IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
Chapter Three: Crossing Jurisdictional Boundaries Shalom Assarraf passed away in the fall of 1917. As a prominent businessman, a savvy lawyer, a leader of his community, and—perhaps most important of all—the patriarch of a large and prosperous family, Shalom’s death almost certainly had an impact beyond the walls of Dar Assarraf, the familial abode. Practically, Shalom’s relatives had to sort out what was undoubtedly a large and fairly complex estate. Shalom was survived by three sons who, according to Jewish inheritance law, were his sole heirs. 1 The brothers divided up their late father’s estate so that each would get his fair share, and almost certainly had sofrim draw up a record of the ensuing settlement so that no one could dispute it in the future. 2 But the Assarraf brothers were not satisfied with this assurance of their agreement. After having notarized the division of inheritance in a beit din, Shalom’s sons also went to a sharī‘a court to record the settlement before ‘udūl. 3 For good measure they brought along one of the leading rabbis of Fez, who testified that the three brothers were Shalom’s only heirs according to Jewish law. Islamic law granted Jews the right to adjudicate succession according to Jewish law and without the interference of Islamic legal institutions. This meant that had the Assarraf brothers so desired, they could have had their inheritance settlement recorded in a Jewish court and left it at that—no need at all to go to a sharī‘a court. Yet the Assarraf heirs chose to have their 1 Although I do not know if Shalom had daughters, Jewish law allows for all the inheritance to go to sons even if a man is survived by daughters (daughters only inherit if there are no sons); similarly, it is not clear if Shalom was survived by a wife (or wives), but in any case she would not have inherited (except the amount of her ketubbah, were that still unpaid). See Menachem Elon, “Succession,” in Encyclopaedia Judaica, ed. Fred Skolnik and Michael Berenbaum (Detroit: Macmillan Reference, 2007). 2 I say “almost certainly” because I have not actually found a legal document drawn up in a beit din attesting to the division of Shalom’s estate. However, I have found many such documents for other families (see Chapter One), and venture to hazard an educated guess that given the importance of the estate, Shalom’s heirs would have done the same. 3 TC, File #3, 5 Ṣafar 1336. 118
agreement notarized according to Islamic law as well. What motivated them to bring this sort of intra-Jewish affair before a sharī‘a court? And what does their decision tell us about the kinds of borders separating one jurisdiction from another in nineteenth-century Morocco? Thus far, we have examined the ways in which Jews used batei din and sharī‘a courts largely according to the jurisdictional boundaries established in Islamic law. However, there were also a number of instances in which Jews—and Muslims, for that matter—crossed these boundaries; Jews went to sharī‘a courts for intra-Jewish matters, and Muslims went to Jewish courts to notarize contracts they had with Jews. At other times, Jews used both legal systems simultaneously, such as by having a contract notarized both according to Jewish law and according to Islamic law (as did Shalom Assarraf’s heirs). These overlapping uses of Jewish and Islamic courts are crucial to understanding how the two legal systems functioned alongside each other in pre-colonial Morocco. Jews and Muslims’ crossing of jurisdictional boundaries also reveal the extent to which individuals chose the court in which they decided to notarize their contracts or adjudicate their disputes. This was especially true for Jews, who moved between Jewish and Islamic courts for their day to day legal needs more easily than did Muslims. Naturally, it is necessary to keep in mind that Moroccans both Jewish and Muslim generally observed the jurisdictional divisions allotting certain cases to sharī‘a courts and others to batei din. Individuals did not have complete freedom in their navigation of the available legal orders. Nonetheless, even if intra-Jewish cases in sharī‘a courts and Muslims in batei din were somewhat exceptional, they were neither rare nor insignificant. The fact that Jews chose to adjudicate intra-Jewish matters in Moroccan sharī‘a courts fits with patterns observed by historians working on law in other parts of the Islamic world. (Muslims appearing in Jewish courts, on the other hand, is a phenomenon almost entirely 119
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agreement notarized according to Islamic law as well. What motivated them to bring this sort of<br />
intra-Jewish affair before a sharī‘a court? And what does their decision tell us about the kinds of<br />
borders separating one jurisdiction from another in nineteenth-century Morocco?<br />
Thus far, we have examined the ways in which Jews used batei din and sharī‘a courts<br />
largely according to the jurisdictional boundaries established in Islamic law. However, there<br />
were also a number of instances in which Jews—and Muslims, for that matter—crossed these<br />
boundaries; Jews went to sharī‘a courts for intra-Jewish matters, and Muslims went to Jewish<br />
courts to notarize contracts they had with Jews. At other times, Jews used both legal systems<br />
simultaneously, such as by having a contract notarized both according to Jewish law and<br />
according to Islamic law (as did Shalom Assarraf’s heirs). These overlapping uses of Jewish and<br />
Islamic courts are crucial to understanding how the two legal systems functioned alongside each<br />
other in pre-colonial Morocco. Jews and Muslims’ crossing of jurisdictional boundaries also<br />
reveal the extent to which individuals chose the court in which they decided to notarize their<br />
contracts or adjudicate their disputes. This was especially true for Jews, who moved between<br />
Jewish and Islamic courts for their day to day legal needs more easily than did Muslims.<br />
Naturally, it is necessary to keep in mind that Moroccans both Jewish and Muslim generally<br />
observed the jurisdictional divisions allotting certain cases to sharī‘a courts and others to batei<br />
din. Individuals did not have complete freedom in their navigation of the available legal orders.<br />
Nonetheless, even if intra-Jewish cases in sharī‘a courts and Muslims in batei din were<br />
somewhat exceptional, they were neither rare nor insignificant.<br />
The fact that Jews chose to adjudicate intra-Jewish matters in Moroccan sharī‘a courts<br />
fits with patterns observed by historians working on law in other parts of the Islamic world.<br />
(Muslims appearing in Jewish courts, on the other hand, is a phenomenon almost entirely<br />
119
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