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

elatively scant work on the legal history of nineteenth-century Morocco has tended to echo this
view—that is, that Makhzan courts presided over all criminal and some commercial cases. 25
The evidence from the Makhzan archives, and especially the Ministry of Complaints
records, suggests that it would be a mistake to impose any strict division of jurisdiction between
sharī‘a courts and Makhzan courts. Rather, criminal cases such as theft and murder were dealt
with by both Makhzan officials and sharī‘a courts. Similarly, the sultan often sent cases of
debt—which earlier scholars agreed were largely under the purview of the qā’ids—to be settled
by a qāḍī. Some cases ended up first in one kind of court and then in another. 26 Although the
sources do not permit conclusive statements about the exact role played by Makhzan courts, it is
clear that the fuzziness separating Makhzan and qāḍī courts was even more pronounced than
scholars have indicated. Perhaps the best understanding we can reach of the state’s role in the
Moroccan legal system is that many types of cases, both civil and criminal, could be brought
before both sharī‘a and Makhzan courts. 27
marocaine à Rabat,” Archives Marocaines 7 (1906): 394). Rober-Raynaud similarly claimed that while the
Makhzan courts had jurisdiction over criminal affairs, individuals could always request to be judged in a sharī‘a
court—a request which could not be refused: Rober-Raynaud, “La justice indigène au Maroc,” Renseignements
coloniaux 35 (1925): 582.
25
André Cabanis, “La justice du chrâa et la justice makhzen,” in La justice au Maroc, ed. François-Paul Blanc and
et al (Toulouse: Presses Universitaires de Perpignan et Presse de l’Université des sciences sociales de Toulouse,
1998), 57.
26
See, e.g., FO, 174/221, 15 July 1849 (concerning a Jew named Abram Bensadon who was initially imprisoned by
the pasha, released, and then subsequently summoned by the qāḍī and sentenced to prison once again); DAR, Fez,
12 Rabī‘ II 1301 (a legal document which explains that the case at hand was originally brought before the pasha, and
then subsequently before a sharī‘a court).
27
The relationship between the Makhzan as a judicial authority and sharī‘a courts in some ways relates to the debate
in Moroccan historiography concerning the relationship among ‘ulamā’ (religious scholars) and the Makhzan. (See
especially Jacques Berque, Al-Yousi : problèmes de la culture marocaine au XVIIème siècle (Paris: Mouton, 1958);
Clifford Geertz, Islam Observed: Religious Development in Morocco and Indonesia (New Haven: Yale University
Press, 1968), 29-55; Henry Munson, Religion and Power in Morocco (New Haven: Yale University Press, 1993),
Chapter 1; Bazzaz, Forgotten Saints.) That debate, however, focuses mainly on ‘ulamā’ and the sultan as political
actors, whereas my interest here is in the Makhzan and ‘ulamā’ as legal actors—that is, as legal authorities in their
roles as judges and arbiters of appeal. Nonetheless, my work bears on the broader debate insomuch as it suggests a
heretofore largely ignored dimension of the relationship among Makhzan officials and the ‘ulamā’—that is, in their
respective roles as judicial authorities.
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