like, since some of the people rendering decisions are Christians.33 Whether or not IN)BNALAYRAFSPERIODTHEREWEREMANY#HRISTIANSWORKINGINTHECHANCERYor simply too many for his taste, the evidence for the Fatimid period on aggre-GATESUGGESTSTHATTHEREWASLITTLEDIERENCEINHOWPETITIONSFROMEACHGROUPwere handled.

32"ODL-3(EBB2USTOW0ETITIONTOA7OMANATTHE&ATIMID#OURT33)BNALAYRAF1NNDWNALRASil, p. 151.)TISIMPOSSIBLETOKNOWWITHANYCERTAINTYWHETHERPETITIONSWEREANSWEREDIFTHEYDONOTalso contain rescripts, and in some instances, even if they do. But even petitions without RESCRIPTSMAYHAVEBEENDRAFTSOFWHICHANALCOPYWASMADEANDTHENANSWEREDORTHEYMAYhave been answered with separate decrees when the chancery delegated enforcement to local GOVERNORSANDOTHEROCIALSANDNOMINUTEWASKEPTONTHEPETITIONITSELF!SSUMPTIONSINEITHERDIRECTIONAREEQUALLYDANGEROUS0ETITIONSAREASWELLNOMORELIKELYTOHAVEBLANKversos if they are from one group or another, and so within the limitations of the evidence, it ISREASONABLETOCONCLUDETHAT)BNALAYRAFSCLAIMSSHOULDNOTWITHOUTOTHEREVIDENCEBEtaken to represent the reality of the Fatimid period. For one case in which a separate decree



Indeed, although the evidence Ive brought here is from the Fatimid pe-riod, it would be hasty to assume that the Fatimids, as a heterodox minority, were exceptionally lenient in their treatment of IMMS or that MALIM justice under other dynasties treated IMMS more harshly. The idea that the Fatimids were particularly generous toward religious minorities is an artefact of the anti-Fatimid propagandists of the post-Fatimid period.35 One example OFTHISKINDOFANTI&ATIMIDPROPAGANDAONETHATMODERNSCHOLARSHAVETOOFREQUENTLYQUOTEDOUTOFCONTEXTISANANECDOTEFROM)BNAL!RSAL+MILFLTRINWHICHTHEDISSATISED-USLIMSOF#AIROPETITIONTHECALIPHAL!ZZto curb the power of two IMMOCIALS

!L!ZZ APPOINTEDTHE#HRISTIAN SB.ASRSTOTHEranks of his bureaucrats and designated as his governor in Syria a Jew by the NAMEOF-ENASHSHE)BNAL1AZZZ4HE#HRISTIANSANDTHE*EWSWAXEDPROUD(iTAZZABECAUSEOFTHESETWOANDHARMEDTHE-USLIMS4HENTHEPEOPLEOFFustat resolved to write a petition (QIAANDPUTITINTOTHEHANDOFADOLLRAthat they had made of paper. It read: By Him who has strengthened (aAZZATHE*EWSTHROUGH-ENASHSHEANDTHE#HRISTIANSTHROUGHSB.ASRUSANDWHOHASHUMBLEDTHE-USLIMSTHROUGHYOUTHECALIPHWILLYOUNOTEXPOSEthe injustice that has been done to me (the doll; ULMAT

They placed this doll with the petition (ALRUQaINITSHANDINAL!ZZSPATHWhen he saw it, he ordered that it be brought to him. When he read what it contained and saw the paper doll, he understood what was intended by it. So HEARRESTEDBOTHOFTHEM(ECONSCATEDDNRSFROMSANDTOOKAgreat sum from the Jew.36

This satirical anecdote, chronicling the downfall of two IMMHIGHOCIALSthrough the ruse of a MALIM petition submitted in the hands of a paper

WASEXPLICITLYREQUESTEDSEE43!R3TERN4HREE0ETITIONSOFTHE&IMIDDOCANDKhan, !RABIC,EGALAND!DMINISTRATIVE$OCUMENTS, DOCAPETITIONLODGEDSOMETIMEDURINGTHEREIGNOFAL-USTANIRBYAMANWHOSESONWASROBBEDANDKILLEDANDWISHEDTOBRINGTHEPER-petrators of the crime to justice. His twenty-three-year-old son had been traveling up the Nile TOWARD!LEXANDRIAWITHANOTHERYOUNGMERCHANTCARRYINGVEHUNDREDDNRS in coin and TWOHUNDREDINGOODSENORMOUSSUMSINAPERIODINWHICHTWOdnR-s could support a mid-DLECLASSFAMILYFORAMONTHWHENTHECAPTAINANDSAILORSOFTHEIRVESSELMURDEREDTHEMANDtook their property. The father asks for a rescript to be issued to the lieutenants of the prosper-ous AMR3INNAL$AWLAPRESUMABLYTHEGOVERNOROFTHEDISTRICTINWHICHTHEYWEREKILLEDTOarrest those sailors and the captain of the boat and to investigate this case, so that the truth-FULNESSOFWHATTHESLAVEHASSAIDINTHERESTOFTHEPETITIONBEKNOWN4HEVERSOISBLANK3EEalso the internal memoranda to do with the processing of petitions, Khan, !RABIC,EGALAND!DMINISTRATIVE$OCUMENTSDOCS35)TMAYHAVEROOTSINDISSENTAMONGLATE&ATIMIDOCIALSTHEMSELVES)BNALAYRAFISONEEXAMPLESEEALSO9ARBROUGH)SLAMIZINGTHE)SLAMIC3TATECHSANDWHICHTHROUGHCAREFULsource-critical methods, locates the origins of a strain of later medieval polemics against IMMOCIALSINATEXTPOSSIBLYCOMPOSEDBYALATE&ATIMIDOCIAL36)BNAL!RAL+MILPPPTHEACCOUNTHASMANYLATERPARALLELS


324 MARINA RUSTOW

DOLLISUSUALLYREADEITHERASATRIUMPHALISTINVECTIVEAGAINSTIMMS or a 3UNNACCUSATIONAGAINSTTHEHETERODOX&ATIMIDS)NDEED)BNAL!RWASNOFRIENDOFTHE&ATIMIDSHESERVEDTHE:ENGIDRULERSOF-OSULANDFOUGHTAGAINSTTHE#RUSADERSWITH3ALADINSOWASANINTEGRALPARTOFTHE3UNNREVIVALINthe post-Fatimid age; in this passage, he forwards his argument for the indis-SOLUBLEASSOCIATIONOFAL!ZZWITHIMMpower by punning on the caliphs name: the IMMS waxed proud (iTAZZABECAUSEOFTHESETWOOCIALS'ODHADstrengthened (aAZZATHEIMMSTHROUGHTHEM"UTSURELYITISALSOSIGNI-CANTTHAT)BNAL!RUSESHISCHANCERYVOCABULARYINAPRECISEMANNERTHEdoll is holding a QIAor a RUQa, the technical terms for a petition; and the INJUSTICETOTHE-USLIMSOF&USISCALLEDAULMA, again a technical term in the context of MALIM procedure. The only thing that veers from the norm in )BNAL!RSDEPICTIONISTHERUSEOFTHEDOLLALITERARYDEVICEINTENDEDTOunderscore the fear these Muslims felt in approaching the caliph directly. While this anecdote is cast in anti-IMMterms, then, in fact, the very exis-tence of the MALIMprocedure was more favourable to IMMS than it lets on. !NDWITHTHAT)TURNTOTHELASTCATEGORYPETITIONSCOMPLAININGOFOCIAL

abuse.

&RPSODLQWVDJDLQVWRIFLDOV/NEOFTHEPRIMARYPURPOSESOFPETITIONSWASTOREPORTOCIALSTOTHE

central administration in Cairo when they overstepped the legitimate boun-DARIESOFTHEIROCE4HISMECHANISMFUNCTIONEDTODEFENDTHEINTERESTSOFSUBJECTSBUTITWASALSOINTENDEDTOKEEPOCIALSFROMGETTINGTOOPOWERFULand thus to serve the interests of the ruler. 4OWARDTHEBEGINNINGOFTHEGREAT%GYPTIANFAMINEOFA

MANFROMTHE&AYYMPETITIONED3ITTAL-ULKINDISTRESSANDNEEDDUETOshortage of food and fodder for the donkey. There had already been a low .ILEOODANDBADOODSMEANTFEAROFSHORTAGETHEMANTHEREFORESENTHISSONTOTHEMAINCITYOFTHEREGION-ADNATAL&AYYMTOBUYONEHUNDREDDNRSWORTHOFOURANDBARLEY/NEHUNDREDDNRs was a huge sum of money, large enough to suggest that the man had collected funds from his entire village or was attempting to stockpile grain before prices mounted. With the MONEYHISSONPURCHASEDSEVENTYSACKSOFOURENOUGHTOFEEDANEXTENDEDFAMILY FORVEYEARS EVENWITH FREQUENTMEALTIMEVISITORSBUT THENHIStroubles began: the news reached me, he wrote, that his son had been forced TORELINQUISHTHESACKSOFOURTOALOCALAMRINHISDELICATEPHRASINGTHAThe had given them over to my lord theAMR!B-UAMMADALASANBIQAT

%.!2USTOW!3ECOND0ETITIONTOTHE&ATIMID0RINCESSINPROCESS



AL$AWLAMAY'ODPROLONGHISPOWER &ROM THIS LACONIC STATEMENT IT ISunclear whether the AMRCONSCATEDTHEGRAINONORDERSTOBRINGITTOTHEcapital for redistribution or acted on his own corrupt initiative, but the rest of the petition gives more weight to the latter possibility. The mans despera-tion emboldened him to ask Sitt al-Mulk, may God make her dominion eternal and strengthen her power, to send a eunuch to the local governor (QIDTOTAKEADECREEFROMHIMRELEASINGTHEMTHESACKSOFOURASSOONASTHEYREACHTHE.ILEPORTOF'IZAFROMWHENCETHEYWOULDHAVEENTEREDTHECAPI-TAL4HESPECICITYOFTHELOGISTICALDETAILSSENDINGAEUNUCHTOAGOVERNORto fetch a decree and courier it to Giza in the hopes that it would arrive before THEGRAINDIDDEMONSTRATESTHATOURPETITIONERHADACCESSTOOCIALPETITIONwriters with some understanding of how the government operated; it there-FORESUGGESTSTHATHISREQUESTFELLWITHINTHERANGEOFTHEPOSSIBLEANDTHUSthat he was protesting the act of a rogueAMR rather than the policy of an entire state.

From the rulers point of view, taking the side of a petitioner against his ORHEROWNOCIALSCOULDBEAPRUDENTMANOEUVERATTHEVERYLEASTANOPPOR-TUNITYTOEARNSUBJECTSLOYALTIES4HUSINWHENTHEMONKSOF3TCatherine objected that some local administrators had usurped income from THEMONASTERYS ENDOWMENTS THE SOONTOBE CALIPH AL ANDHISVIZIER!B !L!MAD+UTAYFTBAL!FAL B"ADRALAMLWHOLIKEHISFATHERWASTITLEDAL!FALDIDNOTHESITATETOTAKETHEside of the monks

OVERTHATOFTHETREACHEROUSADMINISTRATORSWHOHAVELAIDHANDSUPONTHEaforementioned property and stolen the rents that (the monasterys business AGENT!BDAL-ASUSEDTOCOLLECTANDSPENDONTHESUPPORTOFTHEMONKSwho live there, the travellers who take refuge there, and passers-by who FREQUENTITWHETHERMEMBERSOFTHEIRRELIGIONORNOT4HISMADEITNECES-sary for an order to be issued by the regent (WAL AHDALMUSLIMNANDHISSERVANTANDCOMPANIONTHEMOSTMIGHTYLORDAL!FALCOMMANDEROFTHEARMIESTHEVIZIERTOTHECHANCERYMAYITOURISHTOWRITETHISDECREESIJILLMANRRELEASINGTHISENDOWMENTINALLNANCIALDEPARTMENTSOFTHEGOVERN-MENTFROMTHEBEGINNINGOF$HL1ADAFURTHERFREEINGTHEMof all imposts and other dues that they pay and that are imposed upon them ANDHAVEBEENTAKENFROMTHEMINTHEPASTASABENEFACTIONONTHEPARTOFthe regent (WAL AHDALMUSLIMNANDHISSERVANTANDCOMPANIONTHEMOSTMIGHTYLORDAL!FALCOMMANDEROFTHEARMIESTHEVIZIERANDSOASTOEXE-cute justice in a publicly known fashion (WAIJRANLILUMRIALQNNILADLILMASHHRILMARF

!RCHIVEOFTHEMONASTERYOF3T#ATHERINE3INAI3TERN&IMID$ECREES, doc. 3; I have altered his translation.


326 MARINA RUSTOW

)NDECIDINGTOPROTECTTHEMONKSFROMSTATEOCIALSTHEFUTURECALIPHANDthe vizier not only uphold the laws concerning endowed property; they also grant the monastery a massive remission from taxes, trumpeting the decision as the execution of justice in a publicly known fashion. Given other letters that have preserved complaints about the crushing burden of government taxation, it should be noted that few subjects, whether Muslim or IMM, en-joyed privileges as generous as these. And that, in turn, suggests that whether a subject was Muslim or IMMISPERHAPSNOTTHEMOSTINTERESTINGQUESTIONto be asked of MALIMMATERIAL4HEINTERESTINGQUESTIONISRATHERHOWSUB-jects from humble backgrounds managed to have petitions written and to use state-sanctioned mechanisms to pursue and preserve their own interests.

7KHGRFXPHQWVVXPPDU\The petition-and-response procedure allowed subjects an extraordinarily

wide latitude to demand RIGHTS. I use the word rights advisedly, to mean inte-rests protected and pursued by law, or services provided on a guaranteed basis. Rights can, of course, exist even if they are not supported by a moral or anthropological theory of guarantees such as the one associated with the Enlightenment in Europe. The notion that rights were an invention of eighteenth-century Europeans and colonials is simply untrue. Islamic legal texts speak of rights, whether supported by divine command or not, and those rights were protected by law neither more nor less than the universal rights of man are today. The legal texts discussed here speak of rights, UQQ, as when the gaon ELOMOBEN9EHUDAWARNSTHECALIPHALHIRTHATGRANTINGHISRIVALan investiture will lead to the abrogation of rights (BAALATALUQQ Should one object that rights is an anachronistic translation for a medieval use of UQQ, then one can translate it instead as ones due, property, rightful pos-sessions, legal claims and still come to the same conclusion: people approa-ched the state with claims to property and just treatment.

To summarize my argument thus far, then, the petition-and-response pro-cedure that lay at the heart of MALIM justice provides evidence of a realm of LAWNOTREECTEDINSOURCESWRITTENBYQUTand FUQUH4HESEDOCUMENTSinvoke precedent, law, justice, and even the language of rights; they demons-trate that IMMS and Muslims were subject to similar treatment by the state; and they suggest that it is more productive to examine power relations with-out prejudice of legal status. As for the rulers, the most important considera-TIONSINRHETORICANDPERHAPSEVENINPRACTICEARETOPROTECTTHEMSELVESfrom corrupt appointees and to meet their obligations to protect their sub-

3EEABOVEN



JECTSTODIRECTTHEAAIRSOFTHECOLLECTIVITYOF-USLIMSASWELLASIMMS, in THEMANNERCORRESPONDINGTOTHEIRACCUSTOMEDGOODWILLASALWRITESINTHEDECREEOFTOTHEMONKSOF3INAI

,PSOLFDWLRQVIRUWKH,VODPLFZHVWThis material suggests that it can be of use to study the MALIMprocedure

and other non-AR judicial institutions in the Islamic west. Even where only NARRATIVE ANDPRESCRIPTIVE SOURCESHAVE SURVIVED EXPANDING THE INQUIRYbeyond the realm of QHcan help place conclusions about the actual status of IMMSONARMERHISTORICALBASIS

The west provides a distinctly interesting and challenging arena for inves-TIGATIONOFTHISTOPICBECAUSETHE-LIKSCHOOLFORMALLYADMITTEDTHATQSpossessed the right to determine law in conformity with SIYSA, that is, in conformity not only with what the ARA commanded but with what utility NECESSITATEDWHATJURISTSDENEDASALSIYSAALARIYYAthe states discretio-nary legal power to promulgate administrative laws and to enforce ARARULINGS And, as Christian Mller points out in his paper in this volume, SOMEWESTERNULAMHELDASAPOINTOFPOSITIVELAWTHATIMMSWEREEQUALto Muslims in MALIM, surely not the assertion of a small exception in an otherwise unremitting sea of Muslim-IMMINEQUALITYSAYINGTHAT*EWSAND#HRISTIANSWEREEQUALTO-USLIMSINMALIMISNOTLIKESAYINGTHEYWEREEQUALINTORTSORINCOURTPROCEDURE)TISSAYINGTHATTHESTATEGRANTEDTHEMANEQUALright to bypass the ARAto appeal the decisions of Q courts and their own COURTSALIKEANDTOLODGECOMPLAINTSTOTHESTATEANDMAKEREQUESTSOFIT4HEstate, in turn, had the authority to make decisions on considerations not in-cluded in the body of QHas some jurists theorized and as the eastern docu-ments abundantly attest. In theory, then, while IMMLAWREQUIRED*EWSANDChristians to make repeated public performances of their subordination to Muslims, in practice, the rights of a IMMcould be defended over those of a Muslim; in theory, while IMMS had to manifest their subordination by PAYINGTHEIZYA, which served as the main condition on which they were le-gally allowed to remain non-Muslim, in practice, they could be exempted from THEIZYAwithout losing their IMMstatus. These ideas must remain, for the MOMENTSUGGESTIVEATBESTTHEQUESTIONISWHATCANBELEARNEDOFTHEMALIMSPHEREINTHEWESTNOTJUSTABOUTIMMS rights within it, but about their UNDERSTANDINGANDUSEOFITINREALSITUATIONSANDHOWTHOSEAECTEDTHEIROVERALLSOCIALPOSITION

3EEABOVEN4YAN(ISTOIREDELORGANISATIONJUDICIAIREPP


328 MARINA RUSTOW

Perhaps more immediately, while the Fatimid sphere can serve as a useful comparandum for modern scholars of the medieval Islamic west, for medieval western rulers themselves, the Fatimid rulers served as models to be emula-TED7HENTHE5MAYYADCALIPH!BDAL2AMN)))OF#ORDOBAREORGANIZEDHISADMINISTRATIONINHEINSTITUTEDAdwNALMALIMand in doing so, HEMUSTHAVEHADINMINDTHEEXAMPLEOFTHE&ATIMIDSOF)FRQIYAASHEDIDWHENHEBUILT-ADNATAL:AHRINIMITATIONOFTHE&ATIMIDCAPITALSOFAL-A-HDIYYAANDAL-ANRYYAANDASHEDIDWHENHEPROCLAIMEDHIMSELFCALIPHto begin with.)NTENTHCENTURY)FRQIYATHE&ATIMIDSALREADYHADAWELLdeveloped MALIMPROCEDURETOJUDGEBYAL1AL.UMNSDESCRIPTIONOFit, the accessibility of the caliphs was a hallmark of their rule and of his pro-paganda for it. And just as the use of MALIMhad a long history in the Islamic WORLDITHADANIMPORTANTANDPALPABLEINUENCEONTHE#HRISTIANWORLDASWELL)BNAL!RPRAISESTHE.ORMANKINGOF3ICILY2OGER))FORfollowing the way of Muslim rulers and breaking with the custom of the Franks by, among other things, establishing

a DWNALMALIMto which those who had been unjustly treated brought their GRIEVANCESANDWHERETHEKINGWOULDGIVETHEMJUSTICEEVENAGAINSTHISOWNson. He treated the Muslims with respect, took them as his companions, and kept THE&RANKSOTHEMmanaa ANHUMALFARANJSOTHATTHEYLOVEDHIM

The Normans debt to the Fatimids is well documented; more generally, ITWOULDHAVEBEENDICULT TOBEAMEDIEVAL-EDITERRANEANRULER IN THEFatimid age without at the very least taking seriously the Fatimid model of governance. Likewise, in late twelfth-century Castile, Rabbanite Jews success-

&IERRO!BDAL2AMN)))PP/NTHEEXERCISEOFMALIM justice in Cordoba, see Mller, Correcting Injustice: -ALIM Jurisdictions at the Umayyad Court of Cordoba; Mller, *UDGINGWITH'ODS,AWON%ARTHPP-LLERWRITESTHAT#OMPLICATEDCASESTHATCOULDnot be resolved according to the rules of QHEGWHENTHENUMBEROFHEIRSWASNOTKNOWNcould be brought to the judge of complaints (IBALMALIMFORRESOLUTIONBYPOLITICALJURIS-DICTIONPPANDTHAT4HEJUDGEOFCOMPLAINTSIBALMALIMDEALTWITHSOMECASESformerly heard by a QALAMA and also had the power to annul a Q judgment. But he then adds, But his jurisdiction [that of theIBALMALIM] was not superior to that of the Q. In one case, claimants recovered usurped land in a MALIMCOURTSUBSEQUENTLYTHEYTRIEDTOCONRMTHEIRRIGHTSTHROUGHAQ decision on the same legal grounds. Such a claim makes sense only if a Q judgment had in fact greater authority than that of a judge of complaints PP9ETSUCHACLAIMWOULDALSOMAKESENSEIFTHEQ was the one responsible for enforcing the situation on the ground. In reality, whether one sees MALIM jurisdiction as higher than that of the Q or vice-versa is a function of the kinds of sources one reads: no Qrendering judgments in good faith would have admitted that the IBALMALIm held ultimate power, and likewise, legal sources see SHARA as trumping QNN, while for a historian it all boils down to loci of institutional power. AL1AL.UMN+ITBALMALIS p. 32.)BNAL!RAL+MILFLTAR, vol. 10, p. 133.*OHNS!RABIC!DMINISTRATION, ch. 10.



FULLYPETITIONED!LFONSO6)))FORADECREEOBLIGING1ARAITE*EWSTOBECOME2ABBANITE THUSATTEMPTINGTOSOLVE THEIRCOMMUNALCONICTSBYmeans of royal power. The long afterlife of the MALIMinstitution in both the Islamic and Christian worlds is one argument for examining it closely as ATECHNIQUENOTJUSTFORROYALLEGITIMATIONBUTFORGOVERNANCEOFARANGEOFsubject groups.)NSUMTHEEASTERNMATERIALWHICHISUNIQUEINALLOWINGUSTOCHECKWORKS

of policy and narrative against documentary evidence, provides arguments AGAINSTDENINGTHESTATUSOF IMMS, let alone the tenor of Muslim-IMMrela-tions, on the basis of a single set of legal institutions. The MALIMdocuments demonstrate that the Muslims and IMMS who made use of the procedure were neither the victims nor the passive objects of state policies or enforcement ef-forts; they negotiated their status with a more or less intimate understanding of how Islamic institutions worked. As Hegel, Marx, and Eugene Genovese (a historian of North American plantation slaveryHAVEALLARGUEDEVENINSUCHGROSSLYUNEQUALRELATIONSHIPSASTHOSEBETWEENMASTERANDSLAVEPOWERCANBEnegotiated. All the more so in relationships that are fundamentally political such as the ones I have discussed in this paper.

6RXUFHV)BNAL!RAL+MILFLTAR4ORNBERG#*EDVOLS,EIDEN"RILL)BNALAYRAF4AL2ISA!MNALDN!BL1SIM!LB-UNIBAL1NNFDWNALRASILWALIRAILMANNLAALWIZRA"AHJT!LED#AIROAL1AL.UMN+ITBALMALISWALMUSYARTAL&AQ ABBABB)BRHMANDAL9ALW-UAMMAD ED 4UNIS AL-ABAA ALRASMIYYA LILUMHRIYYA ALTNISIYYA

Bibliography

Atiya, A. S. ETALEDANDTRANS(ISTORYOFTHE0ATRIARCHSOFTHE%GYPTIAN#HURCH Cairo, 3OCIETYOF#OPTIC!RCHAEOLOGY

Baron, Wittmayer Salo, 4HE*EWISH#OMMUNITY)TS(ISTORYAND3TRUCTURETOTHE!MERICAN2EVOLUTION0HILADELPHIA4HE*EWISH0UBLICATION3OCIETYOF!MERICA

Baron, Wittmayer Salo, !3OCIALAND2ELIGIOUS(ISTORYOFTHE*EWS, 2nd ed., New York, #OLUMBIA5NIVERSITY0RESS

!TLEASTONTHETESTIMONYOF!LFONSODE6ALLADOLIDFORDETAILSSEE2USTOW4HE1ARAITESASSect, pp. 155-56, and on Jews use of state power in Christian Iberia more generally, pp. 'ENOVESE2OLL*ORDAN2OLL4HE7ORLDTHE3LAVES-ADE.


330 MARINA RUSTOW

Baron, Wittmayer Salo, Plenitude of Apostolic Powers and Medieval Jewish Serfdom, IN&ELDMAN,ED!NCIENTAND-EDIEVAL*EWISH(ISTORY%SSAYSBYSalO7ITTMAYER"ARON, .EW"RUNSWICK.EW*ERSEYPP

Cohen, Mark R., *EWISH3ELF'OVERNMENTIN-EDIEVAL%GYPT4HE/RIGINSOFTHE/CEOF(EADOFTHE*EWSCA0RINCETON0RINCETON5NIVERSITY0RESS

Cohen, Mark R., 0OVERTYAND#HARITYINTHE*EWISH#OMMUNITYOF-EDIEVAL%GYPT, Princeton, Princeton University Press, 2005.

Cohen, Mark R., 4HE6OICEOFTHE0OORINTHE-IDDLE!GES!N!NTHOLOGYOF$OCUMENTSFROMTHE#AIRO'ENIZA, Princeton, Princeton University Press, 2005.$ARLING,INDA42EVENUE2AISINGAND,EGITIMACY4AX#OLLECTIONAND&INANCE!DMINISTRATIONINTHE/TTOMAN%MPIRE, ,EIDEN"RILL

Klein, Elka, *EWS#HRISTIAN3OCIETYAND2OYAL0OWER IN-EDIEVAL"ARCELONA, Ann Arbor, University of Michigan Press, 2006.

Fierro, Maribel, !BDAL2AHMAN)))4HE&IRST#ORDOBAN#ALIPH, Oxford, Oneworld, 2005.Fuess, Albrecht, ULMby -ALIMThe Political Implications of the Use of -ALIM

Jurisdiction by the Mamluk Sultans, -AMLK3TUDIES2EVIEW, PP'ENOVESE%UGENE$2OLL*ORDAN2OLL4HE7ORLDTHE3LAVES-ADE, New York, Random (OUSE

Gil, Moshe,0ALESTINE$URINGTHE&IRST-USLIM0ERIOD, 3 vols., Tel Aviv, Tel Aviv 5NIVERSITY'OITEIN3HELOMO$OV.EW3OURCESONTHE0ALESTINIAN'AONATEIN,IEBERMAN3AULAND(YMAN!RTHUREDS3ALO7ITTMAYER"ARON*UBILEE6OLUMEONTHE/CCASIONOFHIS%IGHTIETH"IRTHDAY*ERUSALEM!MERICAN!CADEMYFOR*EWISH2ESEARCH'OITEIN3HELOMO$OV#ONGREGATIONVERSUS#OMMUNITY!N5NKNOWN#HAPTERINTHE

Communal History of Jewish Palestine, *EWISH 1UARTERLY 2EVIEW PP'OITEIN3HELOMO$OV0ETITIONSTOTHE&ATIMID#ALIPHSFROMTHE#AIRO'ENIZA*EWISH1UARTERLY2EVIEWPP'OITEIN3HELOMO$OV0ALESTINIAN*EWRYIN%ARLY)SLAMICAND#RUSADER4IMESIN,IGHTOF'ENIZA$OCUMENTS(ACKER*OSEPHED *ERUSALEM"EN:VI)NSTITUTE'OTTHEIL2ICHARD*(!$ECREEIN&AVOUROFTHE+ARAITESOF#AIRO$ATED;SIC=INVON'NZBURG"ARON$AND-ARKON)SRAELEDS &ESTSCHRIFTZU%HRENDES$R!(ARKAVY3T0ETERSBURG

Hodgson, Marshall G. S., 4HE6ENTUREOF)SLAM#ONSCIENCEAND(ISTORYINA7ORLD#IVILIZATION, VOLS#HICAGO5NIVERSITYOF#HICAGO0RESS+HAN'EOREY!RABIC,EGALAND!DMINISTRATIVE$OCUMENTSFROMTHE#AMBRIDGE'ENIZAH#OLLECTIONS#AMBRIDGE#AMBRIDGE5NIVERSITY0RESS+HAN'EOREY!#OPYOFA$ECREEFROMTHE!RCHIVESOFTHE&ATIMID#HANCERY"ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIESPP+HAN'EOREY!0ETITIONTOTHE&ATIMID#ALIPHALMIR*OURNALOFTHE2OYAL!SIATIC3OCIETY, PP+HAN'EOREY4HE(ISTORICAL$EVELOPMENTOFTHE3TRUCTUREOFTHE-EDIEVAL!RABIC

Petition, "ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIES, PPJohns, Jeremy !RABIC !DMINISTRATION IN.ORMAN 3ICILY 4HE 2OYAL $IWAN, Cambridge,

Cambridge University Press, 2002.



%L,EITHY4AMER#OPTIC#ULTUREAND#ONVERSIONIN-EDIEVAL#AIRO!$0H$DISS0RINCETON5NIVERSITY

Lewis, Bernard, Siyasa, IN'REEN!(ED)N1UESTOFAN)SLAMIC(UMANISM!RABICAND)SLAMIC3TUDIESIN-EMORYOF-OHAMEDAL.OWAIHI, Cairo, American University in #AIRO0RESS-ASUD-UHAMMAD+HALID4HE$OCTRINEOF3IYSA in Islamic Law, 2ECHTVANDE)SLAM, PP

Mller, Christian, Correcting Injustice: -ALIM Jurisdictions at the Umayyad Court OF#ORDOBAth11th#ENTURIESIN&UESS!LBRECHTAND(ARTUNG*AN0ETEREDS#OURT#ULTURESINTHE-USLIM7ORLD3EVENTHTO.INETEENTH#ENTURIES, London, Routledge, 2010.

Mller, Christian, Judging with Gods Law on Earth: Judicial Powers of the1AL*AMA of Cordoba in the Fifth/Eleventh Century, )SLAMIC,AWAND3OCIETYPP

Nielsen, Jrgen 3ECULAR *USTICE IN AN )SLAMIC 3TATE-ALIMUNDER THE"AR-AMLKS)STANBUL.EDERLANDS(ISTORISCH!RCHAEOLOGISCH)NSTITUUT2ABBAT.ASSER/4HE)DEOLOGICAL3IGNICANCEOFTHE$RAL!DLINTHE-EDIEVAL)SLAMIC

Orient, )NTERNATIONAL*OURNALOF-IDDLE%AST3TUDIESPPRay, Jonathan, 4HE3EPHARDIC&RONTIER4HE2ECONQUISTAANDTHE*EWISH#OMMUNITYIN-EDIEVAL)BERIA, Ithaca and London, Cornell University Press, 2006. 2ICHARDS$3!&ATIMID0ETITIONAND3MALL$ECREEFROM3INAI)SRAEL/RIENTAL3TUDIES, PP2ICHARDS$3!-AMLK0ETITIONANDA2EPORTFROMTHE$WN!L*AYSH, "ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIES, PP2ICHARDS$3!Petition for a )Q!DDRESSEDTO3ALADINORALDIL"ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIESPP

Rustow, Marina, (ERESYANDTHE0OLITICSOF#OMMUNITY4HE*EWSOFTHE&ATIMID#ALIPHATENew York, )THACA#ORNELL5NIVERSITY0RESS

Rustow, Marina, At the Limits of Communal Autonomy: Jewish Bids for Intervention from the Mamluk State, -AMLK3TUDIES2EVIEW, PP2USTOW-ARINA!0ETITIONTOA7OMANATTHE&ATIMID#OURT!(#%"ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIES, PP

Rustow, Marina, The Qaraites as Sect: The Tyranny of a Construct, in Stern, Sacha ED3ECTSAND3ECTARIANISMIN*EWISH(ISTORY, Leiden, Brill, 2011.

Rustow, Marina, La notion dalliance royale et Yerushalmi pour matre, in Goldberg, 3YLVIE !NNE ED ,(ISTOIRE ET LAMMOIRE DE LHISTOIRE %N HOMMAGE 9OSEF (AYIM9ERUSHALMI, Paris, Albin Michel, 2012.

Rustow, Marina, Justice as Performance: The Petition and Response Procedure in the &ATIMID 2EALM 0OMERANTZ-AURICE AND "IRGE 6ITZ %VELYN EDS #OURTS AND0ERFORMANCEINTHE0REMODERN-IDDLE%AST, forthcoming.3TERN3-!N/RIGINAL$OCUMENTFROMTHE&ATIMID#HANCERY#ONCERNING)TALIAN

Merchants, in 3TUDI/RIENTALISTICIINONOREDI'IORGIO,EVIDELLA6IDA, Rome, Istituto per L/RIENTE

Simonsohn, Uriel I., Communal Boundaries Reconsidered: Jews and Christians Appealing to Muslim Authorities in the Medieval Near East, *EWISH3TUDIES1UARTERLY, PP


332 MARINA RUSTOW

Simonsohn, Uriel I., !#OMMON*USTICE4HE,EGAL!LLEGIANCESOF#HRISTIANSAND*EWSUNDER%ARLY)SLAM, Philadelphia, University of Pennsylvania Press, 2011.3TERN3AMUEL-!&IMID$ECREEOFTHE9EAR"ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIESPP3TERN 3AMUEL- 4HREE 0ETITIONS OF THE &IMID 0ERIOD/RIENS PP

Stern, Samuel M., Petitions from the Ayyubid Period, "ULLETINOFTHE3CHOOLOF/RIENTALAND!FRICAN3TUDIESPP

Stern, Samuel M., &IMID$ECREES/RIGINAL$OCUMENTSFROMTHE&ATIMID#HANCERY, London, &ABERAND&ABER3TERN 3AMUEL- 4WO!YYUBID $ECREES FROM 3INAI IN 3TERN 3AMUEL- ED$OCUMENTSFROM)SLAMIC#HANCERIES/XFORD"RUNO#ASSIRER3TERN3AMUEL-0ETITIONSFROMTHE-AMLK0ERIOD.OTESONTHE-AMLUK$OCUMENTSFROM 3INAI "ULLETIN OF THE 3CHOOL OF /RIENTAL AND !FRICAN 3TUDIES PP3TERN3AMUEL-!0ETITIONTOTHE&IMID#ALIPHAL-USTANIR#ONCERNINGA#ONICT

within the Jewish Community, 2EVUEDESTUDESJUIVESPPTillier, Mathieu 1s and the Political Use of the -ALIM Jurisdiction under the !BBSIDSIN,ANGE#HRISTIANAND&IERRO-ARIBELEDS0UBLIC6IOLENCEIN)SLAMIC3OCIETIES0OWER$ISCIPLINEANDTHE#ONSTRUCTIONOFTHE0UBLIC3PHERETHTH#ENTURIESC.E., %DINBURGH%DINBURGH5NIVERSITY0RESS

Tyan, mile, (ISTOIREDELORGANISATIONJUDICIAIREENPAYSD)SLAM, 2nd ED,EIDEN"RILL6AN"ERKEL-AAIKE !BBSID-ALIMBETWEEN4HEORY AND0RACTICE IN4ILLIER-ATHIEUED,ESJUSTICESDANSL)SLAMMDIVALETMODERNEPLURALISMEJUDICIAIREETINTERACTIONSINSTITUTIONNELLESINPROCESS9ARBROUGH,UKE)SLAMIZINGTHE)SLAMIC3TATE0H$DISS0RINCETON5NIVERSITYYerushalmi, Yosef Hayim4HE,ISBON-ASSACREOFANDTHE2OYAL)MAGEINTHE3HEBET9EHUDAH#INCINNATI(EBREW5NION#OLLEGE*EWISH)NSTITUTEOF2ELIGION

Yerushalmi, Yosef Hayim, Serviteurs des Rois et non serviteurs des serviteurs : Sur QUELQUESASPECTSDELHISTOIREPOLITIQUEDES*UIFS2AISONSPOLITIQUESPP

rustow (m.)_the legal status of Ḏimmī-s in the fatimid east. a view from the palace in cairo

Documents

legal status of imms

legal framework

early legal texts

medieval muslim west

mlik legal tradition

muslim law

imms jews

history of imm