IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
well aware of this power differential; when they thought their authority was threatened, they appealed to the Makhzan to bolster it (see Chapter Six). 74 Legal pluralism: A New Model A new model for understanding how Jewish courts existed within the context of non- Jewish legal institutions and the non-Jewish state is called for. This dissertation uses the framework of legal pluralism as an alternative to the debate on autonomy. Legal pluralism easily accommodates an approach to Moroccan Jewish legal institutions which sees them as one legal order among many. Employing legal pluralism offers a theoretical apparatus for understanding how and why Jews lived their legal lives well beyond the boundaries of Jewish law and Jewish courts—courts which themselves existed within a complex web of relationships binding them to non-Jewish courts and the Islamic state. Legal pluralism provides a framework within which to examine how Moroccan Jews navigated among all the judicial institutions available to them. This includes instances in which Jews followed the jurisdictional boundaries outlined by Islamic law—that is, going to Jewish courts for intra-Jewish cases and Islamic courts for inter-religious cases—and those in which Jews engaged in “forum shopping” by choosing Islamic courts for matters concerning only Jews. This is particularly important in light of the fact that many studies of Jews in Ottoman sharī‘a courts focus on their voluntary use of Islamic legal institutions for intra-Jewish cases while ignoring the ways in which Jews used Islamic courts for matters concerning Muslims. 75 74 Nor is this delicate balance among Jewish legal institutions, the state, and individual legal actors unique to Morocco; work by scholars like Libson and Simonsohn demonstrates that the degree of legal independence alone is not sufficient to account for the nature and functioning of Jewish courts. 75 This is especially true of Al-Qattan, “Dhimmis in the Muslim Court” and Wittmann, “Before Qadi and Vizier.” 26
Legal pluralism is an approach to understanding the law which argues that legal systems are never (or very rarely) completely unified and centralized. 76 Rather, legal pluralism asserts that multiple legal orders exist within a given society’s overarching legal system. These multiple (or plural) legal orders exist alongside, and to some extent overlap with, one another. Legal pluralism counters the assumptions of legal centralism, which understands law as emanating solely from the state and which dominated legal theory until at least the 1970s. Scholars have pointed out a number of weaknesses with legal pluralism as a theoretical framework. Perhaps the strongest challenge is that if legal pluralism is everywhere—since according to scholars who adopt legal pluralism as a framework, all societies are legally pluralist to some degree—the concept loses much of its effectiveness except as a counterweight to the now generally abandoned view of legal centralism. 77 One proposed solution has been to identify societies with stronger or weaker degrees of legal pluralism. The initial understanding of strong vs. weak legal pluralism, proposed by John Griffiths, identifies weak legal pluralism as characteristic of those societies in which the state mandates different legal orders for different sectors of the population. 78 Strong legal pluralism, on the other hand, occurs when the state does not control the various legal orders within a given society and when a single population can draw on more than one of these available legal orders. 79 Griffiths (and many others) conclude that 76 The most oft-cited articulation of legal pluralism is John Griffiths, “What is Legal Pluralism,” Journal of Legal Pluralism 24 (1986). Legal pluralism was first proposed by legal anthropologists to describe law in colonial situations, though it has since been expanded to relate to all kinds of societies (see Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001), 115-16). 77 On this problem see idem, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sidney Law Review 30 (2008): 375. As Avi Rubin puts it, seeing legal pluralism everywhere makes it a “fuzzy” concept: Rubin, Ottoman Nizamiye Courts, 60. 78 Griffiths, “What is Legal Pluralism,” 5-8. Griffiths considers weak (or “juristic”) legal pluralism to be a sub-set of legal centralism. 79 Ibid., 5, 8. 27
- Page 1 and 2: IN THE COURTS OF THE NATIONS: JEWS,
- Page 3 and 4: Abstract This dissertation examines
- Page 5 and 6: Table of Contents Abstract………
- Page 7 and 8: throughout the process was vital to
- Page 9 and 10: and Arielle Rubenstein, Stephanie S
- Page 11 and 12: Introduction This dissertation exam
- Page 13 and 14: on the internal history of the Jewi
- Page 15 and 16: cases they made up close to half of
- Page 17 and 18: study of law in the Islamic world w
- Page 19 and 20: of these institutions remain opaque
- Page 21 and 22: and, for some individuals, appealin
- Page 23 and 24: actors with agency and to understan
- Page 25 and 26: many of those who espouse the neo-l
- Page 27 and 28: In recent years, the neo-lachrymose
- Page 29 and 30: alternative framework to that of au
- Page 31 and 32: including courts—which were of pr
- Page 33 and 34: Recently scholars working on the me
- Page 35: We are left with two models of Jewi
- Page 39 and 40: orders. I also turn the focus from
- Page 41 and 42: Nonetheless, the tendency of forum
- Page 43 and 44: Legal pluralism does not explain wh
- Page 45 and 46: Jewish communities were no less var
- Page 47 and 48: is perhaps best attested by the fac
- Page 49 and 50: To help remind readers that the thr
- Page 51 and 52: abusive Makhzan officials, infringe
- Page 53 and 54: Chapter One: Between Batei Din and
- Page 55 and 56: went to batei din and sharī‘a co
- Page 57 and 58: school relevant for our purposes is
- Page 59 and 60: Jewish and Islamic legal systems re
- Page 61 and 62: ehind, a large number were undoubte
- Page 63 and 64: atei din generally, it does reflect
- Page 65 and 66: Jews used batei din not only as not
- Page 67 and 68: Jerusalem. 33 The collection consis
- Page 69 and 70: (azraqu al-‘aynayn)—a trait for
- Page 71 and 72: undoubtedly made much of their mone
- Page 73 and 74: preventing members of the community
- Page 75 and 76: ‘udūl. 76 These ‘udūl, whose
- Page 77 and 78: Eliyahu b. Ya'aqov Zohra bat Ya‘a
- Page 79 and 80: and Muḥammad would return the mon
- Page 81 and 82: Table 2.1 Types of Entries 2% 2% 2%
- Page 83 and 84: allegation or deposition in a case
- Page 85 and 86: court approximately once a week, ei
well aware of this power differential; when they thought their authority was threatened, they<br />
appealed to the Makhzan to bolster it (see Chapter Six). 74<br />
Legal pluralism: A New Model<br />
A new model for understanding how Jewish courts existed within the context of non-<br />
Jewish legal institutions and the non-Jewish state is called for. This dissertation uses the<br />
framework of legal pluralism as an alternative to the debate on autonomy. Legal pluralism easily<br />
accommodates an approach to Moroccan Jewish legal institutions which sees them as one legal<br />
order among many. Employing legal pluralism offers a theoretical apparatus for understanding<br />
how and why Jews lived their legal lives well beyond the boundaries of Jewish law and Jewish<br />
courts—courts which themselves existed within a complex web of relationships binding them to<br />
non-Jewish courts and the Islamic state. Legal pluralism provides a framework within which to<br />
examine how Moroccan Jews navigated among all the judicial institutions available to them.<br />
This includes instances in which Jews followed the jurisdictional boundaries outlined by Islamic<br />
law—that is, going to Jewish courts for intra-Jewish cases and Islamic courts for inter-religious<br />
cases—and those in which Jews engaged in “forum shopping” by choosing Islamic courts for<br />
matters concerning only Jews. This is particularly important in light of the fact that many studies<br />
of Jews in Ottoman sharī‘a courts focus on their voluntary use of Islamic legal institutions for<br />
intra-Jewish cases while ignoring the ways in which Jews used Islamic courts for matters<br />
concerning Muslims. 75<br />
74 Nor is this delicate balance among Jewish legal institutions, the state, and individual legal actors unique to<br />
Morocco; work by scholars like Libson and Simonsohn demonstrates that the degree of legal independence alone is<br />
not sufficient to account for the nature and functioning of Jewish courts.<br />
75 This is especially true of Al-Qattan, “Dhimmis in the Muslim Court” and Wittmann, “Before Qadi and Vizier.”<br />
26
Change language