Jewish Law and Litigation in the Secular Courts of the Late Medieval Mediterranean
By Rena N. Lauer
Critical Analysis of Law, Vol. 3:1 (2016)
Abstract: Although medieval rabbinic law generally forbade Jews from suing their co-religionists in state courts, this practice was widely accepted among some Mediterranean Jewish communities. This study focuses on one such community, the Jews of Venetian Crete’s capital city of Candia, during the century following the Black Death (ca. 1350-1450). Court records indicate that Candiote Jews quite often sued each other in Venice’s colonial courts. Unlike many other medieval Jewish communities, the rabbinical leadership of Candia took this intra-Jewish litigation as a given. Moreover, these leaders themselves accessed Venetian justice to sue fellow Jews. Among the factors that motivated Jewish use of the Venetian court was a special accommodation given to Cretan Jews: when litigation in the colonial court dealt with Jews’ marriages or divorces, judges were obligated to adjudicate according to Jewish law. Many Candiote Jews utilized this personal law privilege, and the Venetian court actively implemented it. The Catholic judges of the colonial court in Crete learned about Jewish law mostly from the litigants themselves, and not from a panel of rabbinic experts, giving these Jewish litigants significant agency in shaping not only the outcome of their marriage and divorce cases but also the government’s understanding of Jewish law.
Introduction: Normative rabbinic consensus in medieval Europe squarely forbade Jews from suing each other in secular or so-called “gentile” courts. Instead of airing intracommunal grievances before state judiciaries, Jews were directed to settle their disputes in their local Jewish court (beit din). The responsa of the unrivaled Barcelonan legal authority Rabbi Solomon ibn Adret (the Rashba, d. 1310), sought after by Jewish communities across medieval Europe, contain one of the most explicit articulations of this ban: Jews “are prohibited by the Torah from showing a preference for the law of the Gentiles and their ordinances. Moreover,” he writes, echoing the Talmud, “it is forbidden to bring litigation into their courts even in matters where their laws are identical to Jewish law.”
The Rashba’s main objection seems to lie in the notion that such behavior indicated a valuation of secular law as better than or as good as Jewish law (halakhah). For others, the prohibition stemmed from a fear of mistreatment by Christian judges. The influential Ashkenazi halakhist Meir of Rothenburg (d. 1293) forbade the use of secular courts to keep Jews out of “the clutches of the Gentiles” in which a Jew’s “life as well as his property is in jeopardy.” Furthermore, “the gentiles are happy to hold a Jew in their power, and, especially when commissioned by another Jew, their cruelty is boundless.”