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

Empire. 49 A document in the Assarraf collection gives a particularly vivid description of how
Jews took oaths according to Islamic law:
When the creditor on the back [of this document, that is, Shalom Assarraf] decided to
leave this city, he asked the exalted sharī‘a [i.e. the sharī‘a court], may God elevate and
strengthen it, to administer the oath which was required of him by his aforementioned
debtor in the transaction on the back concerning payment (qaḍā’), for what the debtor
might request of the creditor, [so] that [the creditor might] appoint an agent to collect the
amount from [the debtor]….[Then,] with the official Mālik b. Laḥsan al-Sūsī [who] went
with the creditor to their great place in their synagogue in the millāḥ of this city, the
creditor took the book of the Torah in his hand and swore, saying, ‘[I swear] by God,
there is no God but Him, he sent down the Torah through our lord Moshe, that the
transaction on the back is as it seems (ẓāhiruhā ka-bāṭinihā), and that I have not collected
any of it except the amount specified in the last [entry] on the back and that the rest is
still owed at this time.’ 50
It seems to have been the standard practice of sharī‘a courts in Morocco for Jews to take the oath
in a synagogue. 51 In another document, a Muslim specified that he wanted the Jew to swear his
oath on Saturday, though not all documents specify the Jewish Sabbath as the preferred day for
taking oaths. 52 Presumably, it was believed that Jews would be more likely to tell the truth if
they were made to swear in a place they regarded as holy and on their own sacred book.
The restrictions on Jews’ ability to testify had far less impact on Jews’ actual treatment in
sharī‘a courts than most scholars claim. The tendency to draw misinformed conclusions about
Jews’ inability to testify in sharī‘a courts runs through much of the literature on dhimmī status. 53
49 On Jews taking oaths in Islamic courts during the medieval period, see Libson, Jewish and Islamic Law, 115. On
Jews and Christians in the Ottoman Empire being allowed to take the oath, see Goldman, Rabbi David Ibn Abi
Zimra, 155; Cohen, Jewish Life under Islam, 122-3; Al-Qattan, “Dhimmis in the Muslim Court,” 438; Çiçek, “A
Quest for Justice,” 477; Ben-Naeh, Jews in the Realm of the Sultans, 239.
50 TC, File #1, 6 Jumādā II 1299 (on the back of a bill of debt dated 1 Rabī‘ II 1295).
51 For another reference to Jews taking oaths in their synagogue, see File #7, 12 Dhū al-Qa‘da 1297. This was, it
seems, standard in Mālikī law: Santillana, Istituzioni di diritto musulmano malichita, v. 2, 628. In the Ottoman
Empire, however, it seems that a Torah scroll or a set of phylacteries were brought to the sharī‘a court and the Jew
took his oath there (Ben-Naeh, Jews in the Realm of the Sultans, 239). On special formulas used by Christians and
Jews in their oath-taking, see Santillana, Istituzioni di diritto musulmano malichita, v. 2, 629 and Al-Qattan,
“Dhimmis in the Muslim Court,” 438. The shurūṭ manual from nineteenth-century Fez only includes a standard
formula for a Muslim to take the oath: Binānī, al-Wathā’iq al-fāsīya, 68.
52 File #1, 6 Shawwāl 1283.
53 On this more broadly, see the discussion in the Introduction.
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