IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
These appearances in both Jewish and Islamic courts were actually quite ordinary for Ya‘aqov. The many hats he wore as a businessman, including merchant, money lender, and landlord, meant that he was in regular need of the services of legal institutions. These courts enabled him to draw up contracts according to the legal standards of Jewish and Islamic law. They also offered a forum where he could adjudicate his legal disputes—that is, where he could sue his business associates, should the need arise. All this might seem quite banal to the average reader. In fact, that is exactly what it should seem—ordinary, unexceptional, part of the everyday rhythm of Ya‘aqov’s life. One week in the beit din, another in the sharī‘a court, and undoubtedly some weeks in both. Yet most histories of Jews in Morocco (or in most parts of the Islamic world) would offer little insight into Ya‘aqov’s appearances in both batei din and sharī‘a courts. One might read about the existence of batei din, how they functioned, and the scope of their jurisdiction. 6 One might even read about the fact that Jews sometimes went to Islamic courts, though usually as an example of something the rabbis opposed. 7 But the ways in which Jewish and Islamic courts played a role in the daily lives of Jews in Morocco is a history that for the most part has yet to be written. This dissertation is concerned with these kinds of unexceptional aspects of life; Part One specifically looks at the roles of sharī‘a courts and, to a lesser extent, of batei din in Jews’ quotidian activities. Going to court in nineteenth-century Morocco was not quite the kind of experience we think of today—that is, an exceptional event that one avoids if possible. Moroccan courts did function in roles closer to those we might imagine for them based on today’s legal systems; Jews 6 These studies tend to be inwardly focused on the Jewish community, which is largely a reflection of their exclusive reliance on Jewish sources: see, e.g., Zafrani, Les juifs du Maroc, 112-17; Gerber, Jewish Society in Fez, 59-65; Deshen, The Mellah Society, 70-7; David Ovadyah, Kehilat Tzafaru, 5 vols. (Jerusalem: Makhon le-ḥeqer toldot qehilot Maroko, 1974-92), v. 3, 45-7. 7 See the discussion of historiography below. 44
went to batei din and sharī‘a courts to sue and to be sued, to accuse others of crimes and to defend themselves against accusations of criminality. Yet in addition to being forums for the adjudication of disputes, sharī‘a courts and batei din also provided the services of notary publics, that is, places where individuals went to notarize documents. Even this function is somewhat misleading if equated with present-day notary publics, which most people frequent only if someone (the government, a company, a court) requires that a document be officially notarized. Other than the expense, the act of going to a notary can often seem unnecessary since notarization rarely transforms a document in any significant way. However, notaries in nineteenth-century Morocco—as in pre-modern societies more generally—played a far more important role. In addition to making sure that documents would hold up as evidence in a court of law, notaries were also responsible for producing the documents in the first place. They held the knowledge of legal formulas (often contained in written formularies of sample documents) which ensured that a contract would be binding according to Jewish and Islamic law respectively. Not only was their signature powerful, but their ability to write the contracts in the first place was central to the way law—and business—worked in pre-colonial Morocco. This dissertation is concerned with recovering the history of Jews in non-Jewish courts; Part One looks mainly at sharī‘a courts and how Jews used them. In the present chapter, I lay the necessary groundwork for a detailed investigation into when, why, and how Jews frequented sharī‘a courts. I introduce the jurisdictional frameworks governing how Jews used Jewish and non-Jewish courts as well as the sources on which I draw to reconstruct the functioning of these legal institutions. I spend some time examining the ways Jews use batei din—not in order to offer a full account of the functioning of Jewish courts, but to properly contextualize Jews’ use of sharī‘a courts in terms of their other legal choices. Finally, I introduce the Assarraf family 45
- 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 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: Chapter One: Between Batei Din and
- 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
- Page 93 and 94: Empire. 49 A document in the Assarr
- Page 95 and 96: legal procedure was relatively mino
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- Page 99 and 100: Qa‘da 1309 (June 12, 1892), two
- Page 101 and 102: mostly meant extending credit on go
- Page 103 and 104: Other release documents specify tha
went to batei din and sharī‘a courts to sue and to be sued, to accuse others of crimes and to<br />
defend themselves against accusations of criminality. Yet in addition to being forums for the<br />
adjudication of disputes, sharī‘a courts and batei din also provided the services of notary publics,<br />
that is, places where individuals went to notarize documents. Even this function is somewhat<br />
misleading if equated with present-day notary publics, which most people frequent only if<br />
someone (the government, a company, a court) requires that a document be officially notarized.<br />
Other than the expense, the act of going to a notary can often seem unnecessary since<br />
notarization rarely transforms a document in any significant way. However, notaries in<br />
nineteenth-century Morocco—as in pre-modern societies more generally—played a far more<br />
important role. In addition to making sure that documents would hold up as evidence in a court<br />
of law, notaries were also responsible for producing the documents in the first place. They held<br />
the knowledge of legal formulas (often contained in written formularies of sample documents)<br />
which ensured that a contract would be binding according to Jewish and Islamic law<br />
respectively. Not only was their signature powerful, but their ability to write the contracts in the<br />
first place was central to the way law—and business—worked in pre-colonial Morocco.<br />
This dissertation is concerned with recovering the history of Jews in non-Jewish courts;<br />
Part One looks mainly at sharī‘a courts and how Jews used them. In the present chapter, I lay the<br />
necessary groundwork for a detailed investigation into when, why, and how Jews frequented<br />
sharī‘a courts. I introduce the jurisdictional frameworks governing how Jews used Jewish and<br />
non-Jewish courts as well as the sources on which I draw to reconstruct the functioning of these<br />
legal institutions. I spend some time examining the ways Jews use batei din—not in order to<br />
offer a full account of the functioning of Jewish courts, but to properly contextualize Jews’ use<br />
of sharī‘a courts in terms of their other legal choices. Finally, I introduce the Assarraf family<br />
45
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