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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
Page 87 and 88:
The introduction of the “protecti
Page 89 and 90:
ule; the ‘udūl almost always too
Page 91 and 92:
documents would stand up as evidenc
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Empire. 49 A document in the Assarr
Page 95 and 96:
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
Page 103 and 104:
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-
Page 121 and 122:
in the Assarraf collection indicate
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(ittifāqīyan) and were testifying
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In another instance of oath avoidan
Page 127 and 128:
Sharī‘a courts provided a crucia
Page 129 and 130:
agreement notarized according to Is
Page 131 and 132:
ability and desire to move among di
Page 133 and 134:
‘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
Page 183 and 184:
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
Page 215 and 216:
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
Page 227 and 228:
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
Page 237 and 238:
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
Page 255 and 256:
Following this escalation of violen
Page 257 and 258:
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
Page 269 and 270:
Although at first these appeals mig
Page 271 and 272:
The Jews of Meknes appealed to the
Page 273 and 274:
In other instances, Makhzan officia
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about their own coreligionists. The
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Europeans—a sentiment that at oth
Page 279 and 280:
complain about their muḥtasib, em
Page 281 and 282:
Chapter Seven: Foreign Protection a
Page 283 and 284:
Perhaps most important, however, is
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of consular courts functioned throu
Page 287 and 288:
of Muslims from becoming protégés
Page 289 and 290:
cases between its own nationals or
Page 291 and 292:
of consular courts by specifying th
Page 293 and 294:
an important moment in the history
Page 295 and 296:
were required to notify their consu
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dealt with cases by means other tha
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
Page 309 and 310:
ecognize their contract since “th
Page 311 and 312:
of the individuals concerned. 31 Pr
Page 313 and 314:
concerning the incident, which they
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speculated that the reluctance of t
Page 317 and 318:
protection) of Yitzḥaq b. Nissim
Page 319 and 320:
cooperate with foreigners’ reques
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Dinar Ohana), an American protégé
Page 323 and 324:
Jews tried to ensure a fortuitous o
Page 325 and 326:
ordered Assayag to stop paying Zagu
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 and 334:
By subjecting the suit to Moroccan
Page 335 and 336:
sued Mas‘ūd al-Shayẓamī (Meso
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
Page 355 and 356:
wearing Muslim clothing and told hi
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
Page 385 and 386:
This sort of continuity in legal pr
Page 387 and 388:
intra-Jewish cases to these courts
Page 389 and 390:
Glossary of Arabic and Hebrew Terms
Page 391 and 392:
Ẓahīr: Royal decree (spelled “
Page 393 and 394:
United States: United States Nation
Page 395 and 396:
———. Kitāb al-istiqṣā li-
Page 397 and 398:
Becker, Jerónimo. España y Marrue
Page 399 and 400:
Chetrit, Joseph. Diglossie, hybrida
Page 401 and 402:
Ennaji, Mohammed. Expansion europé
Page 403 and 404:
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
Page 411 and 412:
———. “Forum Shopping Among
Page 413:
Cultural Dimensions, edited by Mich
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