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

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

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state as a legal arbiter, I pay particular attention to how the Makhzan relied on sharī‘a courts to resolve certain kinds of disputes. Finally, in my study of the functioning of consular courts, I argue that diplomatic officials adapted to and even drew on Islamic legal practices in their administration of consular courts. While my specific conclusions are not necessarily applicable to other parts of the Islamic Mediterranean, my methodology is relevant to understanding the complex nature of law in Islamic societies more generally. Beyond tolerance and persecution In addition to offering a new approach to the history of law in the Islamic world, I use legal history as a particularly fruitful lens onto the daily lives of Jews and the ways they were integrated into the Moroccan society in which they lived. By “integrated,” I do not mean to say that Jews were always well treated by Muslims. On the contrary, the legal history of Jews in nineteenth-century Morocco points to many instances of discrimination. Rather, I mean that Jews were able and willing to use Islamic legal institutions more or less in the same ways that their Muslim counterparts used them. In fact, Jews often turned to Islamic legal venues in order to address instances of anti-Jewish bias. Jews’ regular use of Islamic courts integrated them into the Moroccan legal system, and it was an important ingredient in the glue which bound them to the broader non-Jewish society. In looking at how Jews’ experiences in Moroccan legal institutions can inform us about their integration into Moroccan society, I seek to move away from the dominant paradigms shaping how historians have viewed Jews living under Islamic rule. Rather than attempting to answer whether or not Jews were well treated, I seek to shift the focus back to Jews as legal 12

actors with agency and to understand the ways in which they navigated amongst the various legal orders available to them. The history of Jews in the Islamic world is often told in one of two ways, reflecting two ends of the historiographical spectrum that stretches between the poles of tolerance and persecution. 28 The first generation of historians to engage in the scientific study of Jewish history (members of the Wissenschaft des Judentums school) invented what Mark Cohen has coined the “myth of an interfaith utopia.” 29 These scholars focused on medieval Spain and were particularly interested in culture and literature as evidence of Jews’ successful assimilation into the broader Islamic society in which they lived—a picture which reflected their own hopes of assimilating into nineteenth-century German society. 30 In the twentieth century scholars further developed this approach to the history of Jews in Islamic Spain and beyond; the term “Convivencia” came to epitomize a view in which Jews flourished under the relative tolerance of their Muslim rulers and Jews and Muslims forged close social, intellectual, and cultural bonds. 31 28 The following is heavily indebted to the ideas first articulated in Mark R. Cohen, “Islam and the Jews: Myth, Counter-myth, and History,” Jerusalem Quarterly 38 (1986), and later reformulated in idem, Under Crescent and Cross: The Jews in the Middle Ages (Princeton, N.J.: Princeton University Press, 1994), Chapter 1. For other helpful historiographical discussions, see Jonathan Ray, “Beyond Tolerance and Persecution: Reassessing Our Approach to Medieval ‘Convivencia,’” Jewish Social Studies 11, no. 2 (2005); Yaron Tsur, “Israeli Historiography and the Ethnic Problem,” in Making Israel, ed. Benny Morris (Ann Arbor, MI: The University of Michigan Press, 2007); Daniel J. Schroeter, “From Sephardi to Oriental: The ‘Decline’ Theory of Jewish Civilization in the Middle East and North Africa,” in The Jewish Contribution to Civilization: Reassessing an Idea, ed. Jeremy Cohen and Richard I. Cohen (Oxford: The Littman Library of Jewish Civilization, 2008). 29 Cohen, Under Crescent and Cross, 3-5. 30 See especially Heinrich Graetz, History of the Jews, 5 vols. (Philadelphia: The Jewish Publication Society of America, 1949), esp. v. 3, 53-4, 234-6. 31 This term was originally used in an historical context by Américo Castro in 1948: Américo Castro, España en su historia: cristianos, moros y judíos (Buenos Aires: Editorial Losada, 1948). (On this term, see Ray, “Beyond Tolerance and Persecution,” 1-3.) For more recent examples, see, e.g., Eliyahu Ashtor, The Jews of Moslem Spain, vol. 2 (Philadelphia: The Jewish Publication Society of America, 1973); Maria Rosa Menocal, The Ornament of the World: How Muslims, Jews, and Christians Created a Culture of Tolerance in Medieval Spain (Boston: Little, Brown, 2002). Haim Zafrani portrayed the situation of Jews in Morocco as a continuation of the Golden Age of Spanish Jewry and its idealized view of Jewish-Muslim relations: see esp. Haim Zafrani, Juifs d’Andalousie et du Maghreb (Paris: Maisonneuve et Larose, 1996). 13

actors with agency and to understand the ways in which they navigated amongst the various legal<br />

orders available to them.<br />

The history of Jews in the Islamic world is often told in one of two ways, reflecting two<br />

ends of the historiographical spectrum that stretches between the poles of tolerance and<br />

persecution. 28 The first generation of historians to engage in the scientific study of Jewish<br />

history (members of the Wissenschaft des Judentums school) invented what Mark Cohen has<br />

coined the “myth of an interfaith utopia.” 29 These scholars focused on medieval Spain and were<br />

particularly interested in culture and literature as evidence of Jews’ successful assimilation into<br />

the broader Islamic society in which they lived—a picture which reflected their own hopes of<br />

assimilating into nineteenth-century German society. 30 In the twentieth century scholars further<br />

developed this approach to the history of Jews in Islamic Spain and beyond; the term<br />

“Convivencia” came to epitomize a view in which Jews flourished under the relative tolerance of<br />

their Muslim rulers and Jews and Muslims forged close social, intellectual, and cultural bonds. 31<br />

28<br />

The following is heavily indebted to the ideas first articulated in Mark R. Cohen, “Islam and the Jews: Myth,<br />

Counter-myth, and History,” Jerusalem Quarterly 38 (1986), and later reformulated in idem, Under Crescent and<br />

Cross: The Jews in the Middle Ages (<strong>Princeton</strong>, N.J.: <strong>Princeton</strong> University Press, 1994), Chapter 1. For other<br />

helpful historiographical discussions, see Jonathan Ray, “Beyond Tolerance and Persecution: Reassessing Our<br />

Approach to Medieval ‘Convivencia,’” Jewish Social Studies 11, no. 2 (2005); Yaron Tsur, “Israeli Historiography<br />

and the Ethnic Problem,” in Making Israel, ed. Benny Morris (Ann Arbor, MI: The University of Michigan Press,<br />

2007); Daniel J. Schroeter, “From Sephardi to Oriental: The ‘Decline’ Theory of Jewish Civilization in the Middle<br />

East and North Africa,” in The Jewish Contribution to Civilization: Reassessing an Idea, ed. Jeremy Cohen and<br />

Richard I. Cohen (Oxford: The Littman Library of Jewish Civilization, 2008).<br />

29<br />

Cohen, Under Crescent and Cross, 3-5.<br />

30<br />

See especially Heinrich Graetz, History of the Jews, 5 vols. (Philadelphia: The Jewish Publication Society of<br />

America, 1949), esp. v. 3, 53-4, 234-6.<br />

31<br />

This term was originally used in an historical context by Américo Castro in 1948: Américo Castro, España en su<br />

historia: cristianos, moros y judíos (Buenos Aires: Editorial Losada, 1948). (On this term, see Ray, “Beyond<br />

Tolerance and Persecution,” 1-3.) For more recent examples, see, e.g., Eliyahu Ashtor, The Jews of Moslem Spain,<br />

vol. 2 (Philadelphia: The Jewish Publication Society of America, 1973); Maria Rosa Menocal, The Ornament of the<br />

World: How Muslims, Jews, and Christians Created a Culture of Tolerance in Medieval Spain (Boston: Little,<br />

Brown, 2002). Haim Zafrani portrayed the situation of Jews in Morocco as a continuation of the Golden Age of<br />

Spanish Jewry and its idealized view of Jewish-Muslim relations: see esp. Haim Zafrani, Juifs d’Andalousie et du<br />

Maghreb (Paris: Maisonneuve et Larose, 1996).<br />

13

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