January 19th, 2011
by Jessica Marglin Review of Jewish and Islamic Law: A Comparative Study of Custom during the Geonic Period by Gideon Libson (Cambridge: Harvard University Press, 2003) 380 pages Gideon Libson’s groundbreaking study examines how Islamic law helped shape Jewish law during the early medieval period. Libson’s approach represents a new direction in comparative studies of Jewish and Islamic law. Since the nineteenth century, Orientalists investigated Judaism’s influence on Islam, particularly in the legal arena. But only recently have scholars begun to look at how Islam might also have helped to shape halakhah. Libson suggests a more symbiotic model based on feedback circles, where Jewish law influenced Islamic law, which in turn influenced Jewish law. Libson uses custom in Jewish law as a lens through which to study the intersections between the two legal systems. He begins with an overview of how custom worked in both halakhah and shari‘a, framing his argument with a discussion of Jewish and Muslim contacts during the Geonic period. Jewish legal authorities were familiar with Islamic law and custom; Libson suggests that this knowledge came both from reading texts and from absorbing information from the surrounding society. He notes that despite Jews’ right to judicial autonomy, Islamic law “considered the rabbinical courts to be part of the overall Muslim legal system….” (45). The constant availability of Islamic courts pushed the geonim to initiate customs that responded to reality of the Islamic legal system. Libson calls this kind of custom “responsive,” distinguishing it from customs that the geonim borrowed directly from Islamic law. Libson analyzes particular aspects of custom in Jewish law as examples of how halakhah developed in relationship to the Islamic context. He notes various instances of responsive adaption, in which Jewish jurists introduced customs in order to make Jewish law more compatible with the Islamic legal system in which it functioned. For instance, Libson traces the development of the category of “rebellious wife” in Jewish law to the geonim’s attempt to preclude recourse to Islamic courts, which offered divorce initiated by women. As an example of how Jewish jurists borrowed Islamic legal practices through custom, Libson discusses the origins of the oath of destitution. Under early Jewish law, oaths were only used at the end of a trial, while under Islamic law, litigants took oaths to verify their claims throughout the legal proceedings. The geonim introduced an oath which served to verify testimony by invoking the public ban (gezerta). Unlike Muslims, Jews did not swear on God’s name. Nonetheless, the public ban served all the same functions of the oath in Islamic law. Jewish and Islamic Law is a pioneering work in a field with numerous opportunities for further study. Scholars have only begun to understand the ways in which Jewish and Islamic legal systems co-existed, both at the theoretical judicial level and in daily legal practice. Libson has done the fields of Jewish and Islamic studies a great service. His book both provides a convincing and innovative analysis of the development of custom in Jewish law in an Islamic context and demonstrates the rich potential of comparative studies in Jewish and Islamic law. Jessica Marglin is a PhD candidate in the Department of Near Eastern Studies at Princeton University. She is writing her dissertation on Jews in the Moroccan legal system during the nineteenth century.