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

and the sharī‘a courts of Fez which they frequented. With this framework in place, the following
two chapters look closely at how Jews used sharī‘a courts and what this can tell us about their
legal strategies and, more broadly, their relations with Muslims and the Islamic society in which
they lived.
Jurisdictions and Sources
Before embarking on an analysis of how Jews used sharī‘a courts in Morocco, a brief
introduction to the nature of legal autonomy in the Islamic legal system is in order. Under
Islamic law, dhimmīs—non-Muslims living under Islamic rule—enjoyed a large degree of
judicial autonomy. 8 Dhimmīs had the right to enforce their own legal systems by establishing
communal courts; for Jews, this meant a beit din ideally composed of three men, usually persons
learned in Jewish law. 9 Dhimmī courts had jurisdiction over all intra-communal civil affairs,
although they were not competent to judge criminal cases. Despite this considerable legal
autonomy, Jews were required to appear in sharī‘a courts for a variety of cases. Because Islamic
law alone had jurisdiction over Muslims, any case involving Jews and Muslims had to be
adjudicated in a sharī‘a court. Islamic law also granted dhimmīs the right to bring intra-dhimmī
cases to sharī‘a courts in most cases, though the legal schools differed as to whether the qāḍī was
required to hear such cases or could choose to send them back to a Jewish judge. 10 (The only
8
On the status of non-Muslims in Islamic law, see Antoine Fattal, Le statut légal des non-Musulmans en pays
d’Islam (Beirut: Imprimerie Catholique, 1958), 344-48. On the Mālikī school in particular, see David Santillana,
Istituzioni di diritto musulmano malichita, con riguardo anche al sistema sciafiita, 2 vols. (Rome: Istituto per
l’oriente, 1925-38), 98-107.
9
It was permissible for a court to be composed of one expert and two non-experts, or even one expert alone,
although three experts were preferable (Assaf, Batei ha-din ve-sidreihem, 46-8).
10
The majority of jurists across the four schools of Islamic law rule that a judge should accept a case brought to him
by two dhimmīs (Libson, Jewish and Islamic Law, 81-2; see also Fattal, Statut légal, 353-8). Only in the Ḥanafī
school is the judge always compelled to accept an intra-dhimmī case and unable to return it to a dhimmī court
(Gideon Libson, “Otonomiyah shifutit ve-peniyyah le-‘arkaot mi-tzad bnei ḥasot ‘al pi meqorot muslamiyim betequfat
ha-geonim,” in Ha-Islam ve-‘olamot ha-shezurim bo ; qovetz ma’marim le-zekharah shel Ḥavah Latzarus-
46