Adab al-Qāḍi: Shared Juridical Virtues of Judaic and Islamic Leadership

Abstract

This paper argues for proximity between the two branches of a jurisprudential–adjudicative genre: manuals for judges or the etiquette for the judgeship. I wish to demonstrate that the proximity, lexicography, ways and tools of argument, etc., are founded upon a meta-legal stratum that contains kalam theology. In this paper, I will elaborate on the genre and its discovery, define some basic principles for the field of discussion, and provide textual examples of the proximities between the two branches of the genre based on pre-legal or meta-halachic demands. I suggest a preliminary result here and lay the groundwork for further research in the future: The criteria for the appointment of the true judge sketch out his idealized personality. He is more than an administrator of the judicial bureaucracy: he is a guide for the legally perplexed peoplehood, both in Judaism and Islam.

1. Exposé—Introduction to the Books on Judges’ Duties in Geonic Literature

The Geonim were prominent Jewish leaders in the Babylonian diaspora from the seventh to the eleventh centuries CE. A sharp shift in the epistemology of the Halakha distinguishes the late Geonim of Babylonia (tenth–eleventh centuries) from their predecessors. The successors of Se’adyah Gaon1 (882–942) specialized in the composition of individual legal halakhic codices. Known as late monographic works, they stand in contrast to the collective oral traditions of which the earlier geonic corpus was composed. Therefore, the subgenre relating to the duties of judges stands at the legal and jurisprudential climax of this highly conceptualized, instructive monographic genre, of which all other works in the juridical field should be seen as derivative legal aspects.

As widely accepted spiritual leaders in Babylonian academies and, therefore, for early medieval Jewry at large, the Geonim wielded secular authority over the Jews in Islamic lands. Se’adya and his successors, Rav Hai ben Sherira Gaon and Rav Samuel ibn Ḥofni, specialized in writing professional monographs on a variety of topics, mostly in civil law—the genre of concern in my research.2 This genre of manuals on judges’ duties has not yet been the subject of focused scholarship, mainly due to the lack of research tools available to the scholarly community. With this study, I wish to fill this research lacuna by identifying and contextualizing individual Geniza fragments relevant to this literacy genre.

2. Geniza Fragments and the Literature on Judges’ Duties

The term geniza is a common Hebrew gerund that denotes the phenomenon of burying torn writings and the noun that signifies the place of burial. As far as I know, there is no adequate English translation for this kind of “storage” of sacred scripts that were damaged due to repeated use. The plural term in this context, genizot, refers to additional storage sites that coexisted with the one in Cairo.3 The books in this genre show a close affinity with the world of Muslim jurisprudence, rely meta-halakhically on Kalam theology,4 and, as will be seen, are well integrated into the general Arabic genre Adab al-Qāḍī.5

3. The Genre of Adab al-Qāḍī

The Arabic term Adab (أَدَب plural آدَاب) means “literature” or “culture”. The sub-genre Adab al-Qaḍi (“The Etiquette of Judgeship”) is a juridical genre comprising manuals designed to provide professional and personal guidance for judges. The earliest known works belonging to this genre date back to the eighth century. Most likely, these were written by professional judges grounded in their theoretical and practical knowledge. These manuals address various facets of the judge’s position, such as qualifications, jurisdictional methods, sources to be consulted, court procedures and practices, and the final outcome of court proceedings in the form of adjudication. Works of Adab al-Qāḍī, however, do not just shed light on the nature of the legal system during this period. With their extensive discussions of the reliability of witnesses, the moral and legal severity of oaths, and a judge’s social obligations (such as concern for the disadvantaged, e.g., widows or orphans), these works also reveal their socio-political contexts in addition to the values and principles of those involved.

4. Kalam Theology in Legal Literature

As is quite common in legal books of that period, their authors tend to introduce these books theologically, and this is introduced in classical Kalamic style. As Haggai ben Shammai, Sarah Stroumsa, and many others put forth, the Kalam was the main rationalistic philosophical movement, focusing mainly in the human ways to know God.

Kalam is a generic name for Islamic dialectical theology. Common to all kalam schools is the formulation of a system based on the dual basis of rationality and scripture, and on the assumption that the two complement, rather than contradict, each other. Also typical of all kalam schools is the specific discourse that uses dialectical techniques for the analysis of religious and philosophic problems (Stroumsa 2003). By investigating the genre of manuals on judges’ duties, this study aims to illuminate a previously under-researched area of Geonic literature. Understanding these works within their broader context of Muslim jurisprudence and Kalam theology not only sheds light on the legal and intellectual history of the Geonim, but also contributes to our knowledge of medieval Jewish life and law. In the following section, I will elaborate on the Judaeo-Arabic branch of this genre, exploring its unique characteristics and contributions. The exploration of geonic legal monographs begins with an examination of key texts, notably those by Rav Hai ben Sherira Gaon and Rav Samuel ibn Ḥofni. Their works, such as the Kitāb lawāzim al-ḥukkām, are seminal in understanding the legal and ethical frameworks they established for judges. This discussion provides a foundation for analyzing the newly identified Geniza fragments and situating them within this rich literary and jurisprudential tradition.

5. Discoveries of the Books Belonging to the Jewish Branch of the Genre Etiquette for Judgeship

• Kitāb lawāzim al-ḥukkām (“Book of the judges’ duties”), Rav Samuel ibn Ḥofni Geon Sura (d. 1013)

Not only did this book nearly vanish into oblivion, leaving few hints of its existence, but even its title is ambiguous.6 Some transcriptions of the title are rendered al-aḥkām (laws), not al-ḥukkām (judges), and Geniza and Rishonim literature offer different transcriptions as well.7 Plausibly, the book was written for judges or about judges, jurisdiction, or judges sitting in judgment. It deals with judges’ theological, ethical, and jurisprudential duties and lays down a fundamental theological basis for civil procedures.

Unfortunately, even the introduction in the Geniza is incomplete (Assaf 1944, 1945). Several fragments from the body of the book have been identified on the basis of matches with the title that appears in the fragment (T-S Ar. 48.61) of the table of contents in this introduction. The introduction suggests that this jurisprudential work has a theological background because most geonic monographs have a theological introduction, following the custom of Muslim contemporaries, who preceded meta-legal materials with introductory sections (muqaddimah). The theological evidence serves to justify the law, the legal authority granted to judges, and ethical–juridical principles that emerged later.8 The author offers a lengthy divine justification for the earthly legal authority of the judges (dayyanim) and the halakhic court (beit din), which is based on the belief in the one God (tawḥīd) who, invoking his unlimited power and authority, gives judges the authority to dispense justice even though they are limited and fallible human beings.

As is customary in this type of literature, the introduction mentions no sources and quotes only anonymous sources (biblical verses and passages of Mishna and Talmud: wa-qālu = “and they said”). Many books in this genre were written and preserved in Islam, in contrast to the tangled history of the Judeo-Arabic genre, which disappeared not long afterward due to the destruction of the yeshivot of Babylonia and internal transformations of the Jewish center. Comparing the main themes and topics of interest that appear in Samuel ben Ḥofni’s introduction with introductions to other books by his Muslim contemporaries, one sees quite clearly that the surrounding culture transmitted and mediated the Adab genre and its legal language among both Muslim and Jewish savants, demonstrating the reciprocal sharing of a philosophical world that preceded common legal thought.9

2.

Kitāb Adab al-qaḍāʾ (“Book of good manner for legal procedure”), Rav Hai Gaon Pumbedita (939–1038)

The scientific destiny of the Book of good manner for legal procedure is somewhat different from that of the first work discussed. This book was also completely lost; from some point in the Middle Ages later than the tenth century—rather shortly after its probable appearance—to modern scholarship, we can find no clear evidence of its existence. There is also ambiguity surrounding its actual title. The word Adab may be translated in many ways because it has a broad field of meanings in history, culture, and literature. The term Adab al-Qāḍī, however, serves a narrower purpose in a subgenre. Here, again, it is not completely clear whether the subject of the text is the judge, his halakhic duties, or his jurisdiction in formal institutions. The qadi’s requirement of obedience pertains to both earthly and religious/theological authorities, so in the context of the Adab al-Qāḍī, his personal characteristics must reflect this dual subordination (Ariel 2023b).

Only remnants of a medieval translated version of this work have survived indirectly. Simcha Assaf published two fragments of this remnant, which are stored at the British Library and were translated into Hebrew by Rabbi Judah ben Barzillai Al-Barceloni (author of Sefer ha-‘ittim). Without clear evidence of Rav Hai’s original work, lacking other evidence, and deficient in both classical and Judaeo-Arabic contexts, Assaf made a plausible assumption without further support. It goes without saying that the databases available in Assaf’s time were quite primitive and that his achievements, preceding the emergence of the digitized humanities, are noteworthy. My thesis reinforces the identification of many fragments on the basis of careful deliberation and reconsideration of scholarly achievements.10 Drawing on thorough work that utilizes digital technology, I confidently venture that about sixty related fragments in Judeo-Arabic are verified as portions of this incomplete reconstruction and that an approximate skeleton of this lost work by Hai Gaon is coming into being. Today’s discoveries are possible because of the online availability of the Cairo Geniza, additional genizot, digitized manuscript collections, search tools,11 modern dictionaries,12 grammars (Blau 1980), and the flourishing scholarship by researchers at the Izhak Ben-Zvi Institute and the Society for Judeo-Arabic Studies (SJAS).

3.

Faṣl fī ādāb al-dayyanin (“Chapter on the judges’ good manners”), Rav Yosef, son of Yehuda Ibn Aknin al-Barceloni

Here is a third text that has almost escaped scholarly attention. On the advice of Professor Paul Fenton of the Université Sorbonne, I found this relevant chapter in a codex from the Bodleian Library collection titled “Hygiene of the Souls” (Ṭibb al-Nufūs). The chapter title is inscribed at the top of a leaf from the Geniza (JTS ENA 2715.35r), but the provenance of the chapter is unknown. The texts in the codex and the Geniza fragments are identical.13

This treatise, of course, is not Geonic per se, but I include it in my research because it preserves developments in Geonic traditions as well as additional unknown and possibly authentic sources. (It also contains known writings, such as the Halakhot of Isaac al-Fasi.) It has survived intact in a Spanish codex preserved by the Bodleian Library in Oxford (Ox. Hunt. 518).

The chapter in question is not a freely standing work; it is firmly set within the broader framework of Ibn Aknin’s Ṭibb al-Nufūs, a jurisprudential section of The Worldly Soul. Ibn Aknin’s methodology for his work on his book remains unknown because various materials within it are edited in different ways. Thus, the discussion in this chapter proceeds very differently from that in the didactical and philosophical chapters.14 These circumstances evoke serious questions about the compilation of the work and the editing of such characteristically different materials together.

I have identified five unknown Geniza fragments, all of which are parts of this jurisprudential treatise. This work probably has no direct connection to Kalam theology or the other works discussed, but it has confused scholars who have mistakenly identified these fragments as integral parts of one of these geonic works15 or as an ancient work containing an unknown midrash (Abramsohn 1972). Therefore, the vestiges of this work in the Geniza enrich our textual knowledge of the work at large, of which no version exists save the unicum at Oxford. These Geniza occurrences prevent some confusion about the geonic jurisprudential works and help to distinguish between original materials in the geonic genre and later developments of the genre in works that also reflect the genre as a whole.

In sum, this research explores a previously unknown and unstudied genre extracted from Geniza documents: geonic legal monographs, which are comprehensive professional manuals for judges on jurisprudential themes (e.g., legal principles, court procedures, the judge’s character, and injunctions against bribery). No study has yet focused on this genre, mainly because today’s scientific research tools were not previously available to the scholarly community. The next stage of the research will be built on these achievements and will aim to contribute to the field of comparative, interdisciplinary, and interreligious jurisprudence. Still in its early stages, interdisciplinary research that compares Jewish and Muslim legal systems has been pursued by very few scholars. In the field of substantive law (or: formal law; the part of the law that deals with the rights and duties of people, organizations, etc., rather than the part that deals with legal processes), previous works have dealt with topics such as partnership, guardianship, and divorce as well as the role of custom as a source of law in both the Muslim and Jewish systems. My research proposes to contribute an analysis of legal–jurisprudential literature to the comparative work carried out thus far.16

The study of legal texts in medieval Judaeo-Islamicate culture unveils a nuanced landscape of judicial frameworks and ethical standards that governed societal justice. This article delves into the genre of Adab al-Qāḍī through a comprehensive analysis of three pivotal works: Kitāb adab al-qāḍā by Rav Hai Gaon, Kitāb lawāzim al-ḥukkām by Samuel ben Ḥofni Gaon, and Faṣl fī ādāb al-dayyanin by Ibn Aknin. By comparing these texts with contemporary Islamic legal manuals, this study elucidates the interreligious dialogues and cultural exchanges that influenced medieval jurisprudence.

6. Ethical Character and Adjudicative Process

A recurring theme in both Jewish and Islamic judicial manuals is the emphasis on the ethical character of judges. These texts stress the importance of moral integrity, impartiality, and the prohibition against bribery, reflecting a shared commitment to upholding justice. Kitāb adab al-qāḍā by Rav Hai Gaon extensively discusses the qualifications necessary for judges, including their ethical and educational requirements. It provides a comprehensive guide to the conduct expected of judges, emphasizing the importance of honesty, integrity, and fairness in judicial proceedings. Islamic legal manuals, such as Al-Mawardi’s Al-Ahkam al-Sultaniyya, offer similar guidance for qadis. Both Jewish and Islamic texts prioritize procedural fairness, the proper handling of evidence and witness testimony, and the responsibilities towards vulnerable societal members, such as widows and orphans.

7. Socio-Political Context and Judicial Integrity

The judicial texts from this period provide valuable insights into the socio-political dynamics that influenced legal practices. The interaction between Jewish and Islamic judicial principles not only reflects broader cultural exchanges, but also highlights a shared commitment to judicial integrity and the administration of justice. Kitāb adab al-qāḍā stands out for its comprehensive treatment of judicial duties. Rav Hai Gaon meticulously details the qualifications, court procedures, and ethical standards judges must uphold. This work serves as a cornerstone for understanding the judicial ethos of the time and illustrates the profound influence of Jewish legal thought on broader judicial practices. Kitāb lawāzim al-ḥukkām by Samuel ben Ḥofni Gaon (Appendix A) and Faṣl fī ādāb al-dayyanin by Ibn Aknin similarly provide extensive guidance on judicial conduct, reflecting the deep interconnections between Jewish and Islamic legal traditions. These works emphasize the importance of procedural fairness, the proper adjudication of cases, and the ethical responsibilities of judges.

8. Comparative Insights and Conclusions

A comparative analysis of these Jewish judicial texts with Islamic legal manuals reveals both common themes and unique differences. Both traditions emphasize ethical conduct, procedural fairness, and social responsibilities, underscoring a shared commitment to justice. However, they also reflect distinct legal principles and procedures rooted in their respective religious and cultural contexts. This exploration of judicial manuals in medieval Judaeo-Islamicate culture provides a richer understanding of the legal and ethical frameworks that shaped judicial practices. By examining the authors, historical contexts, and content of these works, we gain valuable insights into the interreligious dialogue and cultural exchanges that influenced their development. Future research can further elucidate these connections, offering a more comprehensive understanding of the shared legal heritage of Judaism and Islam.