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

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).
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