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

school relevant for our purposes is the Mālikī school, since in the nineteenth century all
Moroccan Muslims were Mālikīs.) If a Mālikī qāḍī accepted an intra-dhimmī case, he was
required to adjudicate according to the precepts of Islamic law. 11
The batei din and sharī‘a courts whose functioning I examine in this section dealt
primarily with civil cases and only on occasion with criminal cases. Batei din technically had
jurisdiction only over civil matters. Although sharī‘a courts in Morocco did sometimes
adjudicate criminal affairs, and certainly played an important role in the resolution of criminal
cases, the vast majority of records from sharī‘a courts concerning Jews deal only with civil
cases. 12 I discuss criminal cases in greater depth in Part Two.
Yafeh (Jerusalem: Makhon Ben Tzvi, 2002), 385-6). Mālikī jurists differ as to whether a judge has to accept intradhimmī
cases. Fattal notes that Mālikī judges were free to refuse to take an intra-dhimmī case in the first place and
send it back to a dhimmī court (Fattal, Statut légal, 354-5). Santillana claims that Mālikī qāḍīs have no jurisdiction
whatsoever over intra-dhimmī cases: “se la causa si svolge tra non Musulmani, il ‘qāḍī’ non è competente”
(although he does not cite a source for this: Santillana, Istituzioni di diritto musulmano malichita, v. 2, 568). Aḥmad
b. Yaḥyā al-Wansharīsī (d. 1508), author of the most famous collection of Mālikī fatāwā, records four different
opinions (all from Cordoban jurists) concerning a case in which a woman sued her father in a sharī‘a court (in
Aḥmad b. Yaḥyā al-Wansharīsī, Al-Mi‘yār al-mu‘rib wa-’l-jāmi‘ al-mughrib ‘an fatāwā ‘ulamā’ Ifrīqīya wa-’l-
Andalus wa-’l-Maghrib, 13 vols. (Beirut: Dār al-Gharb al-Islāmī, 1981), v. 10, 128-30. Two jurists (Ibn ‘Abd
Rabbihi, d. 940, and Ibn Maysūr, d. ?) rule that concerning civil matters, if one Jew sues his coreligionist in a Jewish
court and the other does so in an Islamic court, then the case falls under Jewish jurisdiction; only if they both
approach a sharī‘a court must the qāḍī take the case (for which he cites Quran 5:42). Ibn Hārith (d. 981) agrees,
though he adds that even if only one party brings the case to a sharī‘a court the qāḍī is required to adjudicate if
Jewish law does not prescribe a ruling on the matter. Ibn Zarb (d. 991) argues that the ruling of the Jewish court
should only be overturned if there is proven enmity between one of the parties and the Jewish judges, or between a
party and the Jewish witnesses. Only Aṣbagh b. Sa‘īd (d. 968/9) argues that the qāḍī must accept the case regardless
of the preferences of the two Jews involved. (On this case, see H. R. Idriss, “Les tributaires en occident musulman
médiéval, d’après le “Mi‘yār” d’Al-Wansharīshī,” in Mélanges d’Islamologie : Volume dédié à la mémoire de
Armand Abel par ses collègues, ses élèves et ses amis, ed. Pierre Salmon (Leiden: Brill, 1974), 177; Zafrani, “Les
relations judéo-musulmanes dans la littérature juridique,” 142; Matthias B. Lehmann, “Islamic Legal Consultation
and the Jewish-Muslim ‘Convivencia’: Al-Wansharîsî’s Fatwâ Collection as a Source for Jewish Social History in
al-Andalus and the Maghrib,” Jewish Studies Quarterly 6 (1999): 51-3.)
11
The majority of jurists (including, it seems, Mālikī jurists) agree that Islamic law should be applied: Libson,
“Otonomiyah,” 351-2. There is a dissenting opinion (attributed to Mālik b. Anas and Abū Ḥanīfa) which states that
dhimmīs should be judged according to their law (ibid.). The Shāfi‘ī school, on the other hand, considers a qāḍī
judging a case among non-Muslims to be acting only as an arbiter; therefore the qāḍī is not necessarily expected to
apply Islamic law (Fattal, Statut légal, 353-4).
12
This is partly because many criminal cases were adjudicated primarily in Makhzan courts presided over by local
government officials. Generally these courts did not keep written records of their activities at all, making it very
difficult to reconstruct their functioning; however, I address the role of the Makhzan in the functioning of the
Moroccan legal system in Part Two.
47