IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
Islamic legal document at all, since according to Islamic law there was no such thing as a ḥazaqah. Yet this document not only recognized the existence of a ḥazaqah, but officially notarized the fact that the ḥazaqah remained in the hands of the Jewish seller. It was signed by two ‘udūl and a qāḍī, all in the presence of al-Razīnī, 89 suggesting that the qāḍī knew about the clause exempting the ḥazaqah from the sale. Were the qāḍī’s signature absent, one could argue that the ‘udūl had simply agreed to draw up a somewhat unorthodox document without full knowledge of what Islamic law would have to say about the matter. Presumably, however, the qāḍī was aware that Islamic law did not recognize the existence of something called a ḥazaqah and yet decided to notarize the document anyway. Sharī‘a courts also tacitly recognized and reinforced Jewish law in their reliance on rabbis as expert witnesses. 90 We have already seen this in the cases in which Jews who had arrived at inheritance agreements in a Jewish court notarized these agreements in a sharī‘a court as well. For instance, when Shalom Assarraf passed away, his three sons had ‘udūl draw up a document confirming the inheritance division. 91 A prominent dayyan, Vidal ha-Tzarfati, came and testified “that [Shalom’s] heirs are his three sons, the full brothers Ya‘aqov, Yehudah, and the bachelor Moshe—[and that Shalom] has no other heir according to their religion (fī millatihim).” 92 Ha-Tzarfati was described in this document as one of “the religious experts (asāqifa) of the Jews who know which Jews inherit and which do not according to their religion.” In this and in other such inheritance cases, the qāḍī and ‘udūl drew upon the expertise 89 This is a somewhat exceptional addition since most legal documents did not specify that either of the parties to the contract was present; perhaps it reflects the unusual nature of the document. 90 On expert witnesses in Islamic law, see Ron Shaham, The Expert Witness in Islamic Courts: Medecine and Crafts in the Service of Law (Chicago: University of Chicago Press, 2010), 27-98. 91 TC, File #3, 5 Ṣafar 1336. 92 Al-‘ārifīn bi-man yarithu min al-yahūdi mimman lā yarithu minhum fī millatihim. 144
of a rabbi to determine the proper division of inheritance according to Jewish law. 93 The purpose of the document was precisely to create a record according to Islamic law of what Jewish law had ruled in a particular case. While the qāḍī was not familiar with the relevant halakhah himself, he did know whom to summon to provide that information. In fact, rabbis served as expert witnesses in cases concerning a range of matters. In the summer of 1909, a rabbi was involved in the sale of real estate among Jews in Fez. 94 Shmuel b. Moshe Būṭbūl and his nephews Maymon and Shlomoh wanted to sell part of a house in the millāḥ to Benjamin b. Moshe b. Samḥūn, and had a bill of sale drawn up in a sharī‘a court. As part of the proceedings, “al-ḥazān Shlomoh b. al-ḥazān Moshe b. Danan came and confirmed that the sellers owned the property in question, and that [their ownership] was established in their [law] through what establishes ownership for the dhimmīs in their religion (millatihim) and according to their custom (‘urf).” 95 Again, this document—also signed by two ‘udūl and a qāḍī—drew on the expertise of a rabbi to confirm what was proper according to Jewish law, and then notarized this contract according to Islamic law. The issue at hand in this case was whether Shmuel, Maymūn and Shlomoh were in fact the owners of the property in question, and thus whether they had the right to sell it to Benjamin. Rather than ask for Islamic legal documentation concerning their ownership, the qāḍī instead summoned a rabbi to confirm that the three sellers were indeed the true owners according to Jewish law. A possible explanation for the recognition of Jewish law in Islamic legal documents stems from the place of custom in Islamic law. Custom (‘urf) was not formally considered one 93 For another instance of using a rabbi as an expert witness in an inheritance case, see JTS, Box 2, Folder #7, 24 Dhū al-Ḥijja 1330. 94 PD, 12 Jumādā II 1327. 95 Ḥaḍara al-ḥazān Shlūmū b. al-ḥazān Mūshī b. Danān wa-i‘tarafa li-l-mālikīna al-bā’i‘īni bi-’l-mulki al-madhkūri wa-annahu thābitun ladayhim bi-mā yuthbitu al-mulka li-ahli al-dhimmati fī millatihim wa-‘alā ḥasabi al-‘urfi aljārī ladayhim. 145
- Page 103 and 104: Other release documents specify tha
- Page 105 and 106: al-faqīh Aḥmad al-Filālī al-Ma
- Page 107 and 108: Lease contracts, on the other hand,
- Page 109 and 110: which was operated by Muslims durin
- Page 111 and 112: Shalom’s knowledge of Islamic law
- Page 113 and 114: elow). Although the majority of law
- Page 115 and 116: weeks after the plaintiff filed the
- Page 117 and 118: gathered twelve men who testified t
- Page 119 and 120: whether the qāḍī accepted al-
- Page 121 and 122: in the Assarraf collection indicate
- Page 123 and 124: (ittifāqīyan) and were testifying
- Page 125 and 126: In another instance of oath avoidan
- Page 127 and 128: Sharī‘a courts provided a crucia
- Page 129 and 130: agreement notarized according to Is
- Page 131 and 132: ability and desire to move among di
- Page 133 and 134: ‘udūl. 14 Most real estate trans
- Page 135 and 136: equire or benefit from adjudication
- Page 137 and 138: Simultaneous Use of Jewish and Isla
- Page 139 and 140: evidence from the nineteenth centur
- Page 141 and 142: to sue other Jews in sharī‘a cou
- Page 143 and 144: But what about intra-Jewish lawsuit
- Page 145 and 146: ut for the most part this is a here
- Page 147 and 148: the sum of three duoros per month.
- Page 149 and 150: only in Jewish law. This happened i
- Page 151 and 152: in the millāḥ of Marrakesh on Ap
- Page 153: aware of Jewish law and sometimes t
- Page 157 and 158: ‘Aṭṭār, in order to find out
- Page 159 and 160: Muslims’ jurisdictional boundary
- Page 161 and 162: that they had successfully done so.
- Page 163 and 164: the Moroccan legal system more broa
- Page 165 and 166: translated as the territories under
- Page 167 and 168: elatively scant work on the legal h
- Page 169 and 170: law, even if they did not consisten
- Page 171 and 172: abrupt end after his death, as the
- Page 173 and 174: put it, “in all medieval Muslim s
- Page 175 and 176: about its image in the eyes of fore
- Page 177 and 178: an injustice or an act of oppressio
- Page 179 and 180: In designing its new army, the Makh
- Page 181 and 182: The Ministry itself, although in co
- Page 183 and 184: Minister of Complaints, a man about
- Page 185 and 186: It is not entirely clear whether th
- Page 187 and 188: initial letters. 102 The convention
- Page 189 and 190: whether the sultan simply failed to
- Page 191 and 192: Chapter Five: Appeals to the Minist
- Page 193 and 194: Jews and the Ministry of Complaints
- Page 195 and 196: The nature of these sources prevent
- Page 197 and 198: Causes for Complaint Most of the ap
- Page 199 and 200: products (such as barley). 23 This,
- Page 201 and 202: appears numerous times). 29 While t
- Page 203 and 204: matter what their religious backgro
of a rabbi to determine the proper division of inheritance according to Jewish law. 93 The<br />
purpose of the document was precisely to create a record according to Islamic law of what<br />
Jewish law had ruled in a particular case. While the qāḍī was not familiar with the relevant<br />
halakhah himself, he did know whom to summon to provide that information.<br />
In fact, rabbis served as expert witnesses in cases concerning a range of matters. In the<br />
summer of 1909, a rabbi was involved in the sale of real estate among Jews in Fez. 94 Shmuel b.<br />
Moshe Būṭbūl and his nephews Maymon and Shlomoh wanted to sell part of a house in the<br />
millāḥ to Benjamin b. Moshe b. Samḥūn, and had a bill of sale drawn up in a sharī‘a court. As<br />
part of the proceedings, “al-ḥazān Shlomoh b. al-ḥazān Moshe b. Danan came and confirmed<br />
that the sellers owned the property in question, and that [their ownership] was established in their<br />
[law] through what establishes ownership for the dhimmīs in their religion (millatihim) and<br />
according to their custom (‘urf).” 95 Again, this document—also signed by two ‘udūl and a<br />
qāḍī—drew on the expertise of a rabbi to confirm what was proper according to Jewish law, and<br />
then notarized this contract according to Islamic law. The issue at hand in this case was whether<br />
Shmuel, Maymūn and Shlomoh were in fact the owners of the property in question, and thus<br />
whether they had the right to sell it to Benjamin. Rather than ask for Islamic legal<br />
documentation concerning their ownership, the qāḍī instead summoned a rabbi to confirm that<br />
the three sellers were indeed the true owners according to Jewish law.<br />
A possible explanation for the recognition of Jewish law in Islamic legal documents<br />
stems from the place of custom in Islamic law. Custom (‘urf) was not formally considered one<br />
93<br />
For another instance of using a rabbi as an expert witness in an inheritance case, see JTS, Box 2, Folder #7, 24<br />
Dhū al-Ḥijja 1330.<br />
94<br />
PD, 12 Jumādā II 1327.<br />
95<br />
Ḥaḍara al-ḥazān Shlūmū b. al-ḥazān Mūshī b. Danān wa-i‘tarafa li-l-mālikīna al-bā’i‘īni bi-’l-mulki al-madhkūri<br />
wa-annahu thābitun ladayhim bi-mā yuthbitu al-mulka li-ahli al-dhimmati fī millatihim wa-‘alā ḥasabi al-‘urfi aljārī<br />
ladayhim.<br />
145
Change language