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

Islamic state in which they live. 20 This legal arrangement, with its roots in the first two centuries
of Islam, was still relevant in nineteenth-century Morocco. In some ways this is not surprising
given the traditional Islamic character of the Moroccan government. Yet already in 1856 the
Ottoman Empire had abolished the dhimma by declaring equality for Muslims and non-
Muslims. 21 The Moroccan state had done nothing of the sort, and Jews technically remained
dhimmīs even after French colonization in 1912. 22 The importance of the dhimma for the legal
claims of Moroccan Jews in the second half of the nineteenth century should not be taken for
granted as the norm—in fact, Morocco was one of the few places where appeals to the dhimma
of the sultan were still applicable and effective at this time.
The Pact of ‘Umar’s continued relevance for Jews’ status in nineteenth-century Morocco
is evident in an exchange between Mawlāy Ḥasan and a number of Islamic legal scholars in
Fez. 23 In 1883, the sultan wrote to the chief qāḍī in Fez and five other prominent jurists asking
their opinion on a new law passed by the Jews of Fez. 24 The Jews had decided to modify their
legal system; instead of having three rabbis preside as judges, they would have both rabbis and
20
Wehr, Dictionary of Modern Arabic, 312.
21
Benjamin Braude and Bernard Lewis, “Introduction,” in Christians and Jews in the Ottoman Empire: The
Functioning of a Plural Society, ed. Benjamin Braude and Bernard Lewis (New York: Holmes and Meier
Publishers, 1982), 30-31 and Carter V. Findley, “The Acid Test of Ottomanism: The Acceptance of Non-Muslims in
the Late Ottoman Bureacracy,” in Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society,
ed. Benjamin Braude and Bernard Lewis (New York: Holmes and Meier Publishers, 1982), 341-3. Equality of
Muslims and non-Muslims was discussed in the 1839 Gülhane Decree, but the change in non-Muslims’ status was
not finalized until 1856.
22
Although the dhimma was never technically abolished, the French did away with most of the disabilities
associated with dhimmī status.
23
DAR, Fez, Mawlāy Ḥasan to Muḥammad b. ‘Abd al-Raḥmān, 6 Rabī‘ II 1300; Aḥmad b. Muḥammad b. al-Ḥājj to
Mawlāy Ḥasan, 10 Jumādā I 1300. See also a transcription of this first letter addressed to Muḥammad Bargāsh in
Ibn Zaydān, Itḥāf a‘lām al-nās, v. 2, 234-5; idem, Al-‘Izz wa-’l-ṣawla, v. 2, 43-4; Ja‘far b. Idrīs al-Kattānī, Aḥkām
Ahl al-Dhimma (Amman: Dār al-Bayāriq, 2001), 47.
24
The other jurists addressed are: al-Ḥājj Muhammad Janūn, Ja‘far b. Idrīs al-Kattānī, Aḥmad b. al-Ḥājj, al-Ḥamīd
Banānī, and ‘Abdallāh al-Wadghīrī (?). Only three of the six jurists signed the response, penned by Aḥmad b.
Muḥammad b. al-Ḥājj (the other two signatories were Ja‘far b. Idrīs al-Kattānī and al-Ḥamīd Banānī). Since the
letter is a copy, however, it is possible that other signatures (including that of the qāḍī Muḥammad b. ‘Abd al-
Raḥmān) were omitted. Ja‘far b. Idrīs al-Kattānī offered another, far lengthier reply to this question in his book on
laws pertaining to dhimmīs, though there he did not quote the pact of ‘Umar and his reply does not seem to be
preserved in the Makhzan’s archives (idem, Aḥkām Ahl al-Dhimma, 47-67).
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