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The Jewish Community
When precedents established in the Jewish cities of Roman Judaea and evolved in the academies of Sassanian Persia were applied to communities living in Christian Europe, they had to stretch to cover new situations. Some of those situation were created by political circumstances; others reflected demographic or economic realities. Three important issues facing all communities reveal the ways in which local circumstances combined with ancient precedent.
- Decision making: majority vs. minority rule
Communal decisions were made in the form of ordinances (taqqanot) (For examples, see Finkelstein). In Talmudic times, ordinances were made by the rabbis. The authority of an individual community to make ordinances was in itself an innovation in the middle ages, although it was based in part on the Talmudic texts discussed above. Ordinances had two components: the actual decision, and the ban (herem) used to enforce compliance. Our concern for the moment is the first part; the enforcement mechanism will be discussed below.
The Talmudic texts contained several significant ambiguities. First, they allowed the community to make decisions, but did not make it clear whether those decisions should be made unanimously or whether the majority could coerce the minority. The view of the community as a partnership, which was implicit in the sources mentioned above, tended to imply the former. Nevertheless, although scholars came down on both sides of the question, the weight of opinion tended to reject the idea that unanimous consent was needed in favor of more practical models of decision making. The earliest opinions take the authority of the majority as axiomatic; only in the later twelfth and the thirteenth centuries were attempts made to justify it (Elon 715ff). One method of justification was to combine the model of the community as partnership with a very different model: the community as court (beit din). The principle of majority rule was well established for Jewish courts. Elon treats this idea as a major innovation (Elon 701). The striking fact that none of the innovators felt a need to justify their interpretation suggests, however, that it did not seem radical to them (Klein, 2829). Blidstein refines the analysis of the nature of this anomalous court in two ways. First, he points out that it was the heads of the community, however designated, who had the powers of a court; the community itself is rarely seen acting like a court in the judicial sphere. Second, he argues that in the legislative activities of the community went beyond the normal powers of acourt (Blidstein 220-21, arguing against Finkelstein and Albeck; see Blidstein, 219-27 for sources and discussion). Thus the community was both more and less than an ordinary court.
The most eloquent opposition to majority rule came from Jacob b. Meir (known as Rabbenu Tam; France, twelfth century). Rabbenu Tam argued that the prior consent of each and every member of the community was needed before an individual could be coerced to abide by communal decisions. His real preference was to vest authority in rabbinic as opposed to lay leaders (Blidstein 235-39). In any case, for practical reasons, the majority of communal decisions were left up to the community's designated representatives. Representatives were known variously as elders (zeqenim), worthies or good men (tovei ha-ir), secretaries (parnassim), selectmen (berurim), faithful (ne'emanim) (see Assis, Golden Age, 110ff for discussion of terms). The authority of such leaders derived from the text in Megillah cited above, but the ambiguity about the relation of "good men" to community in that text left considerable room for medieval discussion of such questions as: how was the authority of the representatives conferred? what was the scope of their authority? was the presence of the community necessary for them to legislate, or merely its knowledge (Elon 727ff; Blidstein 227ff)?
The most pressing reason which communities had for coercing their members was the need to collect money from them, both for royal or seigneurial taxes, and for internal communal needs. From the point of view of the ruler, the primary rationale for granting communal autonomy was to make the communal leaders responsible for collecting royal taxes (Assis, Jewish Economy 183). This fact is of paramount importance; when Jewish scholars sought justifications for communal authority to tax, they knew in advance what the right answer had to be. Royal authorization significantly strengthened the ability of the communal leaders to tax (Assis, Jewish Economy 105). We are best informed about taxation in the Crown of Aragon, in Spain, thanks to abundant documentation, discussed in the recent work of Yom Tov Assis. The following discussion relies heavily on Aragonese material, although it will indicate where similar practices are known elsewhere.
Royal reliance on the communal leaders in matters of taxation had several consequences. First, the community was the basic unit of taxation; almost all Jews belonged to a specific community and paid taxes through it2E Second, in many cases, taxes were collected from the leaders in advance, leaving them to collect from their correligionists (Assis, Jewish Economy 119, 127). The custom was for the king to levy a fixed sum, and for the community to divide the tax burden as they saw fit (Assis, Jewish Economy ch. 3). Not surprisingly, this method, convenient for Jews and Christian rulers alike, was typical also in other parts of Europe (Meir of Rothenberg, Prague ed. no. 930).
Communities also collected money from their own members for various public needs. Since the community's right to exact money from its members was unquestionable if it were for their own protection, as many of these public needs as possible, as well as the entire burden of royal taxation, were expressed as necessary for the protection of the community. For example, one 13th century responsum describes how:
"the community had many expenses related to communal needs and security, such as the apportioning of bribes on the festivals of the idolaters, and similarly for city improvements. Also in the matter of the badges (for our lord the king ordered every Jew to wear a large badge, and to return to the Christians all interest taken from them above the statutory rate, and to lose his entire debt . . . ), the community spent a large sum of money with the effect that the size of the badge was reduced by half, and was not required if one wore a cloak, and that the creditor would not lose the debt but would only return what he received above and beyond the statutory rate (Adret 5:183)."
The primary argument of the responsum was that all of these expenditures provided for the protection of the community as a whole, and that all of its members could be forced to pay their share in reimbursing the leaders of the community for their outlay.
Communities also collected money for public needs which could not be attributed to communal protection, for example, to pay the salaries of communal officials, and for public works (Assis, Golden Age 137-43, 203; Adret 3:380). Individual donations and bequests also provided for public works, and for the establishment of charitable foundations; Assis argues that unlikeother areas, in the Crown of Aragon charity was exclusively left to individual initiative (Assis, Golden Age 242-43).
Various arguments might be used by members who wished not to pay taxes. The most general argument was that the individual had not consented to the tax in advance; this argument was opposed by most rabbinic authorities (see above, majority rule). Those moving from one community to another often found that both communities wished to tax them; numerous responsa deal with the limits of the tax liability of a new resident in a particular community (for example, Bazak 179-81; Assis, Jewish Economy 135-36).
A major source of social conflict in the Crown of Aragon was tax exemptions granted by the king to his favorites (Assis, Golden Age 188). In the responsum cited above, the two complainants argued that the king had exempted them from taxes, and that the exemption covered internal expenses as well as royal taxes; the community claimed that it only covered royal expenses. Other responsa attack the essential validity of tax exemptions. The problem was that the community was liable to the king for a fixed amount; a decrease in the number of tax payers meant a corresponding increase in the taxes of each community member (Meir of Rothenberg, Prague ed., no. 708). It was generally agreed that the ethical course was for the royal favorite to thank the king politely, and then continue to pay taxes (Epstein 29-32).
- The defense of communal autonomy
Communal autonomy meant more than the right and the responsibility of collecting taxes. It was prized in particular in that it generally involved the recognition of the authority of Jewish courts to decide cases between Jews according to Jewish law. The two most important concerns in maintaining judicial autonomy were the ability to enforce discipline and solidarity and the regulation of relations with the outside society.
There is more to effective authority than the ability to made decisions; they must still be enforced. The main tool available to the community was the herem, or excommunication. Judaism has no sacramental system from which to exclude transgressors. The herem is instead a form of ostracism. In the absence of police power, communities depended on the combined moral and social force of excommunication to enforce their will. Communities also used corporalpunishment and fines to punish wrongdoers. But in order to compel someone to submit to corporal punishment, it still might be necessary to threaten to put him in herem (Cohn, 344-55).
The most effective form of coercion was also the most dangerous: reliance on the secular authorities to punish the offender. In its mildest form this might entail fining him, and giving the fine to the king, on condition that his officers collect the fine (for one such case see Klein, 207 208). The most drastic form allowed the king to execute the offender. This occurred most notoriously in cases of informing, which will be discussed below. All forms of reliance on the secular authorities to enforce punishments were controversial; the Jewish community guarded its judicial autonomy jealously, and any appeal to the outside could put that autonomy in jeopardy. Threats to Jewish communal autonomy were perceived not only from use of the secular authorities for enforcement, but from recourse by individual Jews to Jewish courts. The effectiveness of the community depended on its ability to foster a sense of solidarity among its members, solidarity not only as members of their individual community but as Jews. This solidarity was undermined by appeals to the secular authorities, one reason why such appeals were in theory forbidden (Talmud Gittin 88b). This ban was reiterated from the Talmudic period to the Enlightenment.
The extent of the prohibition and the attitude to those who transgressed it varied somewhat. A taqqanah (ordinance) made ca. 1150 by a synod of French and German rabbis includes the provision that "no man or woman may who [sic] bring a fellow-Jew before Gentile courts or exert compulsion on him through Gentiles . . . except by mutual agreement made in the presence of proper witnesses" (Finkelstein, 155-56). The thirteenth century German scholar, R. Meir of Rothenberg condemned a Jews who "summoned his friend before a Gentile court without first receiving permission from the community or the Jewish court, even though he merely forced his friend to abide by Jewish law" (Agus, R. Meir 664). In general, in Spain, objections voiced to the constant appeals to the king in the Jewish communities were somewhat more equivocal. Although Jews were admonished to take cases against other Jews only to Jewish courts, the attractiveness of the non-Jewish courts was recognized. When Adret was askedabout a community which lacked qualified judges, one rationale which he gave for them to have a court however poorly qualified, was to provide an alternative to Christian courts (Adret 2:290). Royal records in the Crown of Aragon are full of cases between Jews heard either in the bailiff's court or by the king himself; these cases even include numerous divorce settlements, despite the fact that divorce was not permitted for Christians (Regne, passim). Moreover, the same rabbis who protested also cooperated with these appeals, consulting with the king or bailiff over the Jewish law applicable to the case, or hearing the case themselves on royal orders. This fact in itself is part of the reason for their relative equanimity: by their participation, they transformed appeal to the king into a system of shared judicial authority.
The situation was very different in Ashkenaz, where suing another Jew in a Christian court could be seen as informing, a much more serious offence. In the rabbinic period, Jews who informed to the Roman government could be killed without due process, on the grounds that they posed a threat to the entire community. In the thirteenth century, R. Meir of Rothenberg applied the category of informer, although not the extreme penalty, to a broad range of cases, essentially including any unauthorized accusation of a fellow Jew in a Christian court, whether the accusation was true or not, whether the offence was forbidden by Jewish law or only by the Christians (Agus, R. Meir 662-72). The appropriate penalty depended primarily on the harm done by the accuser. In cases of monetary loss, the accuser was to make good the loss; in some cases, he could also be flogged or fined; in a case in which the accused fled and was killed as a result, the accuser was to be seen as a murderer, to be flogged, disgraced and expelled from the community (Agus, R. Meir 664-70, 678). Only in rare circumstances was taking a fellow Jew to a Christian court not penalized, such as the Jew who said that his father-in-law told his creditors of his intention to leave town secretly; R. Meir says that if the only loss which he suffered was having to pay back his loan, then the father-in-law was free from punishment, although he should have said nothing (Agus, R. Meir 668)2E
The Ashkenazi interpretation may be compared to the much more restricted understanding of the category of informing typical in Spain. Solomon Adret, for example, defines informing as false testimony or testimony which led tounwarranted loss. Collecting a loan in the bailiff's court from another Jew would be entirely legitimate; accusing a Jew of theft would be more problematic (Adret 5:287). In another responsum, he deals with two Jews who helped arrest a third Jew. Questioned as to whether they were liable as informers to reimburse the arrested man for the bail which he posted, Adret replied that if they were concerned in the case, they were not liable, as they were entitled to prevent the arrested man from fleeing, for "if it were not for the fear of the government, men would steal from each other and consume [what they stole] and hide" (Adret 2:84).
The narrower definition of informing in Spain in part reflected the more stringent penalties applied to informers in Spain. In Ashkenaz, the informer would be fined or flogged. In Spain, the informer could be subject to capital punishment. Thus the fourteenth-century rabbi Isaac b. Sheshet Perfet, asked about a variety of procedural issues in an informing case, wrote to his questioners that even had the accused in the case done what he was accused of, it did not constitute informing, and the man was not subject to capital punishment. Informers could be killed, he explained, only if they posed a danger to the community as a whole, either because they were on the verge of informing or because they had been convicted on three prior occasions (Bazak 219-25).
The variation in attitude also reflected attitudes towards Christian society and its courts. In the above responsum, Perfet wrote that the accused could not be considered an informer merely for stating that a case should be moved from the Jewish to the gentile court since "it is well known that, whether the case came before the Jewish court or the gentile court, all would be conducted in a lawful manner" (Bazak 223). This may be contrasted to Meir of Rothenberg's statement that "after a Jew is delivered into the hands of the Gentiles they bring false accusations upon him until his very life is in danger" (Agus, R. Meir 666). In short, in Ashkenaz, the perception was that a Jew could not obtain justice in gentile courts, that if two Jews went to a Christian court, both would lose; in Spain the perception was that the courts were fair, that the innocent would be vindicated and the guilty punished.
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