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

“The supreme judicial authority was, at least theoretically, vested in the Sultan himself….What
part each [judicial official] played in fact cannot easily be established. Not until the reforms of
the nineteenth century was any attempt made to introduce a clear division of powers, unknown to
traditional Islam, between the executive and the judiciary.” 21 Some scholars have found that
Ottoman kadıs (qāḍīs) normally had sole jurisdiction (or nearly so) over even criminal cases,
though it seems that there was a fair amount of variation according to place and time. 22
A similarly loose division of jurisdictions between sharī‘a courts and Makhzan courts
existed in Morocco. A. Péretié, who wrote one of most detailed studies of the Moroccan judicial
system before 1912, contrasted the strict division between the judicial and administrative
branches in Europe with the “state of anarchy” which reigned in Morocco. 23 Contemporary
European observers tended to conclude that the Makhzan tribunals were responsible for criminal
cases and some commercial matters, mostly consisting of unpaid debts. 24 Subsequently, the
21
Heyd, Studies in Old Ottoman Criminal Law, 208. Heyd notes that theoretically, Islamic law required that
administrative authorities only punish and judge when cases were clear cut—otherwise they were supposed to
submit the case to a qāḍī. However, this was rarely observed in practice (211). On nineteenth century judicial
reforms, see Rudolph Peters, “Islamic and Secular Criminal Justice in Nineteenth-Century Egypt: The Role and
Function of the Qadi,” Islamic Law and Society 4, no. 1 (1997); Rubin, Ottoman Nizamiye Courts.
22
Jennings notes that military governors seemingly had little involvement in judicial proceedings in seventeenthcentury
Kayseri: Jennings, “Kadi, Court, and Legal Procedure,” 162-64. He also observes that in many places
during the seventeenth century, the kadıs were relatively independent from the rest of the state and that the sultan
avoided interfering in the judgments of kadı courts (idem, “Limitations of the Judicial Powers of the Kadi,” 152-3,
65). Michael Hickok observes that governors and kadıs had complementary and to some extent overlapping
jurisdiction over murder cases in eighteenth-century Bosnia, but that there was a trend to increase the scope of the
kadı’s jurisdiction: Michael Hickok, “Homicide in Ottoman Bosnia,” in The Ottoman Balkans, ed. Frederick F.
Anscombe (Princeton: Markus Wiener Publishers, 2006), 40, 44. The jurisdictions of the governor and the kadı in
early modern Salonica were similarly blurred: Ginio, “Criminal Justice in Ottoman Salonica,” 200. In eighteenthcentury
Egypt, the pasha’s diwān functioned as a court whose jurisdiction overlapped significantly with that of the
local sharī‘a courts: Baldwin, “Islamic Law in an Ottoman context,” 39-44. Even more interesting is the fact that
the Egyptian pasha’s diwān applied sharī‘a and followed its rules of procedure and evidence (ibid., 44).
23
A. Péretié, “L’organisation judiciaire au Maroc,” Revue du monde musulman 13, no. 3 (1911): 510.
24
Maeterlinck, “Les institutions juridiques au Maroc,” 477: Péretié, “L’organisation judiciaire au Maroc,” 516, 24.
European observers in the sixteenth century drew similar conclusions: see Fernando Rodríguez Mediano, “Justice,
crime et châtiment au Maroc au 16e siècle,” Annales. Histoire, Sciences Sociales 51, no. 3 (1996): 616. Aubin
wrote that the Makhzan official was responsible for “all matters that do not enter the province of the religious law”
(Aubin, Morocco of To-Day, 216). Louis Mercier is an exception in noting that some criminal cases were judged by
qāḍīs: “La competence du qāḍī, en tant que juge, est des plus étendues ; toutefois, il ne juge, en matière de simple
police et en matière criminelle, que les causes que le qāïd veut bien lui confier” (Louis Mercier, “L’administration
156