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English consul generally, foreign subjects and protégés might also choose to avoid consular courts because the details of their case meant it was likely to be “spoilt” in a consular court. 125 This type of strategy also worked in the other direction; foreign subjects and protégés attempted to avoid sharī‘a and Makhzan courts when they felt they would get an unfavorable ruling in these institutions. 126 The case of Corcos v. Shedmi illustrates the kind of situation in which foreign subjects and protégés found it more advantageous to bring their cases before Moroccan judicial authorities. In 1867, Avraham Corcos, a Moroccan Jew and the American consul in Essaouira, Essaouira, 22 April 1884). The translation actually reads “For he has no judgment,” but in this context ḥukm is better translated as judiciousness (see Wehr, Dictionary of Modern Arabic, 196). Ḥukm could also be translated as authority, which would suggest that a reason to avoid the British consular court might have been that the consul lacked the authority to enforce his rulings; this, however, seems a less appropriate translation given the context. 125 See, e.g., MAE Nantes, Tanger A 138, Affaire Abraham Benchimol avec le gouvernement Français, 1833 (in this case, Benchimol, the interpreter at the French legation discussed above, sued the French government for fees owed to him; when he seemed unable to convince the French to pay him, he threatened to bring his case to the Makhzan); MAE Nantes, Tanger A 138, Affaires de M. Benaim de Marseille, 1842 (in this case, Moshe Benaim, a French subject, claimed debts owed to him by David Yitzḥaq Darmon, a Moroccan subject and a resident of Essaouira; Benaim at first indicated that he wants to settle the matter in a French consular court, but then threatened to bring the case to the local Makhzan authorities; although the case should have fallen under Makhzan jurisdiction, it seems that the French consul planned to hear the case); FO, 830/1, Grace to Hay, 27 December 1851 (concerning a case in which Damonte, a British protégé, refused a proposed extra-legal settlement to a case made by Grace, a British consul, and took the case to the local sharī‘a court instead); MAE Nantes, Tanger A 159, Affaire Joseph Suiry v. Menahem Nahon et Judah Benguigui, 1857 (this case was originally adjudicated in the French consular court, where the consul ruled in Suiry’s favor; Nahon and Benguigui decided to take the case to the local pasha, who ruled in their favor; finally, Suiry attempted to have the case re-tried in the French consulate—where, one assumes, he would have won again); USNA, Reg. 84, v. 13A, Muḥammad b. al-‘Arabī to J. Toel, 19 Ṣafar 1322 (concerning a case involving a Moroccan subject and a Muslim “mokhalet” (mukhāliṭ, partner) of the American protégé Shmuel Benharrosh, in which both sides appealed to the Makhzan’s representative in Tangier, the sharī‘a court, and the American consular court). 126 See: FO, 631/3, Carstensen to Hay, 29 March 1869 (this concerns the case of Aharon and Yosef Ben Addi, British protégés who were robbed outside the city of Safi; the Ben Addis did not want to submit the case to the sharī‘a court because the qāḍī was from Shedma, the area where the robbery occurred, and presumably would have ruled in favor of his tribesmen); DAR, Tetuan, 1130, al-Ḥājj al-Madanī al-Duyūrī to al-Ḥājj Muḥammad al-Madanī, 14 Jumādā II 1289 (in which the Moroccan subject ‘Abd al-Qādir al-Sha‘shū‘ tried to insist that some contested goods belonged to his partners who were protégés, and thus that the lawsuit against him had to be judged by the consular courts in Tangier; the Makhzan insisted that because al-Sha‘shū‘ was a Moroccan subject, the case should be judged by a sharī‘a court); MAE Nantes, Tanger B 459, Makhzan contre Ben Amar, 1908 (in this case, Ben Amar, a Muslim and a French protégé, attempted to avoid the Makhzan’s jurisdiction by having his case judged by the French consulate; this is of particular interest because it shows that Muslims were also sometimes eager to avoid sharī‘a and Makhzan courts when these proved less favorable to their case). 324
sued Mas‘ūd al-Shayẓamī (Mesod Shedmi), a Muslim Moroccan subject. 127 Corcos claimed that he “…paid into the hands of Seed Mesod Shedini [sic] the sum of Eight thousand five hundred French dollars to be exchanged for Spanish Doubloons, and that Seed Mesod after receiving the money refused to give up the doubloons.” 128 Naturally, al-Shayẓamī denied ever having received the 8,500 French dollars (undoubtedly francs) that Corcos claimed to have given him. 129 The jurisdiction of this case fell under British consular law, since al-Shayẓamī was a British protégé. 130 Nonetheless, Fred Carstensen, the British consul in Essaouira, went out of his way to protect his protégé from even facing Corcos in a trial. 131 Corcos responded thus: “Under these circumstances and seeing that I could not obtain justice at your hands, I have followed the only course which was open to me namely to prove my case before all the Moorish Authorities [probably meaning the Makhzan court] of this Town.” 132 Corcos even appealed to Muḥammad Bargāsh, the Moroccan minister of foreign affairs and the highest Makhzan authority in charge of matters involving foreign subjects and protégés. 133 He clearly made every effort to ensure that Makhzan officials, rather than the British consul, adjudicated his case. 134 127 See the correspondence about the case in USNA, reg. 84, v. 1, 14 June 1867 to 22 September 1868. See also DAR, Safi, 28690, al-Tayyib b. al-Malānī to Muḥammad Bargāsh, 22 Dhū al-Ḥijja 1284. Daniel Schroeter also discusses this case: Schroeter, Merchants of Essaouira, 178-80. 128 USNA, reg. 84, v. 1, Frederick Carstensen to Abraham Corcos, 14 June 1867. 129 “Seed Mesod declares that you must be mistaken, as he has not received from you the sum you mention, and has not even seen you or communicated with you for several weeks” (ibid.). 130 Al-Shayẓamī acquired British protection by working for the Englishman John al-Mālṭī after moving to Essaouira (DAR, Safi, 28690, al-Ṭayyib b. al-Malānī to Muḥammad Bargāsh, 22 Dhū al-Ḥijja 1284). 131 In particular, Carstensen seems to have arranged for al-Shayẓamī to sue Corcos’ chief witness before Corcos could bring his witness to testify in his favor (see USNA, reg. 84, v. 1, Corcos to Carstensen, 15 June 1867). Corcos finally had a hearing scheduled at the British consulate for 4 November 1867, although he did not attend this trial for unknown reasons (USNA, reg. 84, v. 1, Carstensen to Corcos, 28 and 29 November 1867). Carstensen did not actually rule in the trial until December, at which point he decided the case in favor of al-Shayẓamī (USNA, reg. 84, v. 1, McMath to Corcos, 15 December 1867). 132 Ibid. 133 DAR, Safi, 28690, al-Ṭayyib b. al-Malānī to Muḥammad Bargāsh, 22 Dhū al-Ḥijja 1284/ 16 April 1868. 134 Ultimately it was the American ambassador in Tangier who had Corcos’ money returned to him: USNA, reg. 84, v. 1, McMath to Corcos, 22 September 1868. 325
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IN THE COURTS OF THE NATIONS: JEWS,
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Abstract This dissertation examines
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Table of Contents Abstract………
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throughout the process was vital to
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and Arielle Rubenstein, Stephanie S
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Introduction This dissertation exam
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on the internal history of the Jewi
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cases they made up close to half of
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study of law in the Islamic world w
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of these institutions remain opaque
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and, for some individuals, appealin
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actors with agency and to understan
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many of those who espouse the neo-l
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In recent years, the neo-lachrymose
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alternative framework to that of au
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including courts—which were of pr
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Recently scholars working on the me
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We are left with two models of Jewi
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Legal pluralism is an approach to u
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orders. I also turn the focus from
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Nonetheless, the tendency of forum
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Legal pluralism does not explain wh
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Jewish communities were no less var
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is perhaps best attested by the fac
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To help remind readers that the thr
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abusive Makhzan officials, infringe
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Chapter One: Between Batei Din and
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went to batei din and sharī‘a co
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school relevant for our purposes is
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Jewish and Islamic legal systems re
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ehind, a large number were undoubte
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atei din generally, it does reflect
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Jews used batei din not only as not
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Jerusalem. 33 The collection consis
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(azraqu al-‘aynayn)—a trait for
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undoubtedly made much of their mone
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preventing members of the community
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‘udūl. 76 These ‘udūl, whose
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Eliyahu b. Ya'aqov Zohra bat Ya‘a
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and Muḥammad would return the mon
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Table 2.1 Types of Entries 2% 2% 2%
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allegation or deposition in a case
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court approximately once a week, ei
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The introduction of the “protecti
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ule; the ‘udūl almost always too
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documents would stand up as evidenc
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Empire. 49 A document in the Assarr
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legal procedure was relatively mino
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een optional as not all bills of de
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Qa‘da 1309 (June 12, 1892), two
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mostly meant extending credit on go
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Other release documents specify tha
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al-faqīh Aḥmad al-Filālī al-Ma
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Lease contracts, on the other hand,
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which was operated by Muslims durin
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Shalom’s knowledge of Islamic law
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elow). Although the majority of law
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weeks after the plaintiff filed the
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gathered twelve men who testified t
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whether the qāḍī accepted al-
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in the Assarraf collection indicate
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(ittifāqīyan) and were testifying
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In another instance of oath avoidan
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Sharī‘a courts provided a crucia
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agreement notarized according to Is
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ability and desire to move among di
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‘udūl. 14 Most real estate trans
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equire or benefit from adjudication
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Simultaneous Use of Jewish and Isla
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evidence from the nineteenth centur
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to sue other Jews in sharī‘a cou
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But what about intra-Jewish lawsuit
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ut for the most part this is a here
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the sum of three duoros per month.
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only in Jewish law. This happened i
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in the millāḥ of Marrakesh on Ap
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aware of Jewish law and sometimes t
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of a rabbi to determine the proper
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‘Aṭṭār, in order to find out
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Muslims’ jurisdictional boundary
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that they had successfully done so.
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the Moroccan legal system more broa
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translated as the territories under
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elatively scant work on the legal h
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law, even if they did not consisten
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abrupt end after his death, as the
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put it, “in all medieval Muslim s
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about its image in the eyes of fore
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an injustice or an act of oppressio
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In designing its new army, the Makh
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The Ministry itself, although in co
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Minister of Complaints, a man about
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It is not entirely clear whether th
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initial letters. 102 The convention
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whether the sultan simply failed to
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Chapter Five: Appeals to the Minist
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Jews and the Ministry of Complaints
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The nature of these sources prevent
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Causes for Complaint Most of the ap
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products (such as barley). 23 This,
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appears numerous times). 29 While t
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matter what their religious backgro
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when amounts are specified they ten
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cases which were ultimately settled
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Jews who had been robbed. 62 The su
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from July 28, 1892, a group of Jews
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nature of sharī‘a courts. 83 In
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legal proof of his claim. 91 It is
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the Jewish victims were compensated
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central government could only do so
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and Muslim was responsible for arra
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sometimes the Makhzan officials’
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A more formidable obstacle to settl
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The Jewish creditor, however, reque
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The practice of exaggerating the va
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official accused a Jew of falsifyin
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esolve disputes with their Jewish d
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property. 178 In this case, the Mak
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Chapter Six: Collective Appeals to
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frequency of Jews’ petitions acro
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The concentration of petitions duri
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“right”—as in, the rights to
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merchants serve as judges on a rota
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Makhzan officials at times evoked t
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The evidence of Jews’ appeals to
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governor). 46 The next winter the J
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along with a legal document contain
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Following this escalation of violen
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The governor of Debdou similarly pr
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custom and the sultan’s command.
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minister of foreign affairs, receiv
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Yet murder cases were not the only
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Moroccan legal system. On the one h
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In 1884 the Jews of Fez appealed to
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Although at first these appeals mig
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The Jews of Meknes appealed to the
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In other instances, Makhzan officia
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about their own coreligionists. The
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Europeans—a sentiment that at oth
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complain about their muḥtasib, em
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Chapter Seven: Foreign Protection a
Page 283 and 284: Perhaps most important, however, is
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Page 287 and 288: of Muslims from becoming protégés
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Page 299 and 300: In other instances, consuls wrote t
Page 301 and 302: qāḍī” attesting a debt owed t
Page 303 and 304: The following two chapters examine
Page 305 and 306: clarify when and why he had taken t
Page 307 and 308: Even scholars who argue against see
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Page 311 and 312: of the individuals concerned. 31 Pr
Page 313 and 314: concerning the incident, which they
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Page 317 and 318: protection) of Yitzḥaq b. Nissim
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Page 321 and 322: Dinar Ohana), an American protégé
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Page 327 and 328: efused. 100 Faced with this dead en
Page 329 and 330: claimed that Emsellem had no right
Page 331 and 332: number of foreign subjects and prot
Page 333: By subjecting the suit to Moroccan
Page 337 and 338: Foreign subjects and protégés wer
Page 339 and 340: confirmed that this meant the Jews
Page 341 and 342: AIU’s attention either through pe
Page 343 and 344: A competing narrative of Moroccan J
Page 345 and 346: non-Jewish Westerners alike, I argu
Page 347 and 348: international press. Demnat might s
Page 349 and 350: attribute the Makhzan’s efforts t
Page 351 and 352: The events in Demnat were not the o
Page 353 and 354: finally wrote to Muḥammad Bargās
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Page 357 and 358: of 1863. Four Jews were accused of
Page 359 and 360: made an honest mistake, the effect
Page 361 and 362: etracted his initial testimony clai
Page 363 and 364: the remaining two subjects. Only af
Page 365 and 366: organizations, and the foreign pres
Page 367 and 368: Marseillais, The Times, The Pall Ma
Page 369 and 370: coreligionists’ position. 112 Avn
Page 371 and 372: had been following the standard pra
Page 373 and 374: did not declare that Jews and Musli
Page 375 and 376: under the jurisdiction of Makhzan o
Page 377 and 378: tolerance. 142 Such a policy would
Page 379 and 380: concede to the American ambassador
Page 381 and 382: Epilogue On March 30, 1912, France
Page 383 and 384: courts to matters of personal statu
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This sort of continuity in legal pr
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intra-Jewish cases to these courts
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Glossary of Arabic and Hebrew Terms
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Ẓahīr: Royal decree (spelled “
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United States: United States Nation
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———. Kitāb al-istiqṣā li-
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Becker, Jerónimo. España y Marrue
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Chetrit, Joseph. Diglossie, hybrida
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Ennaji, Mohammed. Expansion europé
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Gotzmann, Andreas. “At Home in Ma
Page 405 and 406:
———. Les protégés : contrib
Page 407 and 408:
Marcus, Abraham. The Middle East on
Page 409 and 410:
Perron, M. Précis de jurisprudence
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———. “Forum Shopping Among
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Cultural Dimensions, edited by Mich
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