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Legal Strategy and Legal Culture in Medieval Jewish Courts of Southern France

Published online by Cambridge University Press:  01 December 2014

Pinchas Roth
Pinchas Roth*
Affiliation:
Ben-Gurion University of the Negev, Beer Sheva, Israel
*
pinchas.roth@gmail.com

Abstract

From the mid-thirteenth century onwards, the rabbinic courts of southern France (Provence and Languedoc) found themselves dealing with an increasing number of cases in which plaintiffs were using the court as leverage in a struggle that was taking place outside the court. This period also saw the first legal advocates appearing in Jewish courts. These two related phenomena point to a shift in Jewish legal culture, part of a move throughout thirteenth-century Mediterranean Europe towards what Daniel Lord Smail has called “consumption of justice.”

Information

Type
Research Article
Information
AJS Review , Volume 38 , Issue 2 , November 2014 , pp. 375 - 393
Copyright
Copyright © Association for Jewish Studies 2014 

The historical study of Jewish law has, until recently, focused primarily on two aspects—the history of doctrines and of legal institutions. In recent years, however, historians have gained a growing appreciation for the ways in which Jewish law worked in practice, and its implications for the lived experience of different types of people. The most fertile ground for this line of inquiry has been the Cairo Genizah. Personal correspondence, letters to state authorities, or genealogical information drawn from trade documents, preserved in the Genizah can shed light on legal proceedings and on the strategies that informed a legal step taken by a litigant, about which the official court documents would have preserved only some of the bare facts.Footnote 1 But scholars studying Jewish courts in medieval Europe have usually been limited to what can be gleaned from halakhic responsa, making it frustratingly difficult to bridge the gap between law as seen by the legal experts who wrote the responsa, and law as seen and experienced by litigants.Footnote 2

The Jewish court system in medieval Provence and Languedoc is an example of this difficulty. While some Jewish courts in southern France were staffed by recognized rabbinic experts and were almost certainly standing courts that possessed the greatest degree of authority any Jewish institution at the time could muster, other locales in the area were most probably served by lay tribunals convened ad hoc.Footnote 3 Furthermore, the responsa from southern France do not shed light on the weight a rabbinic responsum carried in the courtroom—whether or not it could shift the decision of the court, or was simply taken under advisement.Footnote 4 Still, what these sources do help us to understand is how the Jewish community in southern France related to the Jewish legal system—whether they believed that system could be made to serve their interests—or their legal culture. As defined by Lawrence Friedman, legal culture is “the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away.”Footnote 5

Historians of medieval law have done important work in recent years on the creative ways in which laypeople endeavored to use legal systems to their advantage. James Sharpe has noted that law and legal institutions were important “not just to elite politics and the political nation, but also to the everyday life of large sections of the general population.”Footnote 6 In recent years scholars have thus emphasized that the very decision to seek legal remedy to a problem indicated that there were advantages to that path over others that a medieval person could have chosen.Footnote 7 A mediated compromise, a smear campaign, or even the judicious use of violence were all socially acceptable and often quite effective modes of response, and choosing legal action over (or alongside) any of these was always a conscious choice that can teach the historian much about social attitudes towards the law.

Jews in southern France (Provence and Languedoc) were no different during the thirteenth and fourteenth centuries, they too were learning how best to take advantage of the rabbinic court system and to turn it to their advantage. The way they used the Jewish courts, presented their claims in court, and the types of arguments they offered demonstrate that in some aspects of popular Jewish legal culture Jews were learning from their Christian neighbors, and from the growing ranks of lawyers within the Jewish community. This process of a changing legal culture, fueled at least in part by outside influences, was a source of great distress for some rabbinic judges, while others took it in stride.

The Judge Steps Aside

Each man does as his own eyes see fit and favors rich before poor. Their speech goes throughout the land saying: “Who is our lord, and who will summon us to judgment, and who can decide better than us?” In their own eyes they are wise, while the truth is hidden and one who veers from evil will stand to the side.Footnote 8

This was the dismal assessment of Mordekhai Kimḥi, a prominent rabbinic figure in late thirteenth-century Provence.Footnote 9 Hailing from the ancient city of Narbonne, he was a grandson of the famous Rabbi David Kimḥi, the biblical exegete known by his acronym Radak.Footnote 10 Though there do not seem to be any biblical commentaries written by the grandson, there is evidence that he taught Talmud in a yeshiva. His major contribution, however, was as a judge in rabbinic courts. Mordekhai Kimḥi's judicial activity began while he was still living in Narbonne, and also served on a court in the nearby city of Toulouse. Towards the end of the century he moved east, to Provence, where he joined the rabbinic court of Carpentras.

A fair number of Kimḥi's decisions were preserved by his grandson as part of a manuscript collection that was published in 1967 under the title Teshuvot ḥakhmei Provinẓiah—Responsa of the Sages of Provence (henceforth: THP). In one of these responsa (THP 63), Mordekhai Kimḥi described a case that came before him in his old age, and that compelled him to step aside and refrain from deciding the case. In his eyes, this case epitomized the deterioration of Jewish society and the erosion of the Jewish legal system.Footnote 11 In fact, Kimḥi claimed that he had withdrawn from judicial activity some time before, precisely because of these changes.Footnote 12 But what he described as deterioration and erosion can be seen as a shift in attitude of the Jewish community towards the Jewish legal system, or in other words, a change in legal culture.

The case that baffled Mordekhai Kimḥi was brought by “a young man who want[ed] to divorce his wife and had made an oath against her.” Footnote 13 The Jewish man had married a well-born woman but had grown tired of her, and now wanted a divorce. The man had no formal grounds for divorce, and, according to local Jewish communal rules, no-fault divorce was not permitted.Footnote 14 To get around this technicality, the man took an oath declaring any benefit or pleasure from his body or his possessions to be forbidden to his wife. A wife who cannot use any of her husband's possessions, and who is forbidden to have sex with him cannot be obligated to live under such conditions, and tannaitic law stipulated that a husband who makes such an oath is compelled to grant his wife a divorce.Footnote 15 This, in fact, was the outcome—to receive a court order to divorce his wife—the husband was hoping to achieve.

Fully aware that his court was being manipulated by the husband, Mordekhai Kimḥi refused to hear the case, answering the man “‘I will not avail you.’”Footnote 16 In retaliation, the husband had him brought before the bishop and then the town consul, where Kimḥi was forced to answer a series of questions.Footnote 17 The bishop prodded the rabbi to set forth the law regarding a man who refuses to maintain sexual relations with his wife:Footnote 18

First question—someone who took an oath not to give his wife the pleasure of sexual relations, saying, “The pleasure of your intercourse is forbidden to me.” And the relatives have made multiple efforts [to persuade him] to express regret for his oath, and to come before a sage to ask for it [i.e., for the oath to be absolved]. And he responds to them each time [saying] that he does not regret the oath and he will never ask for it [to be absolved]. And this man has not fulfilled the obligation of “Be fruitful and multiply.”Footnote 19 What is the law in his case?Footnote 20

The following questions posed to Kimḥi by the consul were more concise and specific, and some of them seem to catalogue the desperate measures taken by the wife and her relatives in order to preserve her marriage: What if witnesses live with the couple to ascertain that they do not have sex? What if she allows him to take a second wife? Are there Jewish communal enactments (takkanot) relevant to this case? What if the wife's relatives are keeping her away from him, conveying her from place to place?

While some of these questions may have reflected a genuine attempt by Christian legal authorities to understand the Jewish legal process, others were clearly leading questions that had been formulated by the husband. They evince a fair amount of legal knowledge but, at the same time, they betray significant gaps in that knowledge.Footnote 21 For example, as Kimḥi himself pointed out, the fact that the couple did not have any children together had no significance in this context. In another context it would—if a couple has lived together for ten consecutive years without having children, these could have been grounds for divorce. This couple, however, had not been married that long. It is also unclear what the husband thought was wrong with his in-laws keeping his wife away from him. He may have been implying that the relatives were harming his wife, or perhaps that they were undermining his authority as husband, but there are no rules against that in Jewish law, and most likely they were acting on behalf of the wife and perhaps at her behest.

In sum—a dissatisfied husband who wished to rid himself of his wife chose to do so through the rabbinic court, even though this was not his only possible course of action. In fact, he could have concocted some grounds for divorce, he could have found a Jewish judge willing to cater to his needs, he could have simply walked out on his wife, he could even have had her killed. Instead he went to considerable lengths to push his case through the local Jewish court, where he constructed a sophisticated legal argument justifying his position. Presumably, he chose this expensive and complicated course of action because, even though he himself had precious little respect for the halakhic system per se, he found it to be the most effective forum for achieving the social result he desired—to divorce his wife without any lingering problems.Footnote 22 After all, if his divorce had been sanctioned—even demanded—by the official Jewish court of Carpentras, would his wife's relatives dare to question that decision in their bid to keep him in the marriage?

A Dropped Case

As Kimḥi's exasperated tone made clear, this was not the first time he had been forced to deal with a husband manipulating the system in order to procure a divorce. Another case came before the Carpentras court, where Kimḥi presided alongside Rabbi Abraham ben Isaac of Montpellier (Min ha-Har):Footnote 23

A man came before the court of Rabbi Mordekhai and Rabbi Abraham and said “Know that my wife has committed adultery, and I know this and it is utterly clear to me, those who heard and saw this have no doubt about it. Therefore I come before you to tell me which way to turn. Based on this, is my wife forbidden to me or permitted?” When the court heard his words, they said, “Know that it is a great sin to defame Jewish women. Perhaps you are saying this out of anger, or you are driven by false impressions? This is criminal! Perhaps you are concerned because of the story we heard about, with the governor?Footnote 24 Put your mind at ease today and come back tomorrow.” They peppered him with words like these to ascertain the matter and to seek the truth. Finally, he said, “Know that I am not saying this because of the affair with the governor, but because I saw with my own eyes so that I truly believe she has committed adultery. Also know that I warned her several times not to ensconce herself with so-and-so and so-and-so, and I discovered that she had violated my warning several times. You, my rabbis, also heard that she is rude and is suspected of many types of shameful activity. Perhaps to you it is doubtful, but to me it is clear.” When the sages heard this they told him, “Know that whoever believes these things about his wife, must divorce her according to divine law. She is forbidden to you.” He requested a formal record of this ruling, and it was written and signed. A few days later, regret arose in his heart and he missed his wife,Footnote 25 and he asked one of the sages whether he could retract his statement, and he was told that he could, and he asked the sages about this.

The legal disagreement that erupted between the two judges, Rabbi Mordekhai Kimḥi and Rabbi Abraham of Montpellier, was whether the husband's retraction of his accusation was admissible. Rabbi Abraham was of the opinion that, in view of the husband's credible explanation that his accusation had been a total fabrication, the accusation and its legal ramifications are void.Footnote 26 Rabbi Mordekhai saw it differently. After retelling to his counterpart the story of the husband's first appearance in court, “which you know since you were there with us, and joined us in issuing the prohibition,” he explained, “Now they taught him to make the legal claimFootnote 27 that he had set his eye on another woman, in order to retract his [earlier] words. Certainly there is no substance to his later words!”Footnote 28

Kimḥi's concern was not with the truth-value of the husband's claim, but with its mutability. Once the accusation of adultery had been accepted in court, it could not lightly be displaced. Although Jewish law provides for retracting statements that were made in court if a sufficient justification was provided, as Rabbi Abraham showed at length, Kimḥi refused to accept the retraction in this case. His court was being manipulated by the husband, and perhaps by some unknown others who had “taught him to make the legal claim,” and Kimḥi was unwilling to lend his imprimatur to such manipulation. In his closing words to Rabbi Abraham, Rabbi Mordekhai Kimḥi conceded that the Carpentras court could permit the man to return to his wife, as long as Kimḥi's name did not appear on the decision.Footnote 29

As to the husband's initial claim, it seems fairly clear that he was working with the halakhic category of the sotah (unfaithful wife).Footnote 30 He claimed to have warned his wife several times not to seclude herself with specific men—an exchange taken virtually verbatim from the Mishnah.Footnote 31 Obviously, the husband's intention was not to have his wife subjected to an ordeal in the Jerusalem temple. Whether his was a dramatized account of a real exchange between husband and wife, or a fictional story composed for the court, it was modeled on the sotah template in order to lend it poignancy and halakhic weight.

It seems likely that the husband brought the court order home and presented it to his wife, threatening to divorce her as an adulteress unless she made certain concessions to him. Faced with the official document and its inherent threat, the wife capitulated and gave the husband what he wanted, perhaps foregoing some of the financial rights promised to her in their marriage contract. Having achieved his goal, the husband hurried back to court and tried to retract the charges. Rabbi Abraham of Montpellier was content to go along with what, in his eyes, was a perfectly reasonable navigation of the Jewish legal system. But to Mordekhai Kimḥi it was but another example of a manipulative and reprehensible new legal culture.

The Ibn Tibbon Scandal

A picture of such calculated manipulation of the rabbinical court system emerges from a marriage dispute between cousins in Marseilles in 1255.Footnote 32 The cousins, Samuel ben Moses ibn Tibbon and Biongoda, daughter of Bella, were grandchildren of the famous philosopher and translator, Samuel ben Judah ibn Tibbon. Bella had married Jacob ha-Kohen, who died in Marseilles in the early 1240s.Footnote 33 It was possibly after the death of her husband that Bella moved from Provence to Naples, joining her uncle Jacob Anatoli, who had been invited to Naples to serve Frederick II as a translator.Footnote 34 Moses ibn Tibbon visited his widowed sister in Naples in 1245 and the two agreed to marry their children to each other at a future date. In 1252 Bella returned to Marseilles with her daughter Biongoda, but by this time Samuel had already been married to another woman.Footnote 35 And so, Biongoda herself was married in 1254 to Isaac ben Isaac ben Samson. Several months later, shortly after Biongoda's older brother died, Samuel ben Moses ibn Tibbon came before a Jewish court claiming that his cousin had been married to him several years earlier, and should therefore be considered his lawfully wedded wife now illegally cohabiting with another man.

The ensuing case is one of the very few medieval court proceedings that have been preserved almost in full, and it allows the historian a rare glimpse of the actual judicial process in all its complexity.Footnote 36 The court whose protocol reached us was the third to hear the case, and it included among its judges the famous philosopher Hillel of Verona, who presumably knew the Ibn Tibbon family professionally.Footnote 37 Besides this protocol, which ends without a clear resolution of the case, a responsum by Rabbi Samuel ben Joseph ben Shelemiah Mikhtam, written in the wake of the claims made in that court, was preserved and included in THP.Footnote 38

The two cousins had court representatives, though only Biongoda's lawyer, Abraham ben Laveiro, is named. Samuel claimed that he had legally wed Biongoda no fewer than three times, but he was able to produce witnesses only to the latest of these, which was supposed to have taken place in 1254. For her part, Biongoda claimed that besides the original betrothal agreement made between her mother and her uncle when she was a child, no subsequent action had ever been taken to join the two cousins. The time limit for that agreement had long since elapsed, and, in fact, Samuel himself had married someone else, and there was no impediment to her marriage to Isaac. She went on to assert that Samuel's claim was not only baseless, but it was motivated by grossly ulterior motives—Samuel was merely the front man for a plot to extort money from her mother Bella and her father-in-law Isaac ben Samson.

Several clues suggest that, in fact, Samuel's claim was unfounded and that the court case was simply a means to exert pressure on Biongoda's family. First, it is unclear what Samuel hoped his suit would achieve. If indeed Biongoda had been married to him at the time that she wed Isaac ben Isaac, then she was an adulterer and Samuel would be forced to divorce her.Footnote 39 That Samuel himself was married at the time he brought the suit, that his father Moses took no part in the proceedings, and that (according to Biongoda) both Moses and Samuel attended Biongoda's wedding to Isaac, all weighed against the seriousness of Samuel's claim.

Whether Biongoda's explanation was correct, that Samuel was being manipulated by a group of men who had designs on Bella ha-Kohen's money, or whether Samuel himself was looking to gain from the move, as suggested by Rabbi Samuel Mikhtam in his responsum about the case, it seems clear that the Jewish legal system was being used here to further private interests.Footnote 40 That is, Samuel's group was not content with merely asking the court to provide a ruling in their favor—he and his supporters constructed legal arguments calculated to achieve that outcome, stepping into a realm usually reserved for the judges themselves. They may have encroached even further into judicial territory. According to Biongoda, one of the three different courts convened in the matter was actually composed of members of the cabal against her mother. Though they were not professional judges, the members of this court seem to have conformed to the basic guidelines of Jewish procedural law, since the subsequent courts did not dismiss their findings out of hand.

A striking aspect of the case, and especially of Abraham ben Laveiro's rebuttal on behalf of Biongoda, is the extensive focus on procedural formalities. In his first response, Ben Laveiro attacked the legitimacy of the preceding court, which had first heard Samuel ibn Tibbon's testimony, because, according to Ben Laveiro, that court was insufficiently learned (and also allegedly rigged), one of the witnesses acquiesced to the testimony of an earlier witness instead of providing his own independent testimony, and moreover the witnesses as a whole should be considered unsavory characters.Footnote 41 Later, Abraham brought more specific claims against one of Samuel's witnesses, Mordekhai ben Yekutiel, who had reportedly sworn before a group of Jews in Aix-en-Provence that he knew nothing about Samuel ibn Tibbon's alleged marriage to Biongoda. This attempt to strike Mordekhai ben Yekutiel's testimony supporting the marriage then triggered a further exchange of counterclaims between the sides.Footnote 42

Jewish law does allow litigants to disqualify their opponents’ witnesses, but such a preoccupation seems to have been rare in medieval Jewish courts.Footnote 43 The grounds for such disqualification must be formal—emotional grounds, such as the witness's love for one litigant or hatred for another, are inadmissible.Footnote 44 In canon law, however, such “exceptions” to opposing witnesses, called reprobatio testium, were quite prevalent.Footnote 45 In fact, as Daniel Lord Smail has shown, this process of each side disqualifying witnesses for the other side played a central role in the emotional and social significance of the legal procedure as a whole.Footnote 46 Witnesses were often accused of being partisan, friends of one side or sworn enemies of the other, and it was these emotions of love and hate that lay at the root of the cases in which they were made: “Denunciations, summons, cedulas, articles, exceptions, depositions: these procedural gestures became the means for expressing hostility. The procedural norms of Roman-canon law and the local customs of Marseille's courts determined how these gestures would be strung together in sequence. They acted like a grammar or syntax that structured this new lexicon of hostility.”Footnote 47

Hate and animosity figured prominently in the Ibn Tibbon case as well. Samuel claimed his witnesses told him that they refused to testify because they had been intimidated “by your antagonists.”Footnote 48 Biongoda, as represented by Abraham ben Laveiro, claimed that the first court that had initially heard the testimonies was composed of judges who were “all her enemies and the enemies of her husband R. Isaac. They created and caused all of the fighting and bickering and hatred that erupted between Samuel and Biongoda and her mother Bella. This is known to the whole world.”Footnote 49 According to Ben Laveiro, Samuel ibn Tibbon and his co-conspirators explained to the witnesses that their goal was to extract money from Bella and her family, “for she has a great deal of money, and how can our enemies keep all that wealth?”Footnote 50

The similarities between the Christian court cases from Marseilles analyzed by Smail and the Ibn Tibbon case also from Marseilles extend beyond the underlying emotions and the preoccupation with maligning and disqualifying witnesses. Several aspects of Samuel ibn Tibbon's claims in the case seem to make sense only in the context of canon law, rather than in Jewish law. The first and most important was his claim that Biongoda's marriage to him had preceded her marriage to Isaac ben Isaac. According to canon law, in a case like this of bigamy, the woman would be compelled to return to whichever man had the earliest claim to marriage, that is, to Samuel, who claimed to have married her years before.Footnote 51 But Jewish law would consider her an adulterer and her second marriage null and void. She would be forbidden to continue to live with her “husband” (in this case, Samuel ibn Tibbon) and also barred from her “lover” (here, Isaac ben Isaac).Footnote 52 While it is possible that Samuel did in fact intend to use the “doomsday weapon” out of pure spite, it seems likely that his legal strategy was proposed by someone who had the Christian rule in mind, which would have allowed Samuel to take Biongoda as his wife.

Additionally, Samuel claimed that the language he used to wed Biongoda was “You are now my fiancée and you will be my fiancée by this coin.”Footnote 53 This distinction between present and future tense is irrelevant to Jewish law, in which marriage can only be contracted in the present, or conditionally with a specific end point (e.g., “you will be married to me in thirty days”).Footnote 54 In canon law in the thirteenth century, however, both terms were in common use, and the distinction between verba de presenti and verba de futuro lay at the center of a complex legal debate.Footnote 55 The terms actually used by the couple did not necessarily correspond to this legal distinction, and most people did not understand the difference between the two forms.Footnote 56 Additionally, in certain jurisdictions, especially in the French realm, courts were more likely to enforce marriages that were alleged to have been created in the future tense, and to punish plaintiffs who claimed to have contracted clandestine marriage in the present tense. In light of all this, when consulted, lawyers would likely have advised their clients to claim the future tense, even if in fact they had used the more straightforward present tense.Footnote 57

Another sticking point at various stages of the saga in the Ibn Tibbon case was the precise age of Biongoda. Samuel claimed that at the present time Biongoda was more than sixteen years old, having been born in 1239, and he produced evidence that she had testified in the bishop's court and in an official notarial document that she was more than twelve years old (apparently, in 1254).Footnote 58 According to his narrative, Samuel had first married his cousin when she was twelve years old in 1252, while she was still living in Naples, and he performed a second and third marriage ceremony after her arrival in Marseilles in 1254.Footnote 59 Biongoda herself—who denied that any marriage had taken place—claimed to have been nine years old at the time of the alleged betrothal in Naples, and twelve years old when she married her husband Isaac ben Isaac in late 1254.Footnote 60 The crux of this dispute was whether Biongoda was twelve in early 1254, when Samuel claimed to have wed her a second and third time. In Jewish law, a father can give his daughter in marriage from the moment she is born, and this marriage becomes fully binding from when she is three years old. When the father is deceased, as Biongoda's was, her mother and brothers can marry her off, but this marriage is conditional and the girl can renounce it when she reaches majority at the age of twelve. Samuel made the explicit claim that the marriage was made by Biongoda's mother, and that Biongoda had not renounced the marriage on reaching majority.Footnote 61 The question of Biongoda's age in 1254, thus, should have been immaterial.

And yet, in canon law in the thirteenth century, child marriage was unacceptable, and nonage (underage as an impediment to marriage) was a major issue in marriage litigation.Footnote 62 A marriage contracted before the age of twelve (for a girl) would not be binding unless it was followed by sexual intercourse, and the intervention of the child's parents could not make it binding. In that legal context, the question of whether or not Biongoda had reached the age of twelve was crucial for Samuel's claim that his marriage in 1254 was binding, even though Jewish law would have approved it even at an earlier age on the strength of her mother's assent.

Samuel's seemingly imperfect grasp of Jewish law should not surprise us. Other medieval societies took what they knew of their local legal system and used it to the best of their ability and to their best advantage.Footnote 63 How did they acquire this legal knowledge? From stories, from neighbors, from people who had won court cases in the past.Footnote 64 Stories shared by neighbors spread in medieval towns from Christians to Jews even when tensions between the communities were high.Footnote 65 The Jews of Marseilles, especially the financial elite among them, maintained good relations with their Christian neighbors and emulated them in some of their cultural mores.Footnote 66 Mingling in the markets and on the piers of Marseilles, they could easily have exchanged stories of legal victories and defeats, plots and intrigues, thus imparting to each confessional group some insights into the legal world that the other lived in. In the financial realm, legal principles, concepts, and customs from larger Provençal society were quickly adapted and adopted by Jews and even by rabbinic courts and talmudic commentators.Footnote 67 However, when those customs spilled into the realm of marriage law, which they inevitably did, some halakhists became alarmed and tried to disengage local Jewish practice from the perceived external influences.Footnote 68

No Jewish court would have accepted the full range of legal claims that Jewish plaintiffs learned from their Christian friends—but that would not have stopped Jews from trying. Some claims would be accepted, others rejected, and at the very least, it could buy time. Consulting Christian colleagues for legal tips could only be helpful to the litigious medieval Jew. In precisely the same way, Jewish litigants picked up information, tips, and stories from their Jewish friends and cobbled together a sense of what could be said in a rabbinical court.

Since we do not possess the decision of the court in the case of Samuel and Biongoda, it is hard to determine conclusively how successful each legal claim was. However, the responsum written by Rabbi Samuel ben Joseph Mikhtam can give some sense of what worked, what failed, and what was not even worth considering. His responsum devotes extensive attention to the character and legal standing of the witnesses in the case.Footnote 69 The question of Biongoda's age was treated seriously, but the language used by Samuel to create the marriage, combining present and future tenses, was rejected as flawed.Footnote 70

Concluding, Rabbi Samuel ben Joseph mentioned another claim made by Samuel ibn Tibbon—that Biongoda had in fact been married to Isaac, but that she had declared to him that she was divorced and had accepted Samuel's marriage proposal.Footnote 71 According to Jewish law, in such a case, the second marriage would be at least partially effective, despite the protestations of the first husband.Footnote 72 However, Rabbi Samuel ben Joseph dismissed this claim as patently false: “I did not make any assumptions based upon it, nor did I discuss it at length to depend upon it, because it seems to be a claim that they taught him and a lie that they trained him in, and just as the plaintiff's marriage is a lie, so is this divorce claim a lie.” Whether because it was unsupported by any evidence or because it sounded so farfetched, Samuel's claim that Biongoda truly loved him did not convince the rabbi.

Whether or not Samuel ben Moses ibn Tibbon truly believed that Biongoda was his wife, the legal strategies that he employed in pursuing that claim, and the steps that Biongoda took to reject his claim, reflect a Jewish legal culture informed both by Jewish legal precedents and by the surrounding legal culture of medieval southern Europe. The degree to which those influences had reached into non-rabbinic Jewish culture and had affected the manner in which (elite) Jewish laypeople related to the rabbinic legal system is of crucial significance in understanding the role of Jewish law in practice during the Middle Ages.

Jewish Lawyers in Provence

A crucial fact in appraising the legal strategies employed in the Ibn Tibbon case is that both sides had legal representatives. Biongoda's lawyer appears by name—Abraham ben Laveiro, while Samuel's representative is simply described as his to‘en (advocate).Footnote 73 While legal representatives had appeared in Jewish courts for centuries, they had done so almost exclusively on behalf of women, and usually in the limited capacity of providing the required presence in court when female plaintiffs or defendants could not (or did not want to) provide themselves.Footnote 74 In the Ibn Tibbon case, not only was Biongoda represented by Abraham ben Laveiro, but her male cousin also had a representative.

These were not simply representatives minding their client's business—they were active participants in molding the legal proceedings. The rebuttal provided by Abraham ben Laveiro to Samuel ibn Tibbon's claims, on behalf of Biongoda, provides the best proof of this role.Footnote 75 In his lengthy response, two elements stand out. First, it is studded with references and citations of rabbinic literature. In rabbinic responsa about court cases, the citation of sources is usually the province of the respondent, or of the court that was consulting a more senior rabbinic authority in the matter. The disputants themselves (as far as surviving sources allow us to determine) did not usually presume to possess any legal knowledge and offered only their version of the story. Laveiro's knowledge of law can be traced to a single source—Sefer ha-‘ittur, a twelfth-century legal compendium by Rabbi Isaac ben Abba Mari of Marseilles.Footnote 76Sefer ha-‘ittur is devoted to Jewish civil law, and it is organized thematically, unlike most earlier halakhic works tied to the order of the Babylonian Talmud.Footnote 77 As such, it was an ideal textbook for practicing lawyers who needed access to the texts and opinions of Jewish law but were not intimately familiar with its intricacies —which is apparently just the sort of lawyer that Laveiro was.Footnote 78

That lawyers played a role in Provençal Jewish courts that was unusual for rabbinic courts at the time emerges from a responsum penned by Rashba, the highly influential rabbi of Barcelona (d. c. 1310), answering a question sent to him from Avignon.Footnote 79 Rabbi Joseph ben Abraham, a member of the rabbinic court in Avignon who had inherited from his father the byname Barukh ben Neriah, asked Rashba who should pay the expenses of a court case. Should each side handle its own expenses, or should the losing party compensate the victor? The rabbi from Avignon emphasized that these expenses had a direct influence on the outcome of the case, and that denying the victor his remuneration might lead to litigants avoiding the rabbinic court in the future. Rashba responded quizzically—what expenses were at stake? In gentile courts, he knew, there were lawyers whose expenses must be paid by one of the sides. But surely Rabbi Joseph was speaking of a rabbinic court, where such things were unheard of? Although Rashba had not heard of lawyers in Jewish courts, in Avignon they were apparently more common.

Lawyers began to proliferate in secular and ecclesiastical courts in Europe over the course of the (twelfth and) thirteenth centuries; this process had its origins in Italy and southern France.Footnote 80 Although legal representatives could be found on occasion in Jewish courts from the early Middle Ages, they became more ubiquitous only from the fifteenth century onwards.Footnote 81 The account of Samuel ben Moses ibn Tibbon suggests that in southern France, at least, Jewish lawyers were active two centuries earlier, following closely in the footsteps of their gentile counterparts.

Choosing the Forum

The presence of lawyers in the above cases complicated matters for the rabbinic judges. But their appearance in these sources also serves a signpost to the fact that these Jews had chosen to pursue their cases in rabbinic courts and were prepared to invest good money in that enterprise. Without question, they could have chosen otherwise. Alternatives were abundant, particularly non-Jewish courts. Jews in Provence and Languedoc availed themselves of the legal systems in the area, even in cases involving only Jews.Footnote 82 They routinely utilized local notaries to formalize the financial aspects of their marriage agreements.Footnote 83 Court documents from the fourteenth century also preserve Jewish domestic fights over marriage and divorce brought before local gentile judges instead of Jewish ones, but these were quite rare.Footnote 84

Historians studying medieval Jewish communities in Islamic lands have illuminated the complex ways in which Jews maneuvered between Jewish and Islamic courts, attempting to reap the optimal result at the minimal cost, in terms of financial expenses, time wasted, or social capital lost.Footnote 85 As pointed out recently, “forum-shopping among institutions speaking different languages and reflecting diverging notions of justice entails considerable self-awareness.”Footnote 86 Similar questions surely guided Jewish litigants in medieval Provence, who were concerned not merely with obtaining the money they demanded, but also with achieving victory over their antagonists in the social arena. It would seem that local non-Jewish courts were an acceptable venue in which to resolve monetary disputes, but that matters of substantive Jewish law were pursued in Jewish courts.'

If deciding between a Jewish and non-Jewish court was only the first choice, choosing the Jewish venue was equally important. Jews often turned to courts outside of their immediate environs in hopes of achieving a different result from the one they expected from their local court. Such a move was often the outgrowth of local politics or personal relationships between the local judges and one of the litigants.Footnote 87 Sometimes it was possible to choose between a professional court and a temporary court of three Jewish men convened solely for the case at hand. An important court existed in Marseilles in the twelfth century, led by Rabbi Isaac ben Abba Mari (author of Sefer ha-‘ittur), and the judicial activity of local sages there is mentioned at the end of the thirteenth century.Footnote 88 Yet, in pursuing his suit, Samuel ibn Tibbon made use of three courts, all of which seem to have been composed of laypeople convened ad hoc.Footnote 89 Perhaps, unlike the husband who pursued Rabbi Mordekhai Kimḥi through the streets of Carpentras, Samuel did not actually need a ruling that would hold up to later scrutiny. His goals were primarily short-term, and even unofficial lay courts could provide the social pressure he needed to exert on Biongoda.

***

As the cases discussed here suggest, a change in medieval Jewish legal culture came from below. Over the course of the thirteenth century, Jews in Provence and Languedoc began to show new interest in the rabbinic legal system. People who would otherwise have resolved their problems in other ways (through violence, social pressure, or gentile courts) chose to appear in rabbinic courts. Claims that, in the past, would have been presented in layman's terms were wrapped in legal sophistication. Since most lay Jews did not know how to develop and present such sophisticated claims, they hired advocates to prepare and argue their cases for them. When Samuel ben Moses ibn Tibbon battled his cousin Biongoda in Jewish lay courts in Marseilles, these two young members of an elite family may have been ahead of their time in their aggressive and creative use of a range of legal tactics. But with time, the fashion seems to have spread. In the closing years of the thirteenth century, Rabbi Mordekhai Kimḥi expressed his deep concern and frustration, as a judge, with his courtroom and the legal tradition he represented being twisted out of his control. Other rabbinic judges, including his colleague Rabbi Abraham of Montpellier, accepted the situation without protest and perhaps even without noticing the change. If Jews chose to use rabbinic courts for their own purposes, with the help of lawyers and sophisticated legal arguments, that was no cause for alarm in Rabbi Abraham's eyes. It was simply a sign of the times. Just like non-Jewish society in the region, Jewish legal culture in Southern France was undergoing a shift towards “the consumption of justice.”

References

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22. One example of a lingering problem, which was usually raised by the husband rather than the wife, was the claim that the involvement of a non-Jewish court had created undue pressure on the husband to grant the divorce. That, for example, is what happened in the case that came before Maimonides (Teshuvot ha-Rambam, ed. Blau, Joshua, vol. 2 [Jerusalem: Mekiẓe Nirdamim, 1960]Google Scholar, 354, no. 196). At other times, objections to a ruling could arise from among the general public (e.g., THP, 113).

23. THP, 162–163, no. 50. Abraham of Montpellier composed a talmudic commentary, several parts of which are extant today. Roth, “Later Provençal Sages,” 130–142; Shatzmiller, Joseph, “Megillat ha-hitnaẓlut ha-katan le-Rabi Kalonymos ben Kalonymos,” Sefunot 10 (1966): 17–18Google Scholar. The third judge, Simon ben Meir, is not known from other sources.

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26. THP, 166.

27. A talmudic expression—B. Baba Batra 149a.

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39. A strikingly similar case was brought before Maimonides in Egypt—two months after a woman was engaged to one man, a second man came forward claiming to hold proof that her father had betrothed her to him. There, however, the woman was not married to either man but merely engaged. Maimonides, Teshuvot ha-Rambam, 352–354, no. 196 and 639, no. 364.

40. THP, 55.

41. THP, 71–75.

42. THP, 78–85. Abraham's disqualification of Mordekhai ben Yekutiel was based on the testimony of two further witnesses. Mordekhai ben Meir, one of Abraham's witnesses, was then accused by Samuel ibn Tibbon of having caused David ben Isaac of Marseilles to be caught by a Christian knight and held captive in Meyreuil, near Aix. Abraham then brought David of Marseilles, who testified that Mordekhai ben Meir was not involved in his captivity. Changing tack, Samuel ibn Tibbon brought other Jews who claimed that Mordekhai ben Meir had harmed them, to which Abraham responded by bringing witnesses that this Mordekhai had since repented publicly for his actions. Mordekhai ben Meir himself appeared in court and denied at least part of the wrongdoing of which he was accused. Coming back to Mordekhai ben Yekutiel, Abraham brought two witnesses to prove he was a usurer. Samuel claimed he could disqualify these witnesses, but did not bring proof.

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48. “‘Ba‘ale rivkha” (THP, 68).

49. THP, 73. On the significance of public knowledge in medieval court cases, see Smail, Consumption of Justice, 207–213.

50. THP, 75.

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53. THP, 71. The Hebrew term used by Samuel was 'arusah. He then went on to refer to Biongoda as his espoza (Levy, Emil, Petit dictionnaire Provençal-Français [Heidelberg: C. Winter, 1966 4]Google Scholar, 173).

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61. THP, 65, 67.

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70. Age: THP, 60. Language: THP, 64.

71. THP, 64. This claim does not appear in the court protocol in its present form, and is known only from Rabbi Samuel ben Joseph's responsum.

72. B. Gittin 89b; Maimonides, Mishneh Torah, hilkhot ’ishut 4:13 and Rabad's gloss ad loc.

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79. Rabbi Solomon ben Abraham ibn Adret, Teshuvot ha-Rashba, 1:940. The superscription to Rabbi Joseph ben Abraham Barukh ben Neriah of Avignon is found in MS Cambridge, Add. 500, fol. 246b.

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86. Sartori, Paolo and Shahar, Ido, “Legal Pluralism in Muslim-Majority Colonies: Mapping the Terrain,” Journal of the Economic and Social History of the Orient 55, no. 4–5 (2012): 656Google Scholar. See also von Benda-Beckmann, Keebet, “Forum Shopping and Shopping Forums: Dispute Processing in a Minangkabau Village in West Sumatra,” Journal of Legal Pluralism 19 (1981): 117–159Google Scholar; Shahar, Ido, “Legal Pluralism and the Study of Shari‘a Courts,” Islamic Law and Society 15 (2008): 112–141Google Scholar. Within a single culture, it might be possible to isolate the purely financial aspects of forum shopping—see, e.g., Klerman, Daniel, “Jurisdictional Competition and the Evolution of the Common Law,” University of Chicago Law Review 74, no. 3 (2007): 1179–1226CrossRefGoogle Scholar.

87. Urbach, Ephraim E., Ba‘ale ha-tosafot: Toldotehem, ḥiburehem, shitatam (Jerusalem: Mosad Bialik, 1980)Google Scholar, 486. See also Shatzmiller, Joseph, “Rabbi Isaac Ha-Cohen of Manosque and His Son Rabbi Peretz: The Rabbinate and Its Professionalization in the Fourteenth Century,” in Jewish History: Essays in Honour of Chimen Abramsky, ed. Rapoport-Albert, Ada and Zipperstein, Steven J. (London: Peter Halban, 1988), 72–75Google Scholar, for the involvement of French rabbis in two disputes in northern Provence.

88. On the twelfth-century Marseilles court, see Avraham (Rami) Reiner, “Rabbenu Tam u-bene doro: Kesharim, hashpa‘ot ve-darke limudo ba-talmud” (PhD diss., Hebrew University of Jerusalem, 2002), 237–270; Reiner, “From France to Provence: The Assimilation of the Tosafists' Innovations in the Provençal Talmudic Tradition,” Journal of Jewish Studies 65, no. 1 (2014): 77–87. THP 198–200, no. 59 contains a letter to Rabbi Mordekhai Kimḥi and his son Isaac in Carpentras, protesting their interference in a case from Marseilles. Loeb, “Un procès,” 17–18 claimed that the court in the Ibn Tibbon case was convened in Montpellier, but I see no evidence to support that assumption.

89. For a description of the first two courts, see THP, 70–71. The protocol preserved in THP is from the third court.