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

Given the extent to which the Jewish and Islamic legal systems in Morocco overlapped,
we should not be surprised to learn that Muslims at times chose batei din over sharī‘a courts.
Nonetheless, the interests and presumptions of Jewish and Islamic history respectively have
largely obscured these kinds of overlaps in the legal history of Jews and Muslims. The model of
legal pluralism, however, easily accommodates these kinds of jurisdictional overlaps; for those
familiar with legally pluralist situations elsewhere, the fact of Muslims going to Jewish courts
might in fact seem quite ordinary. This perspective can be refreshing and helpful in changing the
way we think about law and religious minorities, not only in Morocco but throughout the Islamic
world.
Jewish Law in Sharī‘a Courts
Fundamentally, the phenomenon of Jews crossing jurisdictional boundaries arose from
the fact that the various legal orders at work in Morocco were at least to some extent mutually
exclusive. In particular, evidence drawn up in Hebrew according to Jewish law was technically
inadmissible in a sharī‘a court; for a Jew to present a qāḍī with a contract signed by sofrim was
not so different from presenting an informal note without any notarization whatsoever, since
Jewish legal documents did not carry any inherent legal weight. 84
Nonetheless, Morocco’s sharī‘a courts did not entirely reject Jewish law as invalid or
irrelevant to the practice of Islamic law. Many sharī‘a court documents indicate that qāḍīs were
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The best indications of how sharī‘a courts responded when faced with evidence that was not drawn up according
to Islamic legal standards comes from the consular courts records. When foreign subjects or protégés tried to
present evidence drawn up in consular chanceries or Jewish courts during disputes being adjudicated in a sharī‘a
courts, their non-Islamic legal documents were dismissed. The fact that the main evidence for the inadmissibility of
Jewish legal documents in Islamic courts comes from consular archives is almost certainly because most Moroccan
Jews would not have bothered to bring legal documents that had not been notarized by ‘udūl to sharī‘a courts,
knowing they would be rejected. Foreigners, on the other hand, were unfamiliar with Islamic legal procedure, and
might have done so out of ignorance. (I discuss the inadmissibility of non-Islamic legal documents in sharī‘a courts
at greater length in Chapter Eight, but see especially MAE Nantes, Tanger B 461, Emsellem v. Roffé, 1904.)
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