IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
IN THE COURTS OF THE NATIONS - DataSpace - Princeton ... IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...
In general, foreigners writing about Morocco before 1912 and many contemporary scholars emphasize that the testimony of non-Muslims was unacceptable in sharī‘a courts. 54 Even among those who present a more nuanced view, there is much confusion about what non-Muslims could and could not do according to Islamic law. For instance, a French observer writing in 1900 first stated that only the oaths of Muslims were acceptable under Islamic law, then went on to explain that when called to take oaths, Jews took their oaths on the Torah. 55 Scholars have yet to observe that legal procedure as it was practiced in Morocco meant that Jews effectively could bear witness as long as they did so through documents notarized by ‘udūl and that their judicial oaths bore equal weight to those of Muslims. Although the testimony of Jews is not acceptable under certain circumstances, this did not mean that Jews were never able to give their word as evidence. On the contrary, Jews’ oaths were always considered legitimate and Jews could submit written evidence drawn up by ‘udūl even when these documents were based on oral testimony by dhimmīs. Nonetheless, the restrictions on the testimony of non-Muslims did have an effect on Jews’ experience in Moroccan sharī‘a courts; Jews were barred from serving as notaries and from offering their testimony as part of a lafīf. However, the fact that Jews could not serve as ‘udūl and thus had to seek the services of professional notaries did not distinguish them from most Muslims. Jews were treated fundamentally differently in their inability to testify in a lafīf, but this aspect of 54 See, e.g., “Differences between the Assassination of a Muslim and that of a Jew according to Muslim law,” Anglo-Jewish Association Seventeenth Annual Report (1888), p. 20-21, in Fenton and Littman, L’exil au Maghreb, 343-4: Chouraqui, Between East and West, 44; Ye‘or, The Dhimmi: Jews and Christians under Islam, 56-7: C. R. Pennell, Morocco since 1830 (New York: New York University Press, 2000), 83. Eliezer Bashan concludes that the restriction on testimony meant that Jews were at constant risk of becoming victims of Muslims’ false testimony, since their own word did not hold up against that of a Muslim (Bashan, Yahadut Maroko, 61). On the testimony of dhimmīs in Mālikī law more generally, see Santillana, Istituzioni di diritto musulmano malichita, v. 2, 100-1. 55 Albert Maeterlinck, “Les institutions juridiques au Maroc,” Journal de droit international privé (1900): 479. 84
legal procedure was relatively minor. 56 These nuances are crucial to understanding Jews’ experience in sharī‘a courts, especially given the confusion surrounding the testimony of non- Muslims. Bills of Debt To get a better sense of how the Assarrafs used the sharī‘a court, it is necessary to delve deeper into the business which this family conducted before qāḍī and ‘udūl. As mentioned above, the Assarrafs turned to the sharī‘a court to notarize legal documents far more often than for litigious pursuits. A few kinds of notarial documents are especially common in the Assarraf collection, particularly bills of debt, contracts for the rent or sale of property, and releases; their abundance indicates that these were the kinds of transactions which most frequently brought the Assarrafs to the sharī‘a court. Bills of debt constitute the majority of notarial documents in the collection (about 64% of the total). The preponderance of bills of debt was not limited to the Assarrafs. Among the other sharī‘a court documents I examined, about 52% were also bills of debt. 57 It was in Jews’ interest to notarize their bills of debt with ‘udūl because contracts which conformed to Islamic legal standards were far more likely to be considered authoritative in case of litigation. As we will see shortly, qāḍīs consistently demanded legal proof of claims made in court, which essentially meant documents notarized by ‘udūl. In the event that a debtor did not repay his debts, the 56 As will be discussed further below, the testimony of a lafīf was almost always used to prove that a recalcitrant debtor was bankrupt and thus unable to pay his debts; since Jews were rarely indebted to Muslims, they more rarely needed the services of a lafīf. Of course, it is possible that lafīfs are relatively rare in the Assarraf collection precisely because Jews were unable to testify in them, and thus resorted to their use more infrequently than did Muslims. Only further research in collections of sharī‘a court documents belonging to Muslim families will answer this question definitively. 57 That is, 154 out of 295. 85
- Page 43 and 44: Legal pluralism does not explain wh
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In general, foreigners writing about Morocco before 1912 and many contemporary scholars<br />
emphasize that the testimony of non-Muslims was unacceptable in sharī‘a courts. 54 Even among<br />
those who present a more nuanced view, there is much confusion about what non-Muslims could<br />
and could not do according to Islamic law. For instance, a French observer writing in 1900 first<br />
stated that only the oaths of Muslims were acceptable under Islamic law, then went on to explain<br />
that when called to take oaths, Jews took their oaths on the Torah. 55 Scholars have yet to<br />
observe that legal procedure as it was practiced in Morocco meant that Jews effectively could<br />
bear witness as long as they did so through documents notarized by ‘udūl and that their judicial<br />
oaths bore equal weight to those of Muslims.<br />
Although the testimony of Jews is not acceptable under certain circumstances, this did<br />
not mean that Jews were never able to give their word as evidence. On the contrary, Jews’ oaths<br />
were always considered legitimate and Jews could submit written evidence drawn up by ‘udūl<br />
even when these documents were based on oral testimony by dhimmīs. Nonetheless, the<br />
restrictions on the testimony of non-Muslims did have an effect on Jews’ experience in<br />
Moroccan sharī‘a courts; Jews were barred from serving as notaries and from offering their<br />
testimony as part of a lafīf. However, the fact that Jews could not serve as ‘udūl and thus had to<br />
seek the services of professional notaries did not distinguish them from most Muslims. Jews<br />
were treated fundamentally differently in their inability to testify in a lafīf, but this aspect of<br />
54 See, e.g., “Differences between the Assassination of a Muslim and that of a Jew according to Muslim law,”<br />
Anglo-Jewish Association Seventeenth Annual Report (1888), p. 20-21, in Fenton and Littman, L’exil au Maghreb,<br />
343-4: Chouraqui, Between East and West, 44; Ye‘or, The Dhimmi: Jews and Christians under Islam, 56-7: C. R.<br />
Pennell, Morocco since 1830 (New York: New York University Press, 2000), 83. Eliezer Bashan concludes that the<br />
restriction on testimony meant that Jews were at constant risk of becoming victims of Muslims’ false testimony,<br />
since their own word did not hold up against that of a Muslim (Bashan, Yahadut Maroko, 61). On the testimony of<br />
dhimmīs in Mālikī law more generally, see Santillana, Istituzioni di diritto musulmano malichita, v. 2, 100-1.<br />
55 Albert Maeterlinck, “Les institutions juridiques au Maroc,” Journal de droit international privé (1900): 479.<br />
84
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