IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
Chapter Two: Jews and Muslims in Sharī‘a Courts On May 20, 1880, Shalom Assarraf appeared in the sharī‘a court of Fez. 1 On this particular Thursday, Shalom was acting as the legal representative of his nephew Maymon ben Mordekhai Assarraf. It seems Maymon had gotten in a bit over his head on a business deal. According to Shalom’s deposition, Maymon had bought a pair of earrings from Aḥmad b. Muḥammad Fatḥan al-‘Alawī al-Imrānī for the not inconsiderable sum of twenty French riyāls. 2 Maymon had been under the impression that the earrings were made of gold; in fact, in his initial plea Shalom even claimed that this was a condition of the sale. But after Maymon took possession of the earrings, he “discovered that they were in fact made of copper (ẓahara annahā min al-nuḥās).” One can easily imagine what might have taken place; the younger and more inexperienced Maymon eagerly showed off what he thought was a great bargain—a pair of gold earrings for twenty riyāls!—only to be told by those with more expertise, perhaps even Shalom himself, that the earrings were made of relatively worthless copper. One can further imagine Maymon’s relief when his uncle Shalom, a man so expert in the workings of sharī‘a courts that even Muslims had appointed him as their lawyer, agreed to represent him in court to sue Muḥammad. Shalom accused Muḥammad of having tricked Maymon, to which Muḥammad responded that he had indeed sold the earrings to Maymon, but that he had only sold them for four riyāls and ten ‘uqīyas 3 —presumably a reasonable sum for a pair of copper earrings. After the initial depositions, the parties reached an agreement that Maymon would return the earrings 1 TC, File #4, 10 Jumādā II 1297. Because the qaḍī’s signature is missing, it is impossible to know in which of Fez’s three sharī‘a courts the lawsuit took place. 2 In 1880, one French riyāl (five francs) was equal to approximately 8 mithqāls in Essaouira (although the exchange rate varied from one city to another: Schroeter, Merchants of Essaouira, 143, 49). 3 One ‘uqīya was equal to 10 mithqāls, so at the exchange rate current in Essaouira at the time, this would have amounted to 48 ‘uqīyas (instead of 160). 68
and Muḥammad would return the money (although it is not clear what price was ultimately settled upon). 4 At the very least, Maymon recuperated some of his losses thanks to the lawsuit. This was due in part to the power of the sharī‘a court to convince individuals to settle cases. Maymon’s success was probably also due to his uncle’s expertise in Islamic law and legal procedure; as we shall see in what follows, Shalom was quite familiar with the workings of sharī‘a courts and undoubtedly drew on this knowledge in helping to get his nephew a fair settlement. The fate of Maymon Assarraf’s copper earrings is ultimately of less import than what this case tells us about how Jews like Maymon and Shalom used the sharī‘a court to facilitate their commercial endeavors. This chapter and the next explore the ways in which Jews in nineteenth- century Morocco engaged the services of sharī‘a courts on a day-to-day basis. In this chapter I address how Jews frequented sharī‘a courts within the limits of the jurisdictional divisions mandated by Islamic law, which required that all cases involving Jews and Muslims be judged according to the precepts of the sharī‘a. Inter-religious matters were by far the most common cases which brought Jews to sharī‘a courts. Although the blurring of jurisdictional lines was by no means rare, it was nonetheless the norm for Jews to bring most intra-Jewish cases to rabbinic courts and most inter-religious cases to sharī‘a courts. The Assarraf collection provides a glimpse of how one Jewish family—and especially the family’s patriarch, Shalom—employed the services of the local qāḍīs and ‘udūl. In analyzing this collection, I show that Jews were a regular presence in sharī‘a courts. I also demonstrate that their experiences before qāḍīs and ‘udūl were not dramatically different from those of Muslims. Islamic law was largely applied to dhimmīs in the same way it was applied to 4 The settlement is recorded on the back of the lawsuit; I infer that it is a settlement rather than a judgment both because the document does not include the qāḍī’s decision or the qāḍī’s signature (it is only signed by ‘udūl). 69
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Chapter Two: Jews and Muslims in Sharī‘a Courts<br />
On May 20, 1880, Shalom Assarraf appeared in the sharī‘a court of Fez. 1 On this<br />
particular Thursday, Shalom was acting as the legal representative of his nephew Maymon ben<br />
Mordekhai Assarraf. It seems Maymon had gotten in a bit over his head on a business deal.<br />
According to Shalom’s deposition, Maymon had bought a pair of earrings from Aḥmad b.<br />
Muḥammad Fatḥan al-‘Alawī al-Imrānī for the not inconsiderable sum of twenty French riyāls. 2<br />
Maymon had been under the impression that the earrings were made of gold; in fact, in his initial<br />
plea Shalom even claimed that this was a condition of the sale. But after Maymon took<br />
possession of the earrings, he “discovered that they were in fact made of copper (ẓahara annahā<br />
min al-nuḥās).” One can easily imagine what might have taken place; the younger and more<br />
inexperienced Maymon eagerly showed off what he thought was a great bargain—a pair of gold<br />
earrings for twenty riyāls!—only to be told by those with more expertise, perhaps even Shalom<br />
himself, that the earrings were made of relatively worthless copper. One can further imagine<br />
Maymon’s relief when his uncle Shalom, a man so expert in the workings of sharī‘a courts that<br />
even Muslims had appointed him as their lawyer, agreed to represent him in court to sue<br />
Muḥammad. Shalom accused Muḥammad of having tricked Maymon, to which Muḥammad<br />
responded that he had indeed sold the earrings to Maymon, but that he had only sold them for<br />
four riyāls and ten ‘uqīyas 3 —presumably a reasonable sum for a pair of copper earrings. After<br />
the initial depositions, the parties reached an agreement that Maymon would return the earrings<br />
1<br />
TC, File #4, 10 Jumādā II 1297. Because the qaḍī’s signature is missing, it is impossible to know in which of<br />
Fez’s three sharī‘a courts the lawsuit took place.<br />
2<br />
In 1880, one French riyāl (five francs) was equal to approximately 8 mithqāls in Essaouira (although the exchange<br />
rate varied from one city to another: Schroeter, Merchants of Essaouira, 143, 49).<br />
3<br />
One ‘uqīya was equal to 10 mithqāls, so at the exchange rate current in Essaouira at the time, this would have<br />
amounted to 48 ‘uqīyas (instead of 160).<br />
68
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