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

Islamic law meant that most governments supplemented the justice of the qāḍī with that of a
local administrative official. 13 In the early modern Ottoman Empire, for instance, governors
exercised judicial functions which varied according to time and place. 14 The Makhzan similarly
had a network of courts administrated by local officials which in many ways paralleled the courts
of Ottoman administrative officials. In Fez, for instance, the pasha’s tribunal (called a maḥakma
in colloquial Arabic) was situated in Dār Bū ‘Alī, a house in one of Fez’s more prestigious
quarters. 15 These courts did not produce any written records of their judgments. 16 In some
Berber areas compilations of customary law were written down starting in the nineteenth century
and acted as guidelines for local councils whose judicial roles functioned alongside sharī‘a courts
at the local level. 17 The legal strategies of Jews in these regions deserve further study, but the
evidence I found for Jews’ legal appeals to the state comes predominantly from cities where such
customary codes were not in force.
It is tempting to link the geographic extent of these Makhzan courts with the older
conception of the divide between bilād al-Makhzan and bilād al-sība, which can be loosely
13
On extra-sharī‘a courts in Tunisia, first under the Hafsids and then under the Beys, see Robert Brunschvig,
“Justice religieuse et justice laïque dans la Tunisie des Deys et des Beys: jusqu’au milieu du XIXe siècle,” Studia
Islamica 23 (1965). On other parts of the Ottoman empire, see Heyd, Studies in Old Ottoman Criminal Law,
especially 208-20; Marcus, The Middle East on the Eve of Modernity, 107-8; Michael Ursinus, Governance
Administration (Şikayet) in an Ottoman Province: The Kaymakam of Rumelia’s ‘Record Book of Complaints’ of
1781-1783 (London: RoutledgeCurzon, 2005), 5-7.
14
There remain many questions about the precise judicial functions of Ottoman governors; nonetheless, it is clear
that they had some sort of judicial authority. See, e.g., Eyal Ginio, “The Administration of Criminal Justice in
Ottoman Selānik (Salonica) during the Eighteenth Century,” Turcica 30 (1998); Baldwin, “Islamic Law in an
Ottoman context,” Chapter 1.
15
Le Tourneau, Fès avant le protectorat, 212. Other personnel working in the pasha’s court included the khalīfa
(the pasha’s assistant, or “adjoint”), as well as a number of “mokhzanis” (soldiers) who executed the pasha’s orders
and were paid directly by the plaintiffs.
16
This was also true of early modern Ottoman administrators who exercised judicial functions: Marcus, The Middle
East on the Eve of Modernity, 114.
17
E. Margot, “Organisation actuelle de la justice à Figuig,” Bulletin trimestriel de la Société de Géographie et
d’Archéologie de la Province d’Oran 29 (1909). Margot notes that the jamā‘a, or the communal council which
exercised many of the functions of a qā’id, was responsible for all criminal cases, while the qāḍī ruled in civil
matters (495). On the interplay of customary and Islamic law in Berber areas, see also Berque, Ulémas, fondateurs,
insurgés, 195-6.
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