IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
egardless of whether a Jew was involved or not. This is best seen in those documents in the Assarraf collection which concern only Muslims and mention nothing about Jews. In these notarial documents, the same general formulae are reproduced as in contracts among among Muslims and Jews. 35 Similarly, the intra-Muslim documents recording lawsuits follow the same general procedures and employ the same formulae. 36 Of course, it is possible that nearly identical documents might have concealed significantly different treatment; there were undoubtedly instances in which qāḍīs discriminated against Jews based on their creed (as I discuss in Chapter Six). Nonetheless, the resemblance among Islamic legal documents regardless of whether or not a case involved Jews suggests that in theory, at least, Islamic law was mostly applied identically to Muslims and non-Muslims. Yet there are important areas of Islamic law which treat Muslims and non-Muslims differently, especially concerning the laws of evidence. Islamic law requires testimony from two adult Muslim men who fit the requirements of probity (‘adl), or from one man and two women. 37 By the early modern period, this requirement had developed into a reliance on professional notaries to act as “just witnesses” (‘adl, pl. ‘udūl). These ‘udūl were responsible for testifying to all written documents which constituted valid evidence in a sharī‘a court. Jews could not serve as ‘udūl by virtue of being Jewish; neither could Muslim women, slaves, minors, Muslim men considered to lack the qualities of uprightness and justice, or, in Morocco after 1877, Muslims who had acquired foreign protection. 38 What this meant in practice was that Jews had to rely on the services of professional ‘udūl to attest to the validity of their contracts so that these 35 For bills of debt among Muslims only, see TC, File #9, 12 Jumādā II 1279; File #5, 10 Jumādā I 1283; File #7, 13 Jumādā I 1290; File #8, 23 Rabī‘ I 1296; File #10, 21 Dhū al-Qa‘da 1316. For bills of sale of real estate, see File #10, 18 Jumādā I 1302 and 10 Rajab 1317. 36 For a lawsuit among Muslims, see TC, File #5, 10 Dhū al-Ḥijja 1314. 37 Schacht, An Introduction to Islamic Law, 192-3. 38 Mawlāy Ḥasan established a rule that Muslims who had acquired foreign protection were ineligible to serve as ‘udūl: see Mūdirīyat al-Wathā’iq al-Mālikīya, Al-Wathā’iq, Volume 4 (Rabat: al-Maṭba‘a al-mālikīya, 1977), 426-7. 80
documents would stand up as evidence in a sharī‘a court. In their reliance on ‘udūl, however, Jews were no different from Muslims who also had to use the services of notaries to render their written contracts valid in court. Ultimately, it was the documents notarized by ‘udūl which formed the basis of most evidence in sharī‘a courts; the claims of both plaintiffs and defendants had to be backed up by notarized documents. 39 Qāḍīs—at least in Morocco—rarely called in witnesses to testify verbally. 40 In the Ottoman Empire, on the other hand, verbal testimony played a much more important role in trials; 41 there is evidence that Jews in Ottoman sharī‘a courts were able to testify, though usually only in cases that concerned other non-Muslims. 42 In other words, since the role of ‘adl was professionalized in nineteenth-century Morocco, the prohibition on Jews serving as ‘udūl did little to make their experience in court different from that of Muslims. 43 The invalidity of non-Muslims’ testimony also meant that Jews were ineligible to testify in a lafīf, a form of witnessing particular to the Maghrib in which twelve men who were not 39 This is contrary to the strict doctrine of Islamic law, which considers oral testimony the only definitive form of proof. Nonetheless, written documents are considered acceptable because they are signed by ‘udūl whose signatures stand in for the oral testimony of witnesses: see Tyan, Le notariat, 3-14, 72-92. 40 I found a single reference to a qāḍī asking for verbal testimony from witnesses in court (see FO, 636/3, Carstensen to Hay, 10 March 1866). This case concerned the theft of merchandise from the store of Joseph Crespo, a Jew under British protection, in which another Jew, a Moroccan subject, was the suspect. The governor of Essaouira initially tried the case, but decided that because the evidence was circumstantial it should be adjudicated in a sharī‘a court. The qāḍī refused to hear the oral testimony of Jews and Christians (as well as Muslims considered to be impious). However, given the fact that this case concerned goods belonging to a Jew with protection, I suspect that the qāḍī might have presented obstacles to the resolution of the case in order to inconvenience the protégé and his consul. This is corroborated by the fact that reference to verbal testimony from either Muslims or Jews in sharī‘a courts is almost entirely absent from the archives. 41 Ronald Jennings explains that in the kadı court of seventeenth-century Kayseri, written evidence was only used if witnesses could not be found: Jennings, “Limitations of the Judicial Powers of the Kadi,” 173. 42 Concerning sixteenth-century Ottoman Palestine, Amnon Cohen writes: “In summary, the testimony of Jews in the Muslim court was acceptable evidence against Jews and Christians and served as supporting evidence to the testimony of Muslims. It was not, however, acceptable as exclusive evidence against Muslims, and in such cases sufficed only when accompanied by some further proof, either a document or the testimony of a Muslim witness” (Cohen, Jewish Life under Islam, 122). See also al-Qattan’s findings that only on rare occasions did the testimony of dhimmīs outweigh that of Muslims in the sharī‘a court of Damascus; in most instances, dhimmīs preferred to engage Muslims to bear witness for them: Al-Qattan, “Dhimmis in the Muslim Court,” 437. Rossitsa Gradeva makes a similar argument concerning Sofia: Gradeva, “Orthodox Christians in the Kadı Courts,” 67. 43 On the fact that notarized documents could stand in for testimony (and thus make it possible for a Jew to prove his case without actually testifying), see also Boum, “Muslims Remember Jews,” 259. 81
- Page 39 and 40: orders. I also turn the focus from
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- Page 59 and 60: Jewish and Islamic legal systems re
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- Page 63 and 64: atei din generally, it does reflect
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egardless of whether a Jew was involved or not. This is best seen in those documents in the<br />
Assarraf collection which concern only Muslims and mention nothing about Jews. In these<br />
notarial documents, the same general formulae are reproduced as in contracts among among<br />
Muslims and Jews. 35 Similarly, the intra-Muslim documents recording lawsuits follow the same<br />
general procedures and employ the same formulae. 36 Of course, it is possible that nearly<br />
identical documents might have concealed significantly different treatment; there were<br />
undoubtedly instances in which qāḍīs discriminated against Jews based on their creed (as I<br />
discuss in Chapter Six). Nonetheless, the resemblance among Islamic legal documents<br />
regardless of whether or not a case involved Jews suggests that in theory, at least, Islamic law<br />
was mostly applied identically to Muslims and non-Muslims.<br />
Yet there are important areas of Islamic law which treat Muslims and non-Muslims<br />
differently, especially concerning the laws of evidence. Islamic law requires testimony from two<br />
adult Muslim men who fit the requirements of probity (‘adl), or from one man and two women. 37<br />
By the early modern period, this requirement had developed into a reliance on professional<br />
notaries to act as “just witnesses” (‘adl, pl. ‘udūl). These ‘udūl were responsible for testifying to<br />
all written documents which constituted valid evidence in a sharī‘a court. Jews could not serve<br />
as ‘udūl by virtue of being Jewish; neither could Muslim women, slaves, minors, Muslim men<br />
considered to lack the qualities of uprightness and justice, or, in Morocco after 1877, Muslims<br />
who had acquired foreign protection. 38 What this meant in practice was that Jews had to rely on<br />
the services of professional ‘udūl to attest to the validity of their contracts so that these<br />
35<br />
For bills of debt among Muslims only, see TC, File #9, 12 Jumādā II 1279; File #5, 10 Jumādā I 1283; File #7, 13<br />
Jumādā I 1290; File #8, 23 Rabī‘ I 1296; File #10, 21 Dhū al-Qa‘da 1316. For bills of sale of real estate, see File<br />
#10, 18 Jumādā I 1302 and 10 Rajab 1317.<br />
36<br />
For a lawsuit among Muslims, see TC, File #5, 10 Dhū al-Ḥijja 1314.<br />
37<br />
Schacht, An Introduction to Islamic Law, 192-3.<br />
38<br />
Mawlāy Ḥasan established a rule that Muslims who had acquired foreign protection were ineligible to serve as<br />
‘udūl: see Mūdirīyat al-Wathā’iq al-Mālikīya, Al-Wathā’iq, Volume 4 (Rabat: al-Maṭba‘a al-mālikīya, 1977), 426-7.<br />
80
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