IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
deed signed by ‘udūl which attested to a Jew’s ownership of the property in question did not necessarily guarantee that the Jewish owner’s rights would be respected. Yet having such a document was certainly preferable to facing a qāḍī with no proof of one’s ownership that would be recognized in a sharī‘a court. In fact, rather than asking why Jews notarized their intra-Jewish contracts in sharī‘a courts, perhaps a better question is why Jews bothered notarizing these documents in Jewish courts. In other words, if Jewish courts recognized the validity of legal contracts drawn up according to Islamic law, could not Jews have simply used the sharī‘a court for all legal needs which did not fall under the category of ritual law (issur ve-ḥeter)? The fact that Jews so overwhelmingly used Jewish courts for the majority of their intra-Jewish transactions suggests that the Jewish legal system did successfully meet the needs of Jews most of the time. Jewish courts might have been more attractive due to their convenience and familiarity, especially for those Jews who were in less frequent commercial relations with Muslims and thus were less knowledgeable about sharī‘a courts. 30 Even if there were instances in which the difficulty of enforcement or the false claims of Muslims chipped away at the authority of Jewish courts, these were exceptional cases. The significant degree of independence which characterized Jewish courts in Morocco is part of what makes Jews’ jurisdictional boundary crossings all the more noteworthy; even with Morocco’s robust Jewish legal system, Jews still chose to use sharī‘a courts for intra-Jewish matters. 30 There might also have been differences in the cost of notarization at each court, although unfortunately we do not know enough about how much different courts charged for these services to make any systematic comparison. 126
Simultaneous Use of Jewish and Islamic Courts The use of sharī‘a courts for intra-Jewish matters could represent direct competition among the two legal systems. Yet at times, Jews used sharī‘a courts in tandem with batei din— that is, they had the same contracts notarized in both courts or drew up confirmations of a contract notarized by sofrim with ‘udūl (or vice versa). There is some evidence that Jews adopted similar practices in medieval Cairo and in the early modern Ottoman Empire. 31 This kind of simultaneous use of Jewish and Islamic courts further demonstrates that batei din and sharī‘a courts could function cooperatively. Far from always imperiling the independence and thus success of Jewish communities, sharī‘a courts could also work in harmony with the very batei din with which—according to most scholars— they were in competition. Moroccan Jewish legal authorities were central to this successful harmonization. Not only did rabbis and communal leaders recognize the validity of contracts drawn up in Islamic courts; at times they went even further by enacting communal ordinances (taqqanot, s. taqqanah) actually requiring Jews to register their legal transactions in a sharī‘a court. In seventeenth- century Fez the council of elders passed a series of taqqanot requiring the city’s Jews to register marriages, leases, and property transactions before the qāḍī as well as in a Jewish court. 32 Their motive in doing so was to prevent Jews from taking advantage of the simultaneous existence of the Jewish and Islamic legal orders. For instance, some Jews would sell a house to a Jew in a beit din and then sell the same house to a Muslim in sharī‘a court. Since ultimately Islamic law was the law of the land, the beit din would be unable to enforce the sale made under its auspices. When the unfortunate Jewish buyer went to the sharī‘a court with his bill of sale drawn up in 31 Goitein, A Mediterranean Society, v. 2, 400; Khan, Arabic Legal Documents, 1; Simonsohn, A Common Justice, 178; Wittmann, “Before Qadi and Vizier,” 112-13. 32 Ankawa, Kerem Ḥemer, Numbers 52-55. 127
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deed signed by ‘udūl which attested to a Jew’s ownership of the property in question did not<br />
necessarily guarantee that the Jewish owner’s rights would be respected. Yet having such a<br />
document was certainly preferable to facing a qāḍī with no proof of one’s ownership that would<br />
be recognized in a sharī‘a court.<br />
In fact, rather than asking why Jews notarized their intra-Jewish contracts in sharī‘a<br />
courts, perhaps a better question is why Jews bothered notarizing these documents in Jewish<br />
courts. In other words, if Jewish courts recognized the validity of legal contracts drawn up<br />
according to Islamic law, could not Jews have simply used the sharī‘a court for all legal needs<br />
which did not fall under the category of ritual law (issur ve-ḥeter)? The fact that Jews so<br />
overwhelmingly used Jewish courts for the majority of their intra-Jewish transactions suggests<br />
that the Jewish legal system did successfully meet the needs of Jews most of the time. Jewish<br />
courts might have been more attractive due to their convenience and familiarity, especially for<br />
those Jews who were in less frequent commercial relations with Muslims and thus were less<br />
knowledgeable about sharī‘a courts. 30 Even if there were instances in which the difficulty of<br />
enforcement or the false claims of Muslims chipped away at the authority of Jewish courts, these<br />
were exceptional cases. The significant degree of independence which characterized Jewish<br />
courts in Morocco is part of what makes Jews’ jurisdictional boundary crossings all the more<br />
noteworthy; even with Morocco’s robust Jewish legal system, Jews still chose to use sharī‘a<br />
courts for intra-Jewish matters.<br />
30<br />
There might also have been differences in the cost of notarization at each court, although unfortunately we do not<br />
know enough about how much different courts charged for these services to make any systematic comparison.<br />
126
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