NOVEMBER 6TH, 2013 RELMIN WORKSHOP Liens familiaux et vie sexuelle en sociétés pluriconfessionnelles : quelles conséquences juridiques ? Family bonding and sexual practices in multiconfessionnal societies: what judicial consequences? Contact : [email protected] Sexual relations between Jews and Muslims in Spain according to the responsum 18:13 of rabbi Asher ben Jehiel Nadezda Koryakina (Université de Nantes, RELMIN) NB : les textes et articles distribués ici demeurent la propriété de leur auteur, ils ne peuvent être reproduits ou utilisés sans leur accord préalable. NB: the papers and articles circulated for this event remain the property of their author. They may not be reproduced or otherwise used without their prior consent. Sexual relations between Jews and Muslims in Spain according to the responsum 18:13 of rabbi Asher ben Jehiel Koryakina Nadezda RELMIN The text and its author. This paper discusses a responsum authored by rabbi Asher ben Jehiel (1250 – 1328) who was a commentator on the Talmud and a judicial authority in both Ashkenaz and Sephardi communities in the 13th century and throughout the entire medieval period. Born in Rhineland about 1250, he later emigrated to southern France and then to Toledo, Spain, where he became a rabbi and lived until his death in 1328. The text in question deals with the judgment delivered on a Jewish widow who had sexual relations with a Muslim and conceived two children with him. Her conduct provoked hostility of the Jewish community of Cuenca in Spain and she was finally condemned to severe corporal punishment (cutting off her nose) and ordered to pay a fine to the Christian authorities of the city. This responsum is dated (1320). The responsum mentions a Jewish judge issuing a sentence of corporal punishment for sexual relations (and possibly marriage) between a Jewish woman and a Muslim man. Such case should not fall under the competence of a Jewish tribunal. Initially it brought to the local Christian authorities. The local ruler called in the text “Don Juan” considered it an internal affair of the community. He therefore transferred it to a Jewish tribunal, while Christian authorities retained the ability to collect a fine. Although normally Jewish courts were not allowed to issue sentences of corporal punishment, especially as heavy as amputating parts of human body, the Jewish tribunal of Cuenca proceeded with the trial. Though severing nose was not prescribed by the classic sources of Jewish law (the Talmud, for example) as punishment for a crime of fornication, it seems that this corporal punishment was practiced in both the Christian and Jewish communities of Cuenca as a cruel and humiliating measure aiming at breaking illicit relations. Outside of Spain, cutting off nose for sexual relations was practiced widely in Byzantium. Such punishment for adultery and prostitution was used by Holy Roman emperor Frederick II. Equally astonishing was that even though Judah ben Waqar did not find witnesses to the act of fornication, he delivered the sentence as if the guilt was established. In this he followed a judicial practice widespread in the Christian milieu, where confessions of the accused person were considered sufficient evidence. As the sentence was quite severe, rabbi Judah mentioned in the legal questions as a member of the Jewish tribunal asked another halakhic authority (rabbi Asher) to support his decision and his judgment was upheld. No further details of the story have been preserved. In this paper, the following questions will be addressed: 1. Why was the aforementioned punishment chosen by the Jewish tribunal? 2. How could the relations between the aforementioned Jewish woman and Muslim man be classified? Cutting off nose in penitentiary law and common practices in Medieval and Early Modern Europe. This penalty was well-known in European countries. An article written by V. Groebner and translated by P. Selwyn “Losing Face, Saving Face: Noses and Honour in the Late Medieval Town” in History Workshop Journal, No 40 (1995), pp. 1 – 15, discusses the minutes of the Nuremberg Town Council. This source included a series of court cases in which women’s noses were cut off in public as punishment for the adultery. Cutting off noses was considered there to be “corporal punishment reflecting the crime” among other with the only difference: this very punishment was imposed unofficially, i.e. not by the court, but by common people as revenge for illicit sexual behavior. V. Groebner noticed that although other cases of deliberate assaults were taken seriously by the judges, all involved in cutting off noses of women get off very lightly at times escaping municipal justice. Why? Apparently, denasatio was only rarely imposed as an official punishment. This form of mutilation was reserved expressly for women involved in sexual crimes, although sometimes it was also imposed on men. It was used “quite literally to inscribe an illicit sexual act on the face”.1 Fornication was considered to be a crime. The men and women who launched attacks on other people’s noses had before them the penalties for adultery imposed by their municipal 1 V. Groebner, P. Selwyn, Losing Face: Noses and Honour in the Late Medieval Town, History Workshop Journal, No 40 (Autumn, 1995), p. 6. authorities, for example, imprisonment.2 Below there will be a few examples showing how this idea is supported by legal texts from Medieval Spain. V. Groebner maintains that the metaphor of the cut-off nose appeared frequently in the popular sayings of the late Middle Ages, where the mutilation becomes the symbol of lost face par excellence – lost honour. He reminds the following saying: “Non trunces nares, faciem quia dedecorares”.3 Strikingly, this could be compared to a passage from rabbi Asher’s responsum where rabbi Judah explains the punishment he would like to impose on the widow accused of having sexual relations with a Muslim. He states: “Cut off her nose in order to destroy (the beauty of) her face”. As the expression written in Hebrew4 could not be found in Classic Jewish texts, it seems possible that it represents a colloquial expression translated into Hebrew. Similar attitude can be found in Spain. Entire title 17 in Siete Partidas is set aside with laws dealing with adultery. This chapter contains sixteen individual laws concerning accusations of adultery, possible defenses, and punishment of the guilty party, almost always the wife.5 According to Fuero de Cuenca and Fuero de Sepúlveda, the offended husband has the right to kill both his wife and the man if discovered in flagrante delicto.6 On the contrary, the husband who has sex with another woman is said to do no dishonor to his wife. When a father finds his daughter in flagrante delicto, he has the right to kill her and the man.7 Separate laws in Siete Partidas applied to sexual misconduct between a Christian and a Jew or a Moor. Any Jew or Moor who had intercourse with a Christian woman was condemned to death.8 The Christian woman who engages in sexual relations with a Jew suffers the same punishment as the one who has intercourse with a Moor. If she is a virgin or a widow, for the first offense, she forfeits half her property to her parents or grandparents or, if she has no 2 Ibid. 3 Thesaurus Proverbiorum Medii Aevi (Berlin: Walter de Gruyter GmbH and Co, 1999), p. 418. הבועל בפני שקשטה פניה תאר לשחת כדי ,חוטמה לחתוך 4 5 V: 1411, Partida 7, Title 17. 6 H. Dillard, “Women in Reconquest Castille: the Fueros of Sepúlveda and Cuenca”, in: Women in Medieval Society, ed. Susan Mosher Stuard. The Middle Ages Series (Philadelphia: University of Pennsylvania Press, 1976), p. 81. 7 C. Scarborough, “Women as victims and Criminals in the Siete Partidas”, Crime and Punishment in The Middle Ages and Early Modern Age, A. Classen, S. Scarborough (eds.) (Berlin: Hubert and Co GmbH, 2012), p. 232. 8 V: 1442, Partida 7, Title 24, Law 9. relations, half her property belongs to the king. For the second offense, the Christian woman loses all her property, and she is condemned to death.9 Connie L. Scarborough in her article “Women as Victims and Criminals in the Siete Partidas” analyzes, among other sources, the song no. 107 of the Cantigas de Santa Maria – poems written during the reign of Alfonso X El Sabio (1221 – 1284). The poem tells the story of a beautiful Jewess who was caught in a crime, most probably of having extramarital sexual relations with a Christian man. The text mentions Jews who condemn and attempt to execute her.10 This detail seems to reflect the attitude of Jewish communities toward sexual contacts between Jewish women and non-Jews. As for the mutilations, the Chapter 15 of Feuro de Cuenca defines fee of 50 maravedis for severing nose and 100 maravedis for cutting off a nose and a lip together.11 This means that this mutilation was practiced otherwise there would be no grounds for sanctions. To conclude, the strategy chosen by Jewish judges, imitated legal practices of the larger community. The decisions made by the Jewish tribunal were based not on the normative law, but rather on the common idea of morality and local custom. The actions of the widow were not punishable according to the legal norms, but they were punishable according to popular beliefs of the society trying to control sexual behavior of its members. Finally, the last sentence of V. Groebner’s article suits perfectly the analysis of the text which is considered in our paper: “The honour of the late Middle Ages – like most other kinds of honour – was usually defended against the weaker party.12 Marriage or love affair? The text mentions several important details concerning the relations between the Jewish widow and the Muslim man.