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

The introduction of the “protection clause,” as I shall refer to it, was necessitated by the
increasing numbers of foreign protégés who brought their lawsuits to consuls instead of qāḍīs.
Jews were over-represented among foreign protégés, though it is important to stress that it was
not only Jews who acquired patents of protection. Because of the nature of the Assarraf
collection, the majority of documents with the protection clause concern a Jewish creditor and a
Muslim debtor. However, the collection contains some bills of debt among Muslims which also
include the protection clause, suggesting that ‘udūl did not insert this clause only for transactions
with Jews. 26 The appearance of the protection clause not only indicates the extent to which
consular courts became an important feature of the Moroccan legal system, but also shows that
Jews and Muslims with access to consular courts continued to frequent sharī‘a courts as well (a
point to which I return in Part Three).
Distinguishing Jews in the Sharī‘a Court
The documents in the Assarraf collection suggest that Jews’ experience in sharī‘a courts
was not radically different from that of Muslims. Legal procedure and the production of legal
proof worked largely along the same lines for members of both faiths. Moreover, Islamic law
applied mostly in the same way for both religious groups, except concerning the rules of
evidence. 27 The application of Islamic law with little variation across confessional lines
the mid-1880s, it became quite common. The protection clause also appears in bills of guarantee, though I only
found two such instances (TC, File #4, 2 Shawwāl 1306 and File #3, 12 Ramaḍān 1308).
26
See, e.g., TC, File #2, 3 Jumādā II 1325. See also a bill of sale among Muslims in which one party testifies that
he does not have any foreign protection (File #10, 10 Rajab 1317). Nonetheless, given the large number of Jewish
protégés and the perception of Jews as having more extensive connections with foreign consulates, the protection
clause may have been more commonly included when Jews were involved.
27
As Gideon Libson has observed, Islamic law guaranteed Jews equal treatment to Muslims in many areas of private
law (including partnership, personal status, etc.): Libson, Jewish and Islamic Law, 81.
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