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

lawyers. 117 However, it is unclear to what extent they acted only in the absence of the person
being represented or more like lawyers today who are hired for their expertise even when one
can appear in court oneself. The Assarrafs and their Jewish associates only appointed other Jews
to represent them in court (I discuss these documents further in the following chapter). 118
However, I found six powers of attorney in which Muslims appointed Shalom to represent them.
These were all drawn up between May 1872 and August 1874, though I cannot explain why this
type of document only appears during these two years. 119 These powers of attorney are
particularly surprising since Mālikī law prohibited Muslims from appointing non-Muslims as
their wakīl. 120 The documents at hand suggest that this rule was ignored at least some of the
time. The fact that Shalom represented Muslims in court implies that his relationships with his
Muslim business associates were fairly intimate. It also indicates that these associates deemed
117
For a contemporary claim, see, e.g., Maeterlinck, “Les institutions juridiques au Maroc,” 480. For an example in
the secondary literature, see Cohen, Yehudim be-veit ha-mishpat, ha-me’ah ha-19, 191 (although in a different
volume, Cohen simply refers to wakāla as yippui koḥo, “power of attorney”: Cohen and Ben Shim‘on-Pikali,
Yehudim be-veit ha-mishpat, ha-me’ah ha-18, 489). Goitein, however, translates wakīl as “agent” or
“representative” (see, e.g., Goitein, A Mediterranean Society, v. 3, 103, 295). The wakīl of our documents is
somewhat different from the wakīl al-tujjār which Goitein describes from the medieval period (ibid., v. 1, 186-92).
The wakīl al-tujjār held a semi-permanent position as representative of foreign merchants in a given town, though
Goitein specifies that this was useful primarily for those merchants who could not appoint a friend as their personal
wakīl.
118
Eliezer Bashan claims that Jews did not have the right to represent other Jews in a sharī‘a court, and that Jews
were required to appoint Muslims to represent them or to appear in court themselves; he does not, however, cite any
sources for this claim (Bashan, Yahadut Maroko, 61). It is possible that this claim is based on the fact that Islamic
law does not permit employing an agent who is a different religion from that of the legal adversary (see Santillana,
Istituzioni di diritto musulmano malichita, v. 2, 337). According to this principle, Jews would not be able to appoint
a Jew to represent them in a case involving a Muslim (although there should still be no problem with a Jew
representing another Jew in an intra-Jewish case). In any case, the evidence I have found suggests exactly the
opposite—that normally Jews appointed other Jews to represent them in sharī‘a courts, most likely for cases
involving Jews as well as Muslims. There is also evidence that Jews in the Ottoman Empire appointed Muslims as
their legal representatives; see, e.g., the document in Cohen and Ben Shim‘on-Pikali, Yehudim be-veit ha-mishpat,
ha-me’ah ha-18, 489.
119
TC, File #7, 12 Rabī‘ I 1289; File #8, 15 Rabī‘ I 1289; File #9, 15 Rabī‘ I 1289; File #5, 16 Ramaḍān 1289; File
#8, 2 Dhū al-Ḥijja 1289; File #8, 17 Rajab 1291. In each power of attorney a different Muslim appointed Shalom as
his agent.
120
Santillana, Istituzioni di diritto musulmano malichita, v. 2, 337; Bashan, Yahadut Maroko, 61. However, it is
clear that the prohibition on having a Jew act as a Muslim’s agent (i.e., the active partner) in a qirāḍ (commenda)—
which is quite similar to the general prohibition on having a Jew represent a Muslim—was ignored, at least in the
context of medieval Spain and the Maghrib (see Lehmann, “Islamic Legal Consultation,” 45-6).
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