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

Jews who had been robbed. 62 The sultan had ordered the case to be judged by a sharī‘a court,
but the qāḍī decided that the case fell under the Makhzan’s jurisdiction and sent the matter back
to Mawlāy ‘Uthmān. Mawlāy Ḥasan insisted that the case be settled by the qāḍī and ordered that
it be submitted to a sharī‘a court once again. This suggests that the norm was for Makhzan
officials to handle theft cases, and that the sultan’s command to judge this matter in a sharī‘a
court was exceptional.
It is tempting to explain the paucity of theft cases referred to sharī‘a courts as related to
the tendency of Islamic judicial systems to assign criminal cases to administrative officials. 63 As
discussed in the previous chapter, Moroccan qā’ids and pashas held courts which were at least
partially responsible for criminal matters, including theft. 64 Yet murder cases were often
remanded to a sharī‘a court for resolution. I suspect that the need to determine the amount of
blood money to be payed to a murder victim helps explain why murder cases were often dealt
with by a qāḍī. Theft cases, on the other hand, did not generally carry any punishment beyond
returning the stolen goods or compensating the victims for their value. The punishment for theft
prescribed by sharī‘a—the ḥadd punishment of cutting off the right hand—was not normally
applied, and thus the qāḍī’s intervention was unnecessary.
Those debt and murder cases which prompted requests for settlement in a sharī‘a court
tended to be complex, hence the need for a qāḍī’s judgment. 65 For instance, in the case recorded
62
DAR, Marrakesh, Mawlāy Ḥasan to Mawlāy ‘Uthmān, 28 Jumādā II 1293.
63
The conceptual basis for the state’s administration of criminal law is often referred to as siyāsa or siyāsa shar‘īya:
see C. E. Bosworth, I. R. Netton, and Frank E. Vogel, “Siyāsa,” in Encyclopedia of Islam, ed. P. Bearman, et al.
(Leiden: Brill, 1993). On judicial organization in Tunisia under the Hafsids and the Husaynids, see Brunschvig,
“Justice religieuse et justice laïque dans la Tunisie,” 28, 34-46. On the Ottoman Empire generally, see Heyd,
Studies in Old Ottoman Criminal Law, 209-20.
64
See, for instance, Maeterlinck, “Les institutions juridiques au Maroc,” 477-8 ; Péretié, “L’organisation judiciaire
au Maroc,” 523-6 ; Cabanis, “La justice du chrâa et la justice makhzen,” 56-8.
65
There are, however, many cases in which it is difficult to tell why a case was sent to a sharī‘a court: see BH, K
157, p. 56, 12 Dhū al-Qa‘da 1306; p.146, 27 Jumādā I 1307; BH, K 171, p. 52, 9 Ramaḍān 1307; p. 66, 24 Ramaḍān
1307; BH, K 174, p. 52, 30 Jumādā I 1308; p. 99, 12 Ramaḍān 1308; p. 114, 5 Shawwāl 1308; BH, K 181, p. 83, 24
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