IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
one should only resort to the testimony of a lafīf out of necessity (al-ḍarūra), such as in rural areas where ‘udūl (in the sense of notaries as well as upright men) were unavailable, but that in a capital city such as Fez the testimony of a lafīf is a priori unacceptable. 172 Al-Ṣanhājī cited a number of jurists in support of his position, including Muḥammad b. Muḥammad Ibn ‘Āsim (d. 829/1426, author of Tuḥfat al-ḥukkām fī nukat al-ʿuqūd wa'l-aḥkām), Aḥmad b. Yaḥya al- Wansharīsī (d. 914/1508, author of al-Mi‘yar), and the commentary by Muḥammad b. Qāsim al- Sijilmāsī al-Ribāṭī (d. 1214/1799) on ‘Amal al-Fāsī, the influential collection of Moroccan custom used widely by early modern and modern jurists. 173 Despite al-Ṣanhājī’s authoritative-sounding fatwā, Shalom did not give up. On the contrary, he went to two more muftīs (whose signatures are illegible) and engaged them to write opposing fatāwā dismissing al-Ṣanhājī’s arguments. The first muftī whom Shalom consulted produced a comprehensive rebuttal. He began by arguing that it was not necessary to specify the exact amount when the sum in question pertained to a guarantee, because “ignorance [of the sum] of guarantees is forgiven” (al-jahlu fī bābi al-ḍamāni mughtafar). He further noted that it was not necessary to specify the witnesses’ source of knowledge if their testimony seemed “likely and was valid” (idh al-rājiḥu wa-’l-ma‘mūlu bihi); for this he cited ‘Alī b. ‘Abd al-Salām al-Tusūlī’s (d. 1258/1842-3) well-known commentary on Ibn ‘Āsim’s Tuḥfa. 174 Finally, the muftī attacked al-Ṣanhājī’s claim about the permissibility of a lafīf in a city like Fez. He countered that if the claimant had intentionally planted the twelve men in order to testify, their testimony would be problematic. However, because they had been present “accidentally” 172 This point is also mentioned in another fatwā (see File #5, from lawsuit beginning 15 Muḥarram 1291). 173 The commentary concerns al-‘Amal al-fāsī by ‘Abd al-Raḥmān b. ‘Abd al-Qādir al-Fāsī (d. 1096/ 1675). Al- Sijilmāsī also wrote his own commentary on ‘amal, entitled Sharḥ al-ʻamal al-muṭlaq : al-musammā bi-fatḥ al-jalīl al-ṣamad fī sharḥ al-takmīl wa-’l-muʻtamad: on this, see Henry Toledano, “Sijilmasi’s Manual of Maghribi ‘Amal, al-‘Amal Al-Mutlaq: A Preliminary Examination,” International Journal of Middle East Studies 5, no. 4 (1974). 174 ‘Alī b. ‘Abd al-Salām al-Tusūlī, Al-Bahja fī sharḥ al-tuhfa (Beirut: Dār al-kutub al-‘ilmīya, 1998). 112
(ittifāqīyan) and were testifying about something they had happened to witness, it was permissible. 175 The second fatwā in Shalom’s support made a similar point, arguing that “all scholars” have agreed that the testimony of a lafīf was acceptable at all times and in all places, irrespective of the availability of ‘udūl. 176 The qāḍī eventually ruled that Aḥmad must guarantee the amount he owed to Shalom—presumably meaning the contested 196 riyāls—indicating that Shalom had successfully proven his suit. 177 More important than the resolution of this particular case is its illustration of how both Jews and Muslims deployed fatāwā during litigation. Oaths constitute a final element of judicial procedure which played an important role in Jews’ experience in court. As already discussed, dhimmīs were able to take oaths under Islamic law. In standard legal procedure, the defendant was asked to take an oath if he denied the charges and the plaintiff could not produce evidence of his claim. 178 However, there were also instances in which the plaintiff, or even both parties, might be asked to take the oath. For instance, concerning debts owed by an absentee (or deceased) debtor, the creditor could be asked to take an “oath of payment” or “oath of liberation” (yamīn al-qaḍā’) confirming that he had not received payment for the debt he claimed was still outstanding. 179 In one case, Ya‘aqov was 175 I am very grateful to Professor Hossein Modarressi for his help in clarifying this part of the fatwā. 176 Between the copies of these two fatwās is another fatwā in support of Aḥmad’s position, though it does not seem to make any substantively different claims from those of al-Ṣanhājī. (This is signed by a muftī named Muḥammad but the rest of his name is not given.) 177 See entry from 19 Rabī‘ I 1297. A month later, on 18 Rabī‘ II 1297, Aḥmad’s brother Bū Shitta and his wife Mubāraka bint Ibn Qudūr al-Qamrī al-Ya‘qūbī (presumably Zaynab’s sister) guarantee the payment of Aḥmad’s debt to Shalom. 178 Schacht, An Introduction to Islamic Law, 190-1. 179 Santillana, Istituzioni di diritto musulmano malichita, v. 2, 624-5; Almenouar Kellal, “Le serment en droit musulman (école malékite),” Révue Algerienne, Tunisienne et Marocaine de Législation et de Jurisprudence 74 (1958): 26-7. See also Alhaji, “Oath,” 31-2. The basic premise was that since the debtor was unable to speak for himself to say whether or not he had paid the debt, in the event that his representatives claimed not to know whether or not he had paid, the creditor had to swear that he had not yet been paid as the only way to establish that the debt was still outstanding. 113
- Page 71 and 72: undoubtedly made much of their mone
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- 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%
- Page 83 and 84: allegation or deposition in a case
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- Page 89 and 90: ule; the ‘udūl almost always too
- Page 91 and 92: documents would stand up as evidenc
- Page 93 and 94: Empire. 49 A document in the Assarr
- Page 95 and 96: legal procedure was relatively mino
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- Page 99 and 100: Qa‘da 1309 (June 12, 1892), two
- Page 101 and 102: mostly meant extending credit on go
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- Page 105 and 106: al-faqīh Aḥmad al-Filālī al-Ma
- Page 107 and 108: Lease contracts, on the other hand,
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- Page 113 and 114: elow). Although the majority of law
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- Page 121: in the Assarraf collection indicate
- Page 125 and 126: In another instance of oath avoidan
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- Page 131 and 132: ability and desire to move among di
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- Page 137 and 138: Simultaneous Use of Jewish and Isla
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one should only resort to the testimony of a lafīf out of necessity (al-ḍarūra), such as in rural<br />
areas where ‘udūl (in the sense of notaries as well as upright men) were unavailable, but that in a<br />
capital city such as Fez the testimony of a lafīf is a priori unacceptable. 172 Al-Ṣanhājī cited a<br />
number of jurists in support of his position, including Muḥammad b. Muḥammad Ibn ‘Āsim (d.<br />
829/1426, author of Tuḥfat al-ḥukkām fī nukat al-ʿuqūd wa'l-aḥkām), Aḥmad b. Yaḥya al-<br />
Wansharīsī (d. 914/1508, author of al-Mi‘yar), and the commentary by Muḥammad b. Qāsim al-<br />
Sijilmāsī al-Ribāṭī (d. 1214/1799) on ‘Amal al-Fāsī, the influential collection of Moroccan<br />
custom used widely by early modern and modern jurists. 173<br />
Despite al-Ṣanhājī’s authoritative-sounding fatwā, Shalom did not give up. On the<br />
contrary, he went to two more muftīs (whose signatures are illegible) and engaged them to write<br />
opposing fatāwā dismissing al-Ṣanhājī’s arguments. The first muftī whom Shalom consulted<br />
produced a comprehensive rebuttal. He began by arguing that it was not necessary to specify the<br />
exact amount when the sum in question pertained to a guarantee, because “ignorance [of the<br />
sum] of guarantees is forgiven” (al-jahlu fī bābi al-ḍamāni mughtafar). He further noted that it<br />
was not necessary to specify the witnesses’ source of knowledge if their testimony seemed<br />
“likely and was valid” (idh al-rājiḥu wa-’l-ma‘mūlu bihi); for this he cited ‘Alī b. ‘Abd al-Salām<br />
al-Tusūlī’s (d. 1258/1842-3) well-known commentary on Ibn ‘Āsim’s Tuḥfa. 174 Finally, the<br />
muftī attacked al-Ṣanhājī’s claim about the permissibility of a lafīf in a city like Fez. He<br />
countered that if the claimant had intentionally planted the twelve men in order to testify, their<br />
testimony would be problematic. However, because they had been present “accidentally”<br />
172 This point is also mentioned in another fatwā (see File #5, from lawsuit beginning 15 Muḥarram 1291).<br />
173 The commentary concerns al-‘Amal al-fāsī by ‘Abd al-Raḥmān b. ‘Abd al-Qādir al-Fāsī (d. 1096/ 1675). Al-<br />
Sijilmāsī also wrote his own commentary on ‘amal, entitled Sharḥ al-ʻamal al-muṭlaq : al-musammā bi-fatḥ al-jalīl<br />
al-ṣamad fī sharḥ al-takmīl wa-’l-muʻtamad: on this, see Henry Toledano, “Sijilmasi’s Manual of Maghribi ‘Amal,<br />
al-‘Amal Al-Mutlaq: A Preliminary Examination,” International Journal of Middle East Studies 5, no. 4 (1974).<br />
174 ‘Alī b. ‘Abd al-Salām al-Tusūlī, Al-Bahja fī sharḥ al-tuhfa (Beirut: Dār al-kutub al-‘ilmīya, 1998).<br />
112
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