IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
acquired foreign protection or nationality. On the other hand, because individuals in Morocco were constantly moving among Islamic and consular courts, the nature of law as applied in consular courts became influenced by Islamic legal practice. This legal convergence between Islamic and consular courts stood in tension with the continued reality that the two legal systems often offered different outcomes, and thus opportunities to engage in forum shopping. The fact that Jews moved fluidly among Jewish, Islamic, and consular courts goes against the prevailing wisdom about Jews’ legal choices in nineteenth-century Morocco. By the late nineteenth century, many European Jewish activists and diplomatic officials argued that foreign protection was necessary to prevent Moroccan Jews from being subject to the inherent bias of Islamic courts. 11 Subsequently, many historians adopted this line of reasoning and argued that Jews wanted to escape a discriminatory legal system for one which treated them as equals. 12 These scholars see the progression from inequality to equality before the law as partly culminating under the French Protectorate, when Jews became exclusively subject either to Jewish courts or non-religious (and thus theoretically non-discriminatory) “native” courts. 13 11 See, for instance, Alliance Israélite Universelle, L’Alliance Israélite Universelle; publié à l’occasion du 25ème anniversaire de sa fondation célébré le 1er mars 1885 (Paris: Alliance Israélite Universelle, 1885); Bonsal, Morocco as it Is, 325-6; Narcisse Leven, Cinquante ans d’histoire ; l’Alliance Israélite Universelle, 1860-1910 (Paris: F. Alcan, 1911), 237-60. On this, see also André Chouraqui, L’Alliance Israélite Universelle et la renaissance juive contemporaine, 1860-1960 ; cent ans d’histoire (Paris: Presses universitaires de France, 1965), 111-13: Kenbib, Juifs et musulmans, 214-18. There were, of course, some Europeans who professed a different view of Jews’ legal choices; see, for instance, Maeterlinck, “Les institutions juridiques au Maroc,” 482-3, in which Maeterlinck argued that since consuls were biased in favor of their own subjects and protégés, it was natural that Jews preferred foreign protection to remaining Moroccan subjects: “On comprend combien les Juifs et indigènes ambitionnent d’être soustraits à l’aimable justice indigène pour ne plus dépendre que de celle d’un consul qui étend sur eux sa protection,” (483). 12 For a general evaluation along these lines, see Stillman, The Jews of Arab Lands in Modern Times, 4-5: Michel Abitbol, “Jews and Arabs in Colonial North Africa,” in Israel and Ishmael: Studies in Muslim-Jewish Relations, ed. Tudor Parfitt (Richmond, Surrey: Curzon Press, 2000), 130, 132. On Morocco and Jews’ search for protection, see Laskier, The Alliance Israélite Universelle, 20: Pennell, Morocco since 1830, 83: Norman Stillman, “The Moroccan Jewish Experience: A Revisionist View,” in The Legacy of Islamic Antisemitism: From Sacred Texts to Solemn History, ed. Andrew G. Bostom (Amherst, NY: Prometheus Books, 2008), 553; Bensoussan, Juifs en pays arabes, 55. 13 On the judicial status of Jews under the Protectorate, see Chouraqui, Condition juridique, especially 121-2. See also David G. Littman, “Mission to Morocco,” in The Century of Moses Montefiore, ed. Sonia Lipman and V. D. 296
Even scholars who argue against seeing consular protection as Jews’ savior from the bias of Islamic law have refrained from discussing how consular courts operated as legal institutions, focusing instead on consular protection as a stalking horse for European imperialism. 14 In what follows I offer the first study of the quotidian functioning of consular courts and the ways in which Jews used them on a day to day basis. I argue that Islamic legal norms and institutions were central to the ways in which consular courts administered the law. I further show that Jewish protégés did not flee the Islamic legal system for the supposed equality and impartiality of Western courts. On the contrary, Islamic (and Jewish) legal institutions continued to be relevant to the legal strategies of Jewish protégés. On the one hand, Islamic courts had jurisdiction over a large portion of legal affairs in Morocco, even for foreigners or those with foreign protection. On the other, many Jewish (and Muslim) protégés engaged in forum shopping, choosing Islamic courts over consular courts when doing so proved advantageous to their interests. 15 Moroccan Legal Institutions and Consular Courts Although increasing numbers of Moroccans gained access to consular courts through the acquisition of foreign nationality or protection, this did not mean that they abruptly stopped using Islamic (and Jewish) legal institutions. On the contrary, Islamic law remained the default Lipman (Oxford: The Littman Library of Jewish Civilization, Oxford University Press, 1985), 202. It is important to clarify that many Jews were not content with their legal status under the Protectorate and wanted France to grant them French citizenship so that they would be exempt from Moroccan courts altogether (see, for instance, Laskier, The Alliance Israélite Universelle, 163-71 and Daniel J. Schroeter and Joseph Chetrit, “Emancipation and its Discontents: Jews at the Formative Period of Colonial Rule in Morocco,” Jewish Social Studies n.s. 13, no. 1 (2006): 178-79). Nonetheless, the European (largely French) view is that Jews were considered equal to Muslims under the Protectorate. 14 On this critique, see Clancy-Smith, Mediterraneans, 200. For an example of this historiography, see Kenbib, “Structures traditionelles,” and idem, Les protégés. 15 For a similar argument about forum shopping in nineteenth-century Morocco, see C. R. Pennell, “Law on a Wild Frontier: Moroccans in the Spanish Courts in Melilla in the Nineteenth Century,” Journal of North African Studies 7, no. 3 (2002). 297
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acquired foreign protection or nationality. On the other hand, because individuals in Morocco<br />
were constantly moving among Islamic and consular courts, the nature of law as applied in<br />
consular courts became influenced by Islamic legal practice. This legal convergence between<br />
Islamic and consular courts stood in tension with the continued reality that the two legal systems<br />
often offered different outcomes, and thus opportunities to engage in forum shopping.<br />
The fact that Jews moved fluidly among Jewish, Islamic, and consular courts goes against<br />
the prevailing wisdom about Jews’ legal choices in nineteenth-century Morocco. By the late<br />
nineteenth century, many European Jewish activists and diplomatic officials argued that foreign<br />
protection was necessary to prevent Moroccan Jews from being subject to the inherent bias of<br />
Islamic courts. 11 Subsequently, many historians adopted this line of reasoning and argued that<br />
Jews wanted to escape a discriminatory legal system for one which treated them as equals. 12<br />
These scholars see the progression from inequality to equality before the law as partly<br />
culminating under the French Protectorate, when Jews became exclusively subject either to<br />
Jewish courts or non-religious (and thus theoretically non-discriminatory) “native” courts. 13<br />
11<br />
See, for instance, Alliance Israélite Universelle, L’Alliance Israélite Universelle; publié à l’occasion du 25ème<br />
anniversaire de sa fondation célébré le 1er mars 1885 (Paris: Alliance Israélite Universelle, 1885); Bonsal, Morocco<br />
as it Is, 325-6; Narcisse Leven, Cinquante ans d’histoire ; l’Alliance Israélite Universelle, 1860-1910 (Paris: F.<br />
Alcan, 1911), 237-60. On this, see also André Chouraqui, L’Alliance Israélite Universelle et la renaissance juive<br />
contemporaine, 1860-1960 ; cent ans d’histoire (Paris: Presses universitaires de France, 1965), 111-13: Kenbib,<br />
Juifs et musulmans, 214-18. There were, of course, some Europeans who professed a different view of Jews’ legal<br />
choices; see, for instance, Maeterlinck, “Les institutions juridiques au Maroc,” 482-3, in which Maeterlinck argued<br />
that since consuls were biased in favor of their own subjects and protégés, it was natural that Jews preferred foreign<br />
protection to remaining Moroccan subjects: “On comprend combien les Juifs et indigènes ambitionnent d’être<br />
soustraits à l’aimable justice indigène pour ne plus dépendre que de celle d’un consul qui étend sur eux sa<br />
protection,” (483).<br />
12<br />
For a general evaluation along these lines, see Stillman, The Jews of Arab Lands in Modern Times, 4-5: Michel<br />
Abitbol, “Jews and Arabs in Colonial North Africa,” in Israel and Ishmael: Studies in Muslim-Jewish Relations, ed.<br />
Tudor Parfitt (Richmond, Surrey: Curzon Press, 2000), 130, 132. On Morocco and Jews’ search for protection, see<br />
Laskier, The Alliance Israélite Universelle, 20: Pennell, Morocco since 1830, 83: Norman Stillman, “The Moroccan<br />
Jewish Experience: A Revisionist View,” in The Legacy of Islamic Antisemitism: From Sacred Texts to Solemn<br />
History, ed. Andrew G. Bostom (Amherst, NY: Prometheus Books, 2008), 553; Bensoussan, Juifs en pays arabes,<br />
55.<br />
13<br />
On the judicial status of Jews under the Protectorate, see Chouraqui, Condition juridique, especially 121-2. See<br />
also David G. Littman, “Mission to Morocco,” in The Century of Moses Montefiore, ed. Sonia Lipman and V. D.<br />
296