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

to sue other Jews in sharī‘a courts, their legal disputes could threaten to overturn the delicate
balance which otherwise generally reigned between the two legal orders. Jewish law expressly
forbade forcibly suing a Jew in a non-Jewish court and this prohibition was taken seriously by
Moroccan judicial authorities. 43 Although I argue that the historical influence of this prohibition
has been misinterpreted, it nonetheless did have an impact when it came to intra-Jewish lawsuits
in non-Jewish courts.
Moroccan Jewish communities were no strangers to instances in which Jews sued other
Jews in a sharī‘a court against the wishes of their rabbinic leaders and in ways which directly
threatened the authority of Jewish courts. This is clear from a taqqanah passed in 1603, when the
rabbis of Fez prohibited Jews from suing their coreligionists in Islamic courts, unless they had
the permission of the beit din to do so. 44 The taqqanah explains that some Jews wanted to take
advantage of their personal ties with powerful Muslims by bringing cases to Islamic courts. 45
Rabbinic leaders were understandably opposed to this sort of behavior as it undermined both
communal solidarity and their own authority.
Nonetheless, deliberate disregard for Jewish legal authority rarely appears in nineteenth-
century documents. Such an absence might indicate that the practice was relatively rare or,
alternatively, that Jews did not preserve the documentation concerning this kind of strategy since
43
See especially the Babylonian Talmud, Gittin 98b and Rashi’s (Rabbi Shlomo Yitzḥaki, d. 1105) commentary on
Exodus 21:1, which paraphrases the Talmud. On this, see also Katz, Exclusiveness and Tolerance, 53.
44
Ankawa, Kerem Ḥemer, Number 77. An exception is made for those instances in which a Jew (referred to as a
gavra alma) refuses to submit to the authority of the beit din; in these cases, the beit din will give the Jewish
plaintiff permission to appear in a non-Jewish court. This taqqanah closely followed the ruling set out in Moses
Maimonides’ Mishneh Torah, Hilkhot Sanhedrin 26:7. In medieval Egypt, there was a special court (called the
“Jewish court for informers”) which determined which such cases could be sent to non-Jewish courts: on this, see
Mark R. Cohen, “Correspondence and Social Control in the Jewish Communities of the Islamic World: A Letter of
the Nagid Joshua Maimonides,” Jewish History 1, no. 2 (1986): 45-6.
45
The taqqanah discusses cases in which a Jew with a patron forces his coreligionist to go to the non-Jewish court.
The word used for patron is the Arabic‘ināya (see Shalom Bar-Asher, Sefer ha-Taqqanot: Yehudei Sefarad ve-
Portugal be-Maroko (1492-1753) (Jerusalem: Akademon, 1990), 131), implying that the patron in question is a
Muslim and is somehow involved in the Jew’s ability to force a decision in an Islamic court.
131