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

We are left with two models of Jewish legal autonomy—the Jewish “state beyond the
state” and a picture of Jewish leaders lacking in any real legal authority. We can immediately
dismiss the second model as inapplicable to the Moroccan context, where the batei din were
vibrant legal institutions to which Jews turned on a regular basis (discussed in Chapter One).
This model is similarly inappropriate for the case of medieval Egypt, whence the Geniza
preserves thousands of legal documents produced by Jewish courts which clearly had some
measure of authority. 72 In fact, I suspect this model is inapplicable for most, if not all, of the
history of Jews in the Islamic world. Yet regardless of their accuracy, both historiographical
models boil down to an assessment of the degree of Jews’ legal independence. That is, they
answer the question “how independent was the Jewish legal system” either by asserting that it
was largely independent or that its functioning was mainly determined by the non-Jewish state.
The complexity of the relationship between the Jewish legal system in Morocco and the
Makhzan defies a simple categorization of nearly total or nearly absent independence. On the
one hand, Jews in Morocco ran their own courts and had a large degree of authority over internal
Jewish affairs. On the other hand, Jews always had the option of resorting to non-Jewish legal
authorities, either by appealing cases to sharī‘a courts, to the Makhzan, or—for those Jews with
foreign protection or nationality—to consular courts. Similarly, Jewish legal institutions
ultimately derived their authority from the state. 73 Jewish communal leaders in Morocco were
72
See, e.g., Goitein, A Mediterranean Society, v. 2, 311-45.
73
See Libson, Jewish and Islamic Law, 45, 103. Jacob Katz makes a similar point concerning Jewish communities
in early modern Europe: “For all that it was based on powerful elements within the Jewish consciousness and ethic,
the authority of the communal leaders would have been impossible without government backing and enforcement of
compliance” (Katz, Tradition and Crisis, 77).
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