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

courts to matters of personal status—a category alien to Islamic law as it had developed through
the early modern period—reflects a trend that had swept much of the Islamic world starting in
the nineteenth century. 8 Clearly, the jurisdiction of sharī‘a courts in pre-colonial Morocco was
far wider than family law, encompassing not only civil and commercial matters but even
criminal cases. The parallel restriction of the jurisdiction of batei din to matters of personal
status similarly curtailed the scope of these institutions. 9 While the French appeared to preserve
a system of existing sharī‘a courts and batei din, in fact their reforms attempted to radically
change the nature of these judicial institutions.
The colonial reforms also signaled a rupture in the relationship among the different legal
orders in Morocco. As we have seen throughout this dissertation, the lines demarcating
jurisdictions were never as clear as French observers imagined them to be. While batei din had
jurisdiction over intra-Jewish affairs, they also served the legal needs of Muslims in commercial
relations with Jews. And while sharī‘a courts were supposedly reserved for cases involving
Muslims, many Jews brought their intra-communal deeds and disputes before ‘udūl and qāḍīs
rather than dayyanim. In declaring that sharī‘a courts and batei din would henceforth only serve
the needs of Muslims and Jews respectively, the French broke with years of precedent.
Moreover, the colonial authorities’ attempts to instill rigid separations among
jurisdictions proved far from successful in reality. 10 Batei din overstepped the bounds of their
8
Oussama Arabi, “Orienting the Gaze: Marcel Morand and the Codification of le Droit Musulman Algérien,”
Journal of Islamic Studies 11, no. 1 (2000); Wael B. Hallaq, An Introduction to Islamic Law (Cambridge:
Cambridge University Press, 2009), 115, 118-26; Kenneth Cuno, “The Origins of Personal Status Law in Egypt:
Muhammad Qadri’s Code,” paper presented at the workshop Socio-legal Perspectives on the Passage to Modernity
in and beyond the Middle East (Ben Gurion University, June 2012).
9
Schroeter and Chetrit, “Emancipation and its Discontents,” 191, 194-5.
10
There are some indications in the secondary literature that the Protectorate’s jurisdictional boundaries were not as
rigid as they seemed. For instance, Chouraqui claimed that although theoretically Jews fell under the jurisdiction of
the rabbinic courts and the indigenous courts alone, in reality they could still be called before the sharī‘a court, such
as in cases concerning personal status or real estate involving a Jew and a Muslim (Chouraqui, Condition juridique,
129).
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