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of the sources of jurisprudence (uṣūl al-fiqh) during the formative years of Islamic law.
Nonetheless, custom played an important role in Islamic jurisprudence and by the early-modern
period was often recognized as a de facto source of law. 96 In early modern Morocco, custom and
judicial practice (‘amal) were especially central to the development of Mālikī jurisprudence. 97
This is relevant to understanding how Jewish law and legal documents fit into Islamic legal
practice because custom could be particular to communities, such as the customary laws of
guilds or merchants. 98 It seems that in this instance, the qāḍī treated Jewish law as a form of
customary law particular to a specific group. Scholars have yet to explore in detail whether non-
Muslim law was consistently considered a form of customary law in Islamic jurisprudence. 99
The evidence from the legal documents I have examined here suggests that this may be a clue to
understanding the ways in which Islamic judicial authorities approached Jewish law in Morocco.
I have yet to find instances in which a qāḍī actually relied on Jewish legal documents as
evidence in a sharī‘a court, although it is clear that Makhzan officials presiding over state courts
did at times rely on evidence drawn up according to Jewish law. For instance, in 1847 a Jew
named Ya‘aqov b. Halīl was accused of being in possession of contraband wax. 100 The umanā’
(customs officials) of Rabat/Salé had contacted the English consul, a Jewish protégé named Ibn
96
Gideon Libson, “On the Development of Custom as a Source of Law in Islamic Law: Al-rujūʿu ilā al-ʿurfi aḥadu
al-qawāʿidi al-khamsi allatī yatabannā ʿalayhā al-fiqhu,” Islamic Law and Society 4, no. 2 (1997): esp. 133-42. See
also Schacht, An Introduction to Islamic Law, Chapter 11; Gerber, Islamic Law and Culture, Chapter 6.
97
On custom and law in Morocco, see Berque, La méthode juridique maghrébine; Schacht, An Introduction to
Islamic Law, 61-2; ‘Umar b. ‘Abd al-Karīm Jīdī, al-‘Urf wa-'l-‘amal fī al-madhab al-Mālikī wa-mafhūmuhumā ladā
‘ulamā’ al-Maghrib (Rabat: Ṣundūq iḥyā’ al-turāth al-islāmī al-mushtarak bayna al-mamlaka al-Maghribīya wa-’l-
Imārāt al-‘Arabīya al-Muttaḥida, 1984).
98
See, e.g., idem, al-‘Urf wa-’l-‘amal, 99; Marcus, The Middle East on the Eve of Modernity, 104-5; Frank H.
Stewart, “‘Urf,” in Encyclopedia of Islam, ed. P. Bearman, et al. (Leiden: Brill, 2003), 888. This is derived from the
legal maxim al-ma‘rūfu ‘urfan ka-’l-mashrūṭi sharṭan (“what is known as customary is as binding as a condition in
a contract,” on which see, e.g., ‘Abd al-Wahhāb Khallāf, Maṣādir al-tashrī‘ al-Islāmī fīmā lā naṣṣa fīhi (Kuwait:
Dār al-qalam, 1972), 146-7). I am grateful to Professor Hossein Modarressi for his help on this subject.
99
In addition to the documents discussed above (PD, 2 Rajab 1272 and PD, 12 Jumādā II 1327), see JTS, box 2,
folder #7, 24 Dhū al-Ḥijja 1330 for an example of referring to Jewish law as ‘urf.
100
DAR, Rabat/Salé, 19147, umanā’ of Rabat/Salé to Muḥammad b. Idrīs, 15 Rabī‘ II 1263. On trade in wax (a
major export from Morocco), see Miège, Le Maroc et l’Europe, v. 2, 130-1, 532-3.
146