IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

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Note on Transliteration and Names Words in Arabic and Judeo-Arabic are transliterated according to the system used by the International Journal of Middle East Studies. Words in Hebrew are translated to reflect the pronunciation of Modern Hebrew: ‘ is used to denote the letter ʽayin, ḥ for ḥet, k for a hard kaf, kh for a soft kaf, q for a quf, ṭ for a ṭet, and tz for a tzadi. A final hei is marked by an h, and double consonants represent a dagesh ḥazaq. I have standardized the transliterations of both Arabic names that appear in Hebrew documents and Hebrew names that appear in Arabic documents. The names of Muslims given in Hebrew sources vary considerably in their spelling, as do Hebrew names in Arabic sources. For the sake of consistency, I have transliterated Arabic names following their standard spelling in Arabic (such as Mas‘ūd) and Hebrew names following their standard spelling in Hebrew (such as Shalom). However, for Jews whose names had an equivalent in Arabic (such as Ibrāhīm for Avraham), I have used the Hebrew spelling. I have preserved the spelling used for Moroccan names written out in European languages as they appear in the original sources, except in cases where the sources also provide the Arabic or Hebrew form or when these forms are obvious. In citing archival sources, however, I use the spelling found in the documents themselves. x
Introduction This dissertation examines the ways in which Jews used the different legal institutions available to them in nineteenth-century Morocco. It focuses on three kinds of non-Jewish legal institutions: 1) sharī‘a courts, which applied Islamic law (sharī‘a), and operated as courts of first instance at the local level: 2) the Makhzan (the Moroccan central government) as a legal arbiter, and especially the central court of appeals created in the 1860s: 3) and consular courts, which were run by the consulates of foreign nations and were open to foreign subjects and those Moroccans who had acquired foreign protection. The jurisdiction of these consular courts was governed by the treaties that Morocco had signed with foreign states, allowing foreigners and protégés a measure of extraterritorial legal status. The socio-legal history of nineteenth-century Morocco remains largely unexplored. 1 Although some scholarship exists on the legal history of Jews in Morocco before 1912, this work has heretofore been based on literature by rabbinic authorities and thus focuses on how elites envisioned the legal lives of Jews. 2 In contrast, the present study is the first to draw on archival 1 By socio-legal, I mean the study of law as it was practiced in society, rather than the development of law itself. Socio-legal history seeks to write a social and cultural history of law and legal institutions. For those who have used a socio-legal approach, see, e.g., Leslie P. Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003); Iris Agmon, Family and Court: Legal Culture and Modernity in Late Ottoman Palestine (Syracuse, NY: Syracuse University Press, 2006); Ido Shahar, “Practicing Islamic Law in a Legal Pluralistic Environment: The Changing Face of a Muslim Court in Present-Day Jerusalem” (Ph.D. Dissertation, Ben-Gurion University of the Negev, 2006); Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity (New York: Palgrave Macmillan, 2011). 2 Haim Zafrani, Les juifs du Maroc : vie sociale, économique et religieuse, études de Taqqanot et Responsa (Paris: Geuthner, 1972); Shlomo A. Deshen, The Mellah Society: Jewish Community Life in Sherifian Morocco (Chicago: University of Chicago Press, 1989). An exception is Aomar Boum’s dissertation, which draws on legal documents to discuss Jewish-Muslim relations in southern Morocco during the twentieth century (Aomar Boum, “Muslims Remember Jews in Southern Morocco: Social Memories, Dialogic Narratives, and the Collective Imagination of Jewishness” (Ph.D. Dissertation, The University of Arizona, 2006), 182-276). However, Boum focuses on the social context of charging interest and what this can tell us about Jews’ place in Moroccan society (see esp. 250-64). For the legal history of Jews during the colonial period, see André Chouraqui, La condition juridique de l’Israélite marocain (Paris: Presses du livre français, 1950); Edouard Mouillefarine, Etude historique sur la condition juridique des juifs au Maroc (Paris: Carbonnel, 1941). 1
Page 1 and 2: IN THE COURTS OF THE NATIONS: JEWS,
Page 3 and 4: Abstract This dissertation examines
Page 5 and 6: Table of Contents Abstract………
Page 7 and 8: throughout the process was vital to
Page 9: and Arielle Rubenstein, Stephanie S
Page 13 and 14: on the internal history of the Jewi
Page 15 and 16: cases they made up close to half of
Page 17 and 18: study of law in the Islamic world w
Page 19 and 20: of these institutions remain opaque
Page 21 and 22: and, for some individuals, appealin
Page 23 and 24: actors with agency and to understan
Page 25 and 26: many of those who espouse the neo-l
Page 27 and 28: In recent years, the neo-lachrymose
Page 29 and 30: alternative framework to that of au
Page 31 and 32: including courts—which were of pr
Page 33 and 34: Recently scholars working on the me
Page 35 and 36: We are left with two models of Jewi
Page 37 and 38: Legal pluralism is an approach to u
Page 39 and 40: orders. I also turn the focus from
Page 41 and 42: Nonetheless, the tendency of forum
Page 43 and 44: Legal pluralism does not explain wh
Page 45 and 46: Jewish communities were no less var
Page 47 and 48: is perhaps best attested by the fac
Page 49 and 50: To help remind readers that the thr
Page 51 and 52: abusive Makhzan officials, infringe
Page 53 and 54: Chapter One: Between Batei Din and
Page 55 and 56: went to batei din and sharī‘a co
Page 57 and 58: school relevant for our purposes is
Page 59 and 60: Jewish and Islamic legal systems re
Page 61 and 62:
ehind, a large number were undoubte
Page 63 and 64:
atei din generally, it does reflect
Page 65 and 66:
Jews used batei din not only as not
Page 67 and 68:
Jerusalem. 33 The collection consis
Page 69 and 70:
(azraqu al-‘aynayn)—a trait for
Page 71 and 72:
undoubtedly made much of their mone
Page 73 and 74:
preventing members of the community
Page 75 and 76:
‘udūl. 76 These ‘udūl, whose
Page 77 and 78:
Eliyahu b. Ya'aqov Zohra bat Ya‘a
Page 79 and 80:
and Muḥammad would return the mon
Page 81 and 82:
Table 2.1 Types of Entries 2% 2% 2%
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allegation or deposition in a case
Page 85 and 86:
court approximately once a week, ei
Page 87 and 88:
The introduction of the “protecti
Page 89 and 90:
ule; the ‘udūl almost always too
Page 91 and 92:
documents would stand up as evidenc
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Empire. 49 A document in the Assarr
Page 95 and 96:
legal procedure was relatively mino
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een optional as not all bills of de
Page 99 and 100:
Qa‘da 1309 (June 12, 1892), two
Page 101 and 102:
mostly meant extending credit on go
Page 103 and 104:
Other release documents specify tha
Page 105 and 106:
al-faqīh Aḥmad al-Filālī al-Ma
Page 107 and 108:
Lease contracts, on the other hand,
Page 109 and 110:
which was operated by Muslims durin
Page 111 and 112:
Shalom’s knowledge of Islamic law
Page 113 and 114:
elow). Although the majority of law
Page 115 and 116:
weeks after the plaintiff filed the
Page 117 and 118:
gathered twelve men who testified t
Page 119 and 120:
whether the qāḍī accepted al-
Page 121 and 122:
in the Assarraf collection indicate
Page 123 and 124:
(ittifāqīyan) and were testifying
Page 125 and 126:
In another instance of oath avoidan
Page 127 and 128:
Sharī‘a courts provided a crucia
Page 129 and 130:
agreement notarized according to Is
Page 131 and 132:
ability and desire to move among di
Page 133 and 134:
‘udūl. 14 Most real estate trans
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equire or benefit from adjudication
Page 137 and 138:
Simultaneous Use of Jewish and Isla
Page 139 and 140:
evidence from the nineteenth centur
Page 141 and 142:
to sue other Jews in sharī‘a cou
Page 143 and 144:
But what about intra-Jewish lawsuit
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ut for the most part this is a here
Page 147 and 148:
the sum of three duoros per month.
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only in Jewish law. This happened i
Page 151 and 152:
in the millāḥ of Marrakesh on Ap
Page 153 and 154:
aware of Jewish law and sometimes t
Page 155 and 156:
of a rabbi to determine the proper
Page 157 and 158:
‘Aṭṭār, in order to find out
Page 159 and 160:
Muslims’ jurisdictional boundary
Page 161 and 162:
that they had successfully done so.
Page 163 and 164:
the Moroccan legal system more broa
Page 165 and 166:
translated as the territories under
Page 167 and 168:
elatively scant work on the legal h
Page 169 and 170:
law, even if they did not consisten
Page 171 and 172:
abrupt end after his death, as the
Page 173 and 174:
put it, “in all medieval Muslim s
Page 175 and 176:
about its image in the eyes of fore
Page 177 and 178:
an injustice or an act of oppressio
Page 179 and 180:
In designing its new army, the Makh
Page 181 and 182:
The Ministry itself, although in co
Page 183 and 184:
Minister of Complaints, a man about
Page 185 and 186:
It is not entirely clear whether th
Page 187 and 188:
initial letters. 102 The convention
Page 189 and 190:
whether the sultan simply failed to
Page 191 and 192:
Chapter Five: Appeals to the Minist
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Jews and the Ministry of Complaints
Page 195 and 196:
The nature of these sources prevent
Page 197 and 198:
Causes for Complaint Most of the ap
Page 199 and 200:
products (such as barley). 23 This,
Page 201 and 202:
appears numerous times). 29 While t
Page 203 and 204:
matter what their religious backgro
Page 205 and 206:
when amounts are specified they ten
Page 207 and 208:
cases which were ultimately settled
Page 209 and 210:
Jews who had been robbed. 62 The su
Page 211 and 212:
from July 28, 1892, a group of Jews
Page 213 and 214:
nature of sharī‘a courts. 83 In
Page 215 and 216:
legal proof of his claim. 91 It is
Page 217 and 218:
the Jewish victims were compensated
Page 219 and 220:
central government could only do so
Page 221 and 222:
and Muslim was responsible for arra
Page 223 and 224:
sometimes the Makhzan officials’
Page 225 and 226:
A more formidable obstacle to settl
Page 227 and 228:
The Jewish creditor, however, reque
Page 229 and 230:
The practice of exaggerating the va
Page 231 and 232:
official accused a Jew of falsifyin
Page 233 and 234:
esolve disputes with their Jewish d
Page 235 and 236:
property. 178 In this case, the Mak
Page 237 and 238:
Chapter Six: Collective Appeals to
Page 239 and 240:
frequency of Jews’ petitions acro
Page 241 and 242:
The concentration of petitions duri
Page 243 and 244:
“right”—as in, the rights to
Page 245 and 246:
merchants serve as judges on a rota
Page 247 and 248:
Makhzan officials at times evoked t
Page 249 and 250:
The evidence of Jews’ appeals to
Page 251 and 252:
governor). 46 The next winter the J
Page 253 and 254:
along with a legal document contain
Page 255 and 256:
Following this escalation of violen
Page 257 and 258:
The governor of Debdou similarly pr
Page 259 and 260:
custom and the sultan’s command.
Page 261 and 262:
minister of foreign affairs, receiv
Page 263 and 264:
Yet murder cases were not the only
Page 265 and 266:
Moroccan legal system. On the one h
Page 267 and 268:
In 1884 the Jews of Fez appealed to
Page 269 and 270:
Although at first these appeals mig
Page 271 and 272:
The Jews of Meknes appealed to the
Page 273 and 274:
In other instances, Makhzan officia
Page 275 and 276:
about their own coreligionists. The
Page 277 and 278:
Europeans—a sentiment that at oth
Page 279 and 280:
complain about their muḥtasib, em
Page 281 and 282:
Chapter Seven: Foreign Protection a
Page 283 and 284:
Perhaps most important, however, is
Page 285 and 286:
of consular courts functioned throu
Page 287 and 288:
of Muslims from becoming protégés
Page 289 and 290:
cases between its own nationals or
Page 291 and 292:
of consular courts by specifying th
Page 293 and 294:
an important moment in the history
Page 295 and 296:
were required to notify their consu
Page 297 and 298:
dealt with cases by means other tha
Page 299 and 300:
In other instances, consuls wrote t
Page 301 and 302:
qāḍī” attesting a debt owed t
Page 303 and 304:
The following two chapters examine
Page 305 and 306:
clarify when and why he had taken t
Page 307 and 308:
Even scholars who argue against see
Page 309 and 310:
ecognize their contract since “th
Page 311 and 312:
of the individuals concerned. 31 Pr
Page 313 and 314:
concerning the incident, which they
Page 315 and 316:
speculated that the reluctance of t
Page 317 and 318:
protection) of Yitzḥaq b. Nissim
Page 319 and 320:
cooperate with foreigners’ reques
Page 321 and 322:
Dinar Ohana), an American protégé
Page 323 and 324:
Jews tried to ensure a fortuitous o
Page 325 and 326:
ordered Assayag to stop paying Zagu
Page 327 and 328:
efused. 100 Faced with this dead en
Page 329 and 330:
claimed that Emsellem had no right
Page 331 and 332:
number of foreign subjects and prot
Page 333 and 334:
By subjecting the suit to Moroccan
Page 335 and 336:
sued Mas‘ūd al-Shayẓamī (Meso
Page 337 and 338:
Foreign subjects and protégés wer
Page 339 and 340:
confirmed that this meant the Jews
Page 341 and 342:
AIU’s attention either through pe
Page 343 and 344:
A competing narrative of Moroccan J
Page 345 and 346:
non-Jewish Westerners alike, I argu
Page 347 and 348:
international press. Demnat might s
Page 349 and 350:
attribute the Makhzan’s efforts t
Page 351 and 352:
The events in Demnat were not the o
Page 353 and 354:
finally wrote to Muḥammad Bargās
Page 355 and 356:
wearing Muslim clothing and told hi
Page 357 and 358:
of 1863. Four Jews were accused of
Page 359 and 360:
made an honest mistake, the effect
Page 361 and 362:
etracted his initial testimony clai
Page 363 and 364:
the remaining two subjects. Only af
Page 365 and 366:
organizations, and the foreign pres
Page 367 and 368:
Marseillais, The Times, The Pall Ma
Page 369 and 370:
coreligionists’ position. 112 Avn
Page 371 and 372:
had been following the standard pra
Page 373 and 374:
did not declare that Jews and Musli
Page 375 and 376:
under the jurisdiction of Makhzan o
Page 377 and 378:
tolerance. 142 Such a policy would
Page 379 and 380:
concede to the American ambassador
Page 381 and 382:
Epilogue On March 30, 1912, France
Page 383 and 384:
courts to matters of personal statu
Page 385 and 386:
This sort of continuity in legal pr
Page 387 and 388:
intra-Jewish cases to these courts
Page 389 and 390:
Glossary of Arabic and Hebrew Terms
Page 391 and 392:
Ẓahīr: Royal decree (spelled “
Page 393 and 394:
United States: United States Nation
Page 395 and 396:
———. Kitāb al-istiqṣā li-
Page 397 and 398:
Becker, Jerónimo. España y Marrue
Page 399 and 400:
Chetrit, Joseph. Diglossie, hybrida
Page 401 and 402:
Ennaji, Mohammed. Expansion europé
Page 403 and 404:
Gotzmann, Andreas. “At Home in Ma
Page 405 and 406:
———. Les protégés : contrib
Page 407 and 408:
Marcus, Abraham. The Middle East on
Page 409 and 410:
Perron, M. Précis de jurisprudence
Page 411 and 412:
———. “Forum Shopping Among
Page 413:
Cultural Dimensions, edited by Mich
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