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

Nonetheless, many histories of Jews continue to portray Jewish courts as the main, if not sole,
legal institutions which Jews utilized on a quotidian basis. Shalom’s weekly appearances in
court makes it impossible to ignore the importance of the sharī‘a courts in the legal history of
Jews.
The limited number of years spanned by the Assarraf collection makes it difficult to trace
changes over time in how Shalom Assarraf, his relatives, and his associates used the sharī‘a
courts of Fez. Nonetheless, an important development occurred over the sixty-year period
covered in the collection. Starting in the early 1880s, a new clause came to be added to many of
the bills of debt notarized in the sharī‘a courts. 22 Although the formula varied, the most common
version stipulated that the creditor “would not claim protection, and if the matter goes to trial,
then it will fall under the jurisdiction of the sharī‘a court.” 23 Protection referred to consular
protection; depending on the exact circumstances of the case, if one of the parties was a protégé,
lawsuits might have fallen under the jurisdiction of consular courts. 24 (I discuss the role played
by consular courts in the Moroccan legal system in Chapters Seven and Eight.) This clause first
appears in the Assarraf collection in documents from 1880; by 1883 the clause was included in
the majority of bills of debt. 25
22
See the very brief mention of this clause in Miège, Le Maroc et l’Europe, v. 3, 193. The French ambassador to
Morocco noted this development in a letter from 1887: “Aussi avons-nous trouvé beaucoup de titres portant dans le
corps de l’acte la mention qu’en cas de discussion, le paiement, bien que passé au profit de protégés français ou de
Français, ne serait pas réclamé par l’intermédiaire de la Légation de France, mais serait soumis au Chrâ, tribunal du
Cadi, le Français ou protégé français renonçant pour le circonstance à sa qualité” (MAE Courneuve, CP Maroc 53,
Féraud to Flourens, 28 September 1887).
23
Lā yadda‘ī ḥimāyatan fī hādhihi al-mu‘āmalati wa-in iftaghara fīhi li-da‘wā fa-marji‘uhu lil-shar‘. The verb
iftaghara comes from the root faghara, which literally means “to open.” I have not found a definition for the eighth
form of this root in any classical dictionaries (or in Dozy), nor is it found in Colin’s dictionary of Moroccan Arabic.
Nonetheless, the word as it is used here clearly refers to a case being brought to court. I suspect this is a meaning
current in nineteenth-century Morocco which has since fallen out of usage.
24
I have only come across the Arabic word ḥimāya as meaning “consular protection” in the context of nineteenthcentury
Moroccan texts.
25
Out of a sample of 150 bills of debt which are post-1883, only 32 (21%) did not have the protection clause.
Sharī‘a court documents from the other collections I examined never have the protection clause before 1880; after
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