IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
epresent Jews from a larger variety of socio-economic backgrounds. Even when it comes to commercial matters, I do not suggest that only wealthy Jews used non-Jewish courts in the ways I describe. On the contrary, I believe that the patterns I observe largely held true for most Jews, regardless of their socio-economic status; wealthier Jews merely came into more frequent contact with non-Jewish courts because their commercial ventures necessitated doing so. Nonetheless, the legal sources do not offer a perfect cross-section of society or a truly comprehensive picture of the Jewish community. On the contrary, the individuals we will meet in the course of this dissertation come disproportionately from the upper and upper-middle classes. Throughout the dissertation I draw comparisons with the history of Jews in the Islamic world during the medieval period (largely based on the Cairo Geniza) and in the early modern Ottoman Empire. Many of my conclusions point to continuities across time and space. Contextualizing my observations about nineteenth-century Morocco in the longue durée points to the fact that much of what determined Jews’ experience was the fact of living in an Islamic society. This does not mean either that Islam was the same throughout the Mediterranean or that Islamic societies did not change over time. Rather, it points to the importance of an Islamic tradition with significant temporal and geographical continuity. 106 Nonetheless, there were important differences between the experiences of Jews in nineteenth-century Morocco and those of Jews in other parts of the Islamic world. While an exhaustive comparison is beyond the scope of this dissertation, one difference is particularly important for legal history: Jews in Morocco had an unprecedented degree of autonomy compared to that of either Jews in medieval Egypt or in the early modern Ottoman Empire. This 106 See, e.g., Talal Asad, The Idea of an Anthropology of Islam (Washington DC: Center for Contemporary Arab Studies, Georgetown University, 1986), 14-17; Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change (Princeton: Princeton University Press, 2002), 4-7. 36
is perhaps best attested by the fact that Moroccan Jews in some cities (such as Fez and Marrakesh) operated their own prisons. 107 The shaykh al-yahūd in these cities (who acted as the secular head of the Jewish community and was responsible for relations with the Muslim authorities) had the power to imprison Jews who broke the law. For instance, in a document in Judeo-Arabic from 1816, a group of Jews testified that they accepted Shmuel b. ‘Ayūsh as their shaykh, and that Shmuel would have the authority to “judge over great and small, and to imprison (yaḥkum fi-’l-kabīr wa-ṣaghīr wa-yusajjin).” 108 In many other contexts, including medieval Cairo and in the Ottoman Empire, Jewish leaders relied on Islamic authorities to imprison those they wanted punished. 109 Although far more research is required to fully understand how these Jewish prisons worked in Morocco, it seems safe to hazard a guess that their existence was due in large part to the generally high level of decentralization which characterized the Moroccan state before French colonization. Given the relatively greater degree of autonomy afforded to Jews in Morocco, one might expect that Moroccan Jews would turn to non-Jewish legal institutions less frequently than their coreligionists in other contexts. We have too little information to make any systematic 107 Avraham ben Mordekhai Ankawa, ed. Kerem Ḥemer: Taqqanot Ḥakhmei Qasṭilyah ve-Ṭuliṭulah (Jerusalem: Ha- Sifriyah ha-Sefaradit Benei Yisakhar, 2000), Number 53; John V. Crawford and Charles H. Allen, Morocco: Report to the Committee of the British and Foreign Anti-Slavery Society (London: British and Foreign Anti-Slavery Society, 1886), 21; Gerber, Jewish Society in Fez, 88; Gottreich, The Mellah of Marrakesh, 73. Few sources exist on these Jewish prisons; at this point, it is not clear whether they existed outside of Fez and Marrakesh or whether they existed for a specific period of time or were a feature of Morocco throughout the early modern period. 108 PD, 8 Kislev 5577. 109 Goitein, A Mediterranean Society, v. 2, 35; Rustow, Heresy and the Politics of Community, 73; Yaron Ben-Naeh, Jews in the Realm of the Sultans: Ottoman Jewish Society in the Seventeenth Century (Tübingen: Mohr Siebeck, 2008), 191. Although Ben-Naeh notes that there are mentions of prison cells which seem to have belonged to Jews, he concludes that in general Jewish leaders had to rely on the Muslim authorities to implement physical punishments, including imprisonment. See also the observations of a rabbi from Fez who visited the Ottoman Empire in the sixteenth century and noted that Jewish judges there had far less authority than in Morocco because they could not enforce their own punishments (Hacker, “Jewish Autonomy in the Ottoman Empire,” 170). Simḥa Assaf argues that a number of medieval Jewish communities had their own prisons, including in Spain and Poland (Simḥa Assaf, Ha-‘Onshin aḥarei ḥatimat ha-Talmud : Ḥomer le-toldot ha-mishpat ha-‘ivri (Jerusalem: Defus ha- Po‘el ha-Tza‘ir, 1922), 25-30). However, it is not always clear that the prisons discussed in the teshuvot and taqqanot on which Assaf draws were Jewish prisons; he does not entertain the possibility that Jews relied on non- Jewish authorities to enforce prison sentences. 37
- 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 and 36: We are left with two models of Jewi
- Page 37 and 38: Legal pluralism is an approach to u
- 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: Jewish communities were no less var
- 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%
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epresent Jews from a larger variety of socio-economic backgrounds. Even when it comes to<br />
commercial matters, I do not suggest that only wealthy Jews used non-Jewish courts in the ways<br />
I describe. On the contrary, I believe that the patterns I observe largely held true for most Jews,<br />
regardless of their socio-economic status; wealthier Jews merely came into more frequent contact<br />
with non-Jewish courts because their commercial ventures necessitated doing so. Nonetheless,<br />
the legal sources do not offer a perfect cross-section of society or a truly comprehensive picture<br />
of the Jewish community. On the contrary, the individuals we will meet in the course of this<br />
dissertation come disproportionately from the upper and upper-middle classes.<br />
Throughout the dissertation I draw comparisons with the history of Jews in the Islamic<br />
world during the medieval period (largely based on the Cairo Geniza) and in the early modern<br />
Ottoman Empire. Many of my conclusions point to continuities across time and space.<br />
Contextualizing my observations about nineteenth-century Morocco in the longue durée points to<br />
the fact that much of what determined Jews’ experience was the fact of living in an Islamic<br />
society. This does not mean either that Islam was the same throughout the Mediterranean or that<br />
Islamic societies did not change over time. Rather, it points to the importance of an Islamic<br />
tradition with significant temporal and geographical continuity. 106<br />
Nonetheless, there were important differences between the experiences of Jews in<br />
nineteenth-century Morocco and those of Jews in other parts of the Islamic world. While an<br />
exhaustive comparison is beyond the scope of this dissertation, one difference is particularly<br />
important for legal history: Jews in Morocco had an unprecedented degree of autonomy<br />
compared to that of either Jews in medieval Egypt or in the early modern Ottoman Empire. This<br />
106<br />
See, e.g., Talal Asad, The Idea of an Anthropology of Islam (Washington DC: Center for Contemporary Arab<br />
Studies, Georgetown University, 1986), 14-17; Muhammad Qasim Zaman, The Ulama in Contemporary Islam:<br />
Custodians of Change (<strong>Princeton</strong>: <strong>Princeton</strong> University Press, 2002), 4-7.<br />
36
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