IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
they were being mistreated by various Makhzan officials. 104 In particular, the muḥtasib was confiscating their goods without justifying his actions through legal proof (mūjib)—either Islamic legal proof (shar‘ī) or proof according to “natural” law (ṭib‘ī, the exact meaning of which is unclear). 105 The petitioners objected to his actions, arguing that confiscating goods in the absence of any legal proof was against Islamic law. 106 Jews appealed to the Makhzan when they felt that their local sharī‘a and Makzhan courts were not functioning properly in part because these institutions were central to Jews’ lives. These petitions show not only that Jews were able to appeal to the Makhzan when their access to Islamic legal institutions was threatened, but also that non-Muslims were willing to weigh in on the functioning of Islamic law. Violations of Jewish Legal Authority Jews not only protested when Islamic legal institutions malfunctioned, but also when their own legal system was put at risk—usually by a Makhzan official who had overstepped his jurisdiction or otherwise interfered in Jews’ self-government. As discussed in Chapters One and Three, Islamic law guaranteed Jews the right to judge intra-Jewish affairs according to Jewish law. Jews deprived of this privilege petitioned the Makhzan when they felt their rights to legal autonomy were being threatened. 104 DAR, Yahūd, 19415, Jews of unspecified city to Mawlāy ‘Abd al-Raḥmān, Dhū al-Ḥijja 1262. 105 Perhaps by “natural” proof the petitioners meant proof that complied with the demands of common sense, though it is difficult to tell since this is not a term that occurs often in the Makhzan archives. 106 See also DAR, Yahūd, 23088, Mawlāy ‘Abd al-Raḥmān to Aḥmad al-Mu‘ṭī, 27 Rabī‘ I 1261. In 1845 Mawlāy ‘Abd al-Raḥmān responded to the complaint that the qā’id of Casablanca had forced the Jew Hārūn to give him 481 riyals without any legal proof (mūjib) that Harūn actually owed this money. The sultan ordered al-Mu‘ṭī, qā’id of Casablanca, to assemble the ‘udūl and the ‘umanā’ and have them testify about the case, and to see that justice was done. Although this complaint was submitted by an individual Jew (from Fez), I include it here since it concerns the same sort of abuse about which Jews normally petitioned collectively. 258
Although at first these appeals might seem directly at odds with those concerning the malfunctioning of Islamic legal institutions, these two kinds of petition were in fact opposite sides of the same coin. The position of Jews under Islamic law meant that they were constantly negotiating between Jewish and Islamic legal orders. On the one hand, it was in Jews’ interest to ensure that they had access to sharī‘a courts—not only for their commercial transactions with Muslims which required legal ratification, but also for those intra-Jewish cases which they chose to adjudicate before a qāḍī. On the other hand, it was also in Jews’ interest to maintain their own judicial system, both in order to bolster the authority of their communal leaders and to ensure their ability to conduct their lives according to Jewish law. The fact that Jews held the Makhzan responsible for the maintenance of Jewish judicial autonomy further confirms the extent to which Jewish legal institutions relied on the state to bolster their authority. The guarantee of Jewish judicial autonomy did not stop at permitting Jews the free exercise of their legal system. Rather, the Makhzan played an active role in ensuring the authority of Jewish law for intra-Jewish matters. In one case, the threat to Jewish judicial autonomy came from within the Jewish community. In 1896, the Jews of Fez appealed to Muḥammad al-Ṭūris (Torres), the minister of foreign affairs, about the jurisdiction of a case being considered in the Makhzan court. 107 The lawsuit concerned a house located in the millāḥ of Fez; the property originally belonged to a Jew named Ya‘qūb al-Ṣabbāgh. Over forty years earlier Ṣabbāgh had left Fez for Algeria and become a French citizen. 108 Before leaving Fez, Ṣabbāgh appointed an agent to sell his property in his absence, which the agent dutifully did. When Ṣabbāgh returned to Fez four decades later 107 DAR, Yahūd, 36412, Jews of Fez to Muḥammad al-Ṭūris, 5 Dhū al-Qa‘da 1313. 108 In fact, Ṣabbāgh was described as an “Algerian,” but due to the Crémieux Decree of 1870, as a Jew he was automatically a French citizen. 259
- Page 217 and 218: the Jewish victims were compensated
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- Page 299 and 300: In other instances, consuls wrote t
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Although at first these appeals might seem directly at odds with those concerning the<br />
malfunctioning of Islamic legal institutions, these two kinds of petition were in fact opposite<br />
sides of the same coin. The position of Jews under Islamic law meant that they were constantly<br />
negotiating between Jewish and Islamic legal orders. On the one hand, it was in Jews’ interest to<br />
ensure that they had access to sharī‘a courts—not only for their commercial transactions with<br />
Muslims which required legal ratification, but also for those intra-Jewish cases which they chose<br />
to adjudicate before a qāḍī. On the other hand, it was also in Jews’ interest to maintain their own<br />
judicial system, both in order to bolster the authority of their communal leaders and to ensure<br />
their ability to conduct their lives according to Jewish law. The fact that Jews held the Makhzan<br />
responsible for the maintenance of Jewish judicial autonomy further confirms the extent to which<br />
Jewish legal institutions relied on the state to bolster their authority. The guarantee of Jewish<br />
judicial autonomy did not stop at permitting Jews the free exercise of their legal system. Rather,<br />
the Makhzan played an active role in ensuring the authority of Jewish law for intra-Jewish<br />
matters.<br />
In one case, the threat to Jewish judicial autonomy came from within the Jewish<br />
community. In 1896, the Jews of Fez appealed to Muḥammad al-Ṭūris (Torres), the minister of<br />
foreign affairs, about the jurisdiction of a case being considered in the Makhzan court. 107 The<br />
lawsuit concerned a house located in the millāḥ of Fez; the property originally belonged to a Jew<br />
named Ya‘qūb al-Ṣabbāgh. Over forty years earlier Ṣabbāgh had left Fez for Algeria and<br />
become a French citizen. 108 Before leaving Fez, Ṣabbāgh appointed an agent to sell his property<br />
in his absence, which the agent dutifully did. When Ṣabbāgh returned to Fez four decades later<br />
107<br />
DAR, Yahūd, 36412, Jews of Fez to Muḥammad al-Ṭūris, 5 Dhū al-Qa‘da 1313.<br />
108<br />
In fact, Ṣabbāgh was described as an “Algerian,” but due to the Crémieux Decree of 1870, as a Jew he was<br />
automatically a French citizen.<br />
259
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