Thoughts on Near Eastern Legal Culture- Guest Post by Lena Salaymeh

This post is the first in what will be an ongoing series introducing our readers to the work of young scholars engaged in new and interesting research. 

I usually describe my research interests as being comparative Jewish and Islamic law (or legal history), but that depiction is often misleading.  The term “comparative” assumes two distinct legal traditions that interact in discernible ways.  But in the context of Jewish and Islamic legal history, my conception and implementation of “comparative” is more akin to thinking and to speaking in “proto-Semitic.”  As a metaphor, “proto-Semitic” offers a useful heuristic for thinking through how we approach the study of Jewish and Islamic law.  If you imagine scholars of Jewish law articulating their ideas in Hebrew and Aramaic, while scholars of Islamic law articulate their ideas in Arabic, then my objective is to converse with both groups of scholars in a meta-language (proto-Semitic) that engages both legal traditions.  Just as “proto-Semitic” is the common ancestor of the Semitic language family, Near Eastern legal culture is the shared antecedent of Jewish and Islamic legal systems. Undeniably, the challenge is that proto-Semitic no longer exists as a spoken language and is instead a scholarly reconstruction of a language that may have existed.  Similarly, I am interested in recreating the discourse of Near Eastern legal culture in the late antique and medieval periods using terminology and ideas from law, history, and critical theory.  While diglossia (in this case, speaking both in a Semitic dialect and in proto-Semitic) is inevitable, my objective is to transcend disciplinary boundaries.

My “proto-Semitic” perspective on the subject of my research differs considerably from the viewpoint of colleagues who assume that my research interest is “religious law.”  However, there are several interrelated problems in “religious law” as a category.  In contemporary discourse, the modern bifurcation between “secular” and “religious” law is taken for granted, but it lacks historical resonance.  There is a common presumption that the “essence” of religions is their laws, but this oversimplifies the multi-dimensional nature of religious groups and movements.  Instead of “religion,” I prefer more precise terminology in scholarship and in public discourse: theology, spirituality, ritual, belief, ideology, orthodoxy, orthopraxy, customary practice, local culture, and identity.  In focusing on the syncretic and dialectical relationships within Jewish and Islamic legal history, I am also mindful of Roman provincial, Sasanian, and Near Eastern tribal legal traditions.  In so doing, I seek to contextualize (and to broaden) the study of Islamic and Jewish legal history within a shared “proto-Semitic” legal culture.  I often invoke historical evidence from other (i.e, other than Islamic or Jewish) Near Eastern legal traditions precisely in order to substantiate the existence of Near Eastern legal culture.  Legal culture, based in a specific social space and time, is a more effective category of analysis for my work than “religious law.”

Relatedly, the word “religion” does not have a Semitic (and possibly proto-Semitic) equivalent.  “Religion” is a perplexingly problematic term for my research because it is both anachronistic and untranslatable.  In Arabic, the term “din” is translated as “religion,” but the root means “to profess.”  Likewise, in Hebrew, the term “dat” is translated as “religion,” but it means “law.”  The historical usage of both terms does not correspond to modern understandings of religion. This is not mere philological pickiness: if we insist on translating what we observe in Jewish and Islamic historical texts into a discourse about religion (with its modern, Western genealogy), we will stifle more imaginative and unexpected possibilities and interpretations of these texts and their socio-historical contexts.  Historical expressions of Judaism and Islam do not easily correspond to contemporary conventions about religion and it is precisely this complexity that is the basis of my research pursuits.

My commitment to “proto-Semitic” research includes exploring the Islamic legal-intellectual milieu of rabbinic jurists who wrote in Arabic (such as Alfasi and the Rambam) and studying Gaonic legal manuals.  I am working on an article that explores medieval Islamic juristic texts that discuss the possibility of using Jewish law as a source of legal authority.  I plan to contrast these Islamic legal discussions of the ‘other’ with references to Islamic law in Gaonic texts.  In another article, I expect to situate Karaite attacks on rabbinic oral law within debates about the authoritative significance of the legal opinions of late antique Muslim jurists.  As part of my broader endeavor to collaborate with colleagues, Zvi Septimus (Stroock Fellow, Harvard Center for Jewish Studies) and I are formulating a project to explore the intersections between some medieval commentaries of the Bavli and contemporaneous Islamic legal literature.

Recreating “proto-Semitic” is a wide-ranging endeavor that needs institutional groundwork; this is why I complement my research with administrative projects as a coordinator for the Initiative on Muslim-Jewish relations at UC Berkeley’s Center for Middle Eastern Studies.  I am interested in creating a network of scholars and of supporting unrecognized scholarly endeavors.  For example, we are currently trying to find funding to publish an Arabic translation of the Rambam’s Mishneh Torah in order to make this seminal Jewish legal text accessible to scholars of Islamic law who do not read Hebrew.  We are also raising funds to acquire an important collection of Judeo-Arabic midrashic literature from 19th/20th century Morocco, which would supplement UC Berkeley’s previous acquisitions of similar materials from Iraq and Tunisia.  There is much work to be done in the field of Judeo-Islamic legal studies and I have many more ideas and plans for how we can more deeply explore the interconnectedness of Jewish and Islamic legal systems.  I hope we will have opportunities to implement them and to continue rediscovering “proto-Semitic,” as a means of deepening our understandings of Jewish and Islamic legal history.  I invite readers to join me in reconstructing “proto-Semitic.”

Lena Salaymeh is a PhD candidate at UC Berkeley. Her dissertation is titled Late Antique and Medieval Islamic Legal Histories: Contextual Changes and Comparative (re)Considerations.

[Cross-posted at the Immanent Frame]

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7 responses to “Thoughts on Near Eastern Legal Culture- Guest Post by Lena Salaymeh

  1. You’re welcome! The main reference would be her 2000 monograph with Brill, Models and Contacts: Medieval Arabic Literature and Its Impact on Jewish Literature. Sadly, Drory passed away at the age of 53 and could not develop further her revolutionary ideas and methods…

  2. I would also be interested on the way the Judaeo-Islamic discourse of law as the centerpiece of divine service influences Christians in the same areas. Do they start turning to their “own” courts for resolving disputes? How do Christian judges adjudicate such cases? How much of this religious worldview is incorporated into these Christian communities?
    Another interesting question to examine is that of “intentional legal vacuums”, in Talmudic and Geonic jurisprudence. Do Muslim judges also have areas where they throw their hands up in despair and say “we cannot adjudicate this, we have no power”? What about Christians or Zoroastrians?

  3. Sounds interesting, but I’m wondering about the need (i.e, the expense) of a Mishneh Torah in Arabic. There are many excellent translations of some or all volumes in English and probably other languages. Who exactly is the market? It seems hard to imagine that scholars who may not be comfortable in Hebrew cannot manage English.

    • The “market” is scholars of Islamic studies who do not read Hebrew or English. The objective is not profit; it’s dissemination of information that will further our understanding of the Rambam’s relationships to his intellectual milieu by encouraging scholars of that intellectual milieu to situate his work within contemporaneous Islamic legal discourse.

  4. Dear Lena

    A somewhat late reply.

    First off, thanks for the thoughts and explanation of your focus. Since I myself focus on the same subjects, I will find great interest in your work and studies on this field.

    All the best

    Shmuel

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