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

(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