Maimonides and the Merchants: Jewish Law and Society in the Medieval Islamic World by Mark R. Cohen (review)

Abstract

Reviewed by: Maimonides and the Merchants: Jewish Law and Society in the Medieval Islamic World by Mark R. Cohen Robert Brody Mark R. Cohen. Maimonides and the Merchants: Jewish Law and Society in the Medieval Islamic World. Philadelphia: University of Pennsylvania, 2017. 248 pp. doi:10.1017/S0364009418000624 Mark Cohen's latest book focuses on the ways in which Maimonides's Mishneh Torah reflects the economic aspects of the society in which he lived, one in which—in contrast with the societies to which the authors of talmudic literature belonged—international trade and large-scale commercial enterprises filled a central role. Although I would count myself among those who tend, in Cohen's words, "to take the great codifier at his word when he insists in the Introduction to the Code and elsewhere that his work was simply a compilation … of rabbinic law up to his time and contained practically nothing new" (141), and would assert that this is an accurate characterization not only of Maimonides's view of himself but of the main thrust of his work, there is no doubt that his code includes some "updating" of talmudic law, an important aspect of which Cohen has revealed. In his opinion, Maimonides was motivated primarily by a desire to enable Jewish courts to deal satisfactorily even with cases not encompassed by earlier Halakhah in order to encourage Jewish merchants to settle their disputes in this framework rather than resorting to Islamic courts; this suggestion is plausible enough, although there is no direct evidence to support it (see inter alia pages 76, 94, and 101). The centerpiece of the volume is a study of Maimonides's treatment of a unique form of economic collaboration that predominated in the medieval Islamic world. Cohen calls this institution, which has been given various names by other researchers, şuḥba-agency. The essence of the arrangement is that each of two (rarely more) associates undertakes to execute without remuneration any commissions requested by his associate. Scholars who have written on the subject have often stressed the "informal" nature of this arrangement; Cohen, for example, emphasizes the fact that such an arrangement could be created orally, but in fact this was true of "formal" partnership agreements as well.1 In my opinion the most interesting features of this institution, from either an economic or a legal perspective, are two. First, when considered in isolation, each [End Page 458] commission executed by one associate on behalf of another appears to be a simple favor or act of friendship; it is only when the larger context is considered that the agent is seen to be compensated by the mutuality of the arrangement. Second, when merchants enter into a partnership they obviously cannot know in advance how much they will gain or lose as a result, but they do know that they are committing certain quantities of capital and labor and can expect to receive a given percentage of the profits or, at worst, to bear a certain percentage of the losses. In contrast, when they create a şuḥba-agency relationship neither partner has a clear idea of the obligations he is undertaking or the benefits he hopes to receive. The commissions he will be expected to perform on behalf of his associate and those that he will expect his associate to perform on his behalf will depend on future market conditions and economic opportunities. Nor was any effort made to set a financial value on the services that each associate performed on behalf of his colleague or to ensure that the exchange of unremunerated services was an equitable one. Cohen correctly emphasizes that Maimonides, like Saʿadiah Gaon a hundred and fifty years earlier, found a novel way to integrate this new sort of commercial arrangement into existing Halakhah, although it should be noted that neither author dealt explicitly with şuḥba-agency: each of them wrote in terms appropriate to a one-time commission, rather than a long-term and open-ended relationship.2 Saʿadiah's innovation was to treat the agent as a paid rather than an unpaid bailee; Maimonides's was to enable the merchant who commissioned the agent to impose an...