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

efused. 100 Faced with this dead end, Kohen argued that the sharī‘a court procedure had been
corrupted:
Concerning our refusal to appear in a sharī‘a court, it is impermissible for a sensible man
to claim that a plaintiff must accept, and even regularize by his presence, a procedure
which forbids him the use of witnesses recognized as necessary [to the case]. Of course,
we respect Islamic law, but on the condition that it is applied in its entirety and without
any impure additions. 101
Kohen and his lawyer called into question the legitimacy of Pariente’s legal documents and
requested permission to examine the two ‘udūl who had signed the milkīya. The French consular
officials also tried to ensure that the qāḍī would permit the examination of the ‘udūl; Saint René
Taillandier, the French ambassador, cited a discussion in the Mukhtaṣar of Khalīl b. Isḥāq (d.
776/1374)—a standard reference work of Islamic law—concerning the permissibility of
conducting a special interrogation of ‘udūl when there is confusion about a case. 102 He tried to
convince the qāḍī that the case of Kohen v. Pariente was such an instance of confusion. 103
Pariente, on the other hand, was eager to keep the case in a sharī‘a court, undoubtedly
because he knew his milkīya gave him a distinct advantage over Kohen. In October, 1905,
Pariente objected to a suggestion that the case be appealed in a consular court: “…he has made it
impossible for me to reappear before this tribunal and…it would be a real denial of justice for the
100
The pasha refused Kohen’s request because, according to the qāḍī, Pariente had already produced proof that he
owned the property in question (Abensur to White, 14 July 1905).
101
Daniel Saurin (Kohen’s lawyer) to Saint René Taillandier, 24 July 1905.
102
See the note (probably written by Saint René Taillandier himself) dated 15 August 1905. It is possible that Saint
René Taillandier had in mind a passage from Perron’s translation of the Mukhtaṣar which discusses situations in
which one is obligated to question the ‘udūl (see M. Perron, Précis de jurisprudence musulmane; ou, Principes de
législation musulmane civile et religieuse selon le rite malékite, par Khalil ibn-Ishak, 6 vols. (Paris: Imprimerie
Nationale, 1848-52), v. 5, 203). Perron’s translation draws from a number of commentaries, including those of
Muḥammad al-Kharashī (d. 1689), ‘Abd al-Bākī al-Zurqānī (d. 1688), and Ibrāhīm al-Shibrakhītī (d. 1694)—all of
whom lived in Egypt (see ibid., v. 1, xxii-xxiii).
103
Ultimately, however, Saint René Taillandier was unable to interrogate the ‘udūl because one was missing. He
attempted to have the qāḍī rule concerning whether it was permitted to interrogate one of the ‘udūl in the event that
the other was missing, but the qāḍī refused to give an opinion on this matter.
317