IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
The concept of forum shopping—that is, “the practice of choosing the most favorable jurisdiction or court in which a claim may be heard”—is of particular relevance to this dissertation. 89 I argue that Moroccan Jews were able and willing to choose among different legal orders in which to register their legal deeds and resolve their legal disputes. As Ido Shahar has pointed out, our understanding of forum shopping in practice—as opposed to theory—remains fairly limited; there have been relatively few studies by anthropologists or historians that examine how legal consumers actually engaged in forum shopping. 90 Shahar notes that many studies of forum shopping by legal theorists are based on a model of rational choice, that is, the idea that legal actors choose whichever legal forum will best serve their rational (which usually implies economic) interests. This view of forum shopping has been particularly influential in the work of Timur Kuran, who argues that minorities in the Ottoman Empire bypassed their Muslim peers economically because they were better at forum shopping by virtue of their experience navigating among communal and Islamic courts. 91 Kuran’s model paints a picture of Ottoman Jews and Christians as carefully calculating their legal choices to maximize profits. There is certainly some truth to Kuran’s argument; undoubtedly Jews and Christians did at times pick legal forums based purely on financial considerations. Yet his model oversimplifies and thus misrepresents historical reality; Jews, Christians, and Muslims made legal choices for a variety of motives, including communal pressure, religious considerations, and their levels of comfort with different types of institutions. 89 “Forum shopping” in Bryan A. Garner, ed. Black’s Law Dictionary (St. Paul, MN: West, 2009). 90 Ido Shahar, “Forum Shopping Among Civil and Religious Courts: Maintenance Suits in Present-Day Jerusalem,” in Religion in Dispute (Halle, Germany2010), 1-4. 91 Timur Kuran, “The Economic Ascent of the Middle East’s Religious Minorities: The Role of Islamic Legal Pluralism,” The Journal of Legal Studies 33, no. 2 (2004); idem, The Long Divergence: How Islamic Law Held Back the Middle East (Princeton: Princeton University Press, 2011), Chapters 9-12. 30
Nonetheless, the tendency of forum shopping to veer towards rational choice theory does not mean that the concept is inherently flawed. Shahar proposes a different understanding of forum shopping: “Rather than being a free choice taken under conditions of full knowledge, clear priorities, and unlimited resources, forum shopping is bounded by partial information and uncertain priorities and results.” 92 As he explains, there were significant limits to legal consumers’ ability to determine which forum might prove most beneficial. Moreover, other considerations affect the decisions of legal consumers, such that forum shopping is also determined “by a different, broader kind of rationality that is morally and ideologically informed.” 93 Shahar’s critique of forum shopping also bears on models of society which put the individual—rather than communal allegiances such as religion or tribe—at the center of understanding people’s actions, including their legal choices. Such an individual-based model has been articulated for the Moroccan case by Lawrence Rosen. 94 This model is particularly important in studies of religious minorities in Islamic societies, since it allows scholars to shed the assumption that social bonds are mainly determined by communal structures. 95 Yet just as theories of forum shopping which are equated with rational self-interest fail to capture the ways in which individuals actually make legal decisions, an understanding of society which downplays the role of communal organizations, pressures, and interests fails to account for the full complexity of individuals’ social ties. Legal consumers’ decisions about which legal forum to visit when resulted partly from their place in a particular religious community (not to mention 92 Shahar, “Forum Shopping,” 20. 93 Ibid. 94 Lawrence Rosen, Bargaining for Reality: The Construction of Social Relations in a Muslim Community (Chicago: University of Chicago Press, 1984), esp. Chapter 3; idem, The Justice of Islam, 5-8. See also Henry Munson, “On the Irrelevance of the Segmentary Lineage Model in the Moroccan Rif,” American Anthropologist 91, no. 2 (1989). 95 See, e.g., Arietta Papaconstantinou, “Between Umma and Dhimma: The Christians of the Middle East under the Umayyads,” Annales islamologiques 42 (2008): 149-51; Simonsohn, A Common Justice, 8. 31
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The concept of forum shopping—that is, “the practice of choosing the most favorable<br />
jurisdiction or court in which a claim may be heard”—is of particular relevance to this<br />
dissertation. 89 I argue that Moroccan Jews were able and willing to choose among different legal<br />
orders in which to register their legal deeds and resolve their legal disputes. As Ido Shahar has<br />
pointed out, our understanding of forum shopping in practice—as opposed to theory—remains<br />
fairly limited; there have been relatively few studies by anthropologists or historians that<br />
examine how legal consumers actually engaged in forum shopping. 90 Shahar notes that many<br />
studies of forum shopping by legal theorists are based on a model of rational choice, that is, the<br />
idea that legal actors choose whichever legal forum will best serve their rational (which usually<br />
implies economic) interests. This view of forum shopping has been particularly influential in the<br />
work of Timur Kuran, who argues that minorities in the Ottoman Empire bypassed their Muslim<br />
peers economically because they were better at forum shopping by virtue of their experience<br />
navigating among communal and Islamic courts. 91 Kuran’s model paints a picture of Ottoman<br />
Jews and Christians as carefully calculating their legal choices to maximize profits. There is<br />
certainly some truth to Kuran’s argument; undoubtedly Jews and Christians did at times pick<br />
legal forums based purely on financial considerations. Yet his model oversimplifies and thus<br />
misrepresents historical reality; Jews, Christians, and Muslims made legal choices for a variety<br />
of motives, including communal pressure, religious considerations, and their levels of comfort<br />
with different types of institutions.<br />
89<br />
“Forum shopping” in Bryan A. Garner, ed. Black’s Law Dictionary (St. Paul, MN: West, 2009).<br />
90<br />
Ido Shahar, “Forum Shopping Among Civil and Religious Courts: Maintenance Suits in Present-Day Jerusalem,”<br />
in Religion in Dispute (Halle, Germany2010), 1-4.<br />
91<br />
Timur Kuran, “The Economic Ascent of the Middle East’s Religious Minorities: The Role of Islamic Legal<br />
Pluralism,” The Journal of Legal Studies 33, no. 2 (2004); idem, The Long Divergence: How Islamic Law Held Back<br />
the Middle East (<strong>Princeton</strong>: <strong>Princeton</strong> University Press, 2011), Chapters 9-12.<br />
30
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