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

which they are inextricably tied.” 16 Yet ultimately Rosen echoes Weber in arguing that Islamic
law does not depend on careful adherence to a doctrine and body of laws, emphasizing instead
the role of culture and custom. 17 Powers, on the other hand, argues that qādīs’ decisions were
bound by legal doctrine. 18 He disputes Rosen’s image of the Moroccan qāḍī drawing on his
personal knowledge of custom and local society and stresses the extent to which legal authorities
followed the internal logic of Islamic law as set forth in juridical literature.
Ultimately, however, both Rosen and Powers are primarily interested in how qāḍīs make
legal decisions. 19 Their approach tells us little about how sharī‘a courts functioned as
institutions or about the experience of the individuals who frequented those courts. Rosen’s
focus on judicial discretion was a choice, since as an ethnographer he could have asked different
kinds of questions during his time observing the qāḍī’s court in Sefrou. But for Powers’s study,
this focus is largely determined by his source base. Since archival records are not available for
the late medieval period, Powers had to rely exclusively on juridical literature. Yet even for the
early modern period, for which archival sources are available, the historiography of law in
Morocco has yet to navigate the archival turn which so transformed Ottoman legal history. 20
Without an examination of the documentation produced by courts, the operation and significance
16
Rosen, The Anthropology of Justice, 18-19.
17
Rosen understands the role of the qāḍī as putting individuals back into situations in which they can regulate their
own social relations, rather than applying a complex body of juridical literature. He argues that qādīs oversee a
judicial process determined by Islamic law; the content of that process, however, is supplied by local custom (ibid.,
67). See also idem, The Justice of Islam: Comparative Perspectives on Islamic Law and Society (New York: Oxford
University Press, 2000), 13, 22-33.
18
Powers, Law, Society, and Culture, esp. Chapter 1.
19
This is also true of Jacques Berque’s influential work on law: Jacques Berque, Les Nawâzil el muzâra‘a du Mi‘yâr
Al Wazzânī ; étude et traduction (Rabat: Editions Felix Moncho, 1940); idem, Essai sur la méthode juridique
maghrébine (Rabat: 1944).
20
This is demonstrated by three recent dissertations on the legal history of Morocco, all of which rely on judicial
literature rather than archival evidence: Etty Terem, “The New Mi‘yar of al-Mahdi al-Wazzani: Local Interpretation
of Family Life in Late Nineteenth-Century Fez” (Ph.D. Dissertation, Harvard University, 2007); Jocelyn N.
Hendrickson, “The Islamic Obligation to Emigrate: Al-Wansharīsī’s Asnā al-matājir Reconsidered” (Ph.D.
Dissertation, Emory University, 2009); Alan Verskin, “Early Islamic Legal Responses to Living under Christian
Rule: Reconquista-Era Development and 19th-Century Impact in the Maghrib” (Ph.D. Dissertation, Princeton
University, 2010).
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