Jews, Muslims & Legal Pluralism in Morocco

A review of In the Courts of the Nations: Jews, Muslims and Legal Pluralism in Nineteenth-Century Morocco, by Jessica M. Marglin.

Jews in nineteenth century pre-colonial Morocco were not members of isolated, purely autonomous societies running parallel to a prevailing, homogenized Muslim order. Indeed, Jews and Muslims – in all of their diversity – overlapped considerably in their day-to-day interactions, mutually shaping the social, cultural and political life of one another. As Jessica Marglin rightly points out in her clear and erudite study of legal pluralism in nineteenth century Morocco, Jews engaged in legal forum shopping – a process by which Jews brought legal matters to both Jewish (batei din) and Muslim (shari’a) courts, depending on the anticipated outcome or the claimants involved. In addition to local Jewish and Muslim courts, Jews could appeal to the Makhzan (central Moroccan governing authority) and to European consular courts. As such, Marglin restores Moroccan Jewish legal agency while simultaneously demonstrating the considerable cooperation and overlap between legal systems. Marglin furnishes a number of individual case studies, primarily from the wealthy mercantile Assaraf family of Fez, in order to demonstrate how Jews navigated a pluralistic legal framework. Marglin’s legal focus sheds light on the broader active participation of Jews in nineteenth century Moroccan society. While the formal inauguration of the French protectorate looms in 1912, Marglin avoids a teleological narrative of Jewish legal life and instead reclaims a narrative that has been for too long neglected between the narrative poles of “tolerance” and “persecution.”

The “tolerance” model, dating from the nineteenth century Wissenschaft des Judentums movement, emphasizes the “convivencia” of Jews and Muslims in medieval Iberia and North Africa. In the European Jewish context, Salo Wittmayer Baron’s 1928 essay “Ghetto and Emancipation: Shall we Revise the Traditional View,” challenges a “Lachrymose” (i.e., “persecution”) reading of medieval European Jewish history, arguing against prevailing notions that Jewish emancipation in Europe was a universal benefit in contrast to an earlier age marked by constant persecution. Mark Cohen, Marglin’s primary dissertation advisor, applies Baron’s challenge of narratives of European Jewish history to the Muslim world in Under Crescent and Cross: the Jews in the Middle Ages (Princeton: Princeton University Press, 1994). Cohen draws from Baron in coining “neo-lachrymosity,” in which since the 1967 Six-Day War, the history of Jews in Muslim lands has been painted as uniformly bleak and hostile. While nineteenth and early twentieth century historians of the Jewish past maintained a “mythical utopian” understanding of Jewish life under Islam, by the late 1960s the political context for understanding that past had shifted profoundly.

In addition to this historiographical background, Marglin’s work contributes to assessments of colonialism and pre-colonial European interventions in Morocco. On the one hand, historical readings of pre-colonial Morocco as a prime example of legal instability for Jews (Marglin cites Norman Stillman, Michael Laskier, Bernard Lewis, Martin Gilbert and others); and on the other hand, understandings of European intervention as largely destructive of pre-existing good Moroccan Jewish-Muslim relations (Marglin cites Mohammed Kenbib, Germain Ayache, and many others). Marglin’s work complicates and nuances previous Moroccan Jewish historiography and is part of a growing body of literature that seeks to recover Jewish agency in the modern Moroccan (indeed, broader North African and Middle Eastern) past. To do this, she consults Moroccan archives in addition to European sources. Her emphasis is one of internal Moroccan dynamics rather than an encroaching imperialist story, sifting through archival holdings across Israel, Belgium, Morocco, the Netherlands, France, Spain and the United States, both family archives and state archival holdings.

The dissertation is divided into three parts across nine chapters, weaving examples from the Assaraf Jewish family of Fez (drawn from a collection of about 2,000 family legal documents). Part one assesses treatment of Jews and Jewish use of shari’a courts; part two how Jews interacted with the Makhzan judicial system; and part three Jewish protégés and European consular courts. Chapter one, “Between Batei din and Shari’a Courts,” introduces the Assaraf family and their use of both Jewish and Islamic courts. She introduces the reader to the concept of dhimmi (an Arabic term often translated as “protected”) status, the use of both Jewish and Muslim courts to notarize important documents and deconstructs the complex layers of shari’a court officials and their overlapping functions. This chapter demonstrates the fluid legal framework in which Jews operated, hardly isolated within the mellah (historic Jewish quarter) walls.

Chapter two, “Jews and Muslims in Shari’a Courts,” demonstrates (again through the Assarafs) how Jews were “not treated dramatically differently from Muslims” in a Muslim legal framework, quite contrary to what one might expect from a neo-lachrymose perspective, and indeed used them quite often (p. 74). Marglin addresses the sticky issue of admissibility of Jewish testimony in Muslim courts – it technically was not – but, this “did not mean that Jews’ testimony was by definition unacceptable in a Shari’a court. Jews – and in fact, non-Muslims generally – were eligible to take the judicial oath [typically in a synagogue] concerning the facts of a case” (p. 82). While these might seem to be signs of discrimination against Jews in shari’a courts, Marglin maintains: “[t]he restrictions on Jews’ ability to testify had far less impact on Jews’ actual treatment in shari’a courts than most scholars claim … On the contrary, Jews’ oaths were always considered legitimate and Jews could submit written evidence drawn up by ‘udul [Muslim notaries] even when these documents were based on oral testimony by dhimmis” (pp. 83-84).

Chapter three, “Crossing Jurisdictional Boundaries,” is the final chapter in part one. The chapter opens with the death of Shlomo Assaraf in 1917, the family patriarch, and the family’s need to divide the estate. As we might expect by this point, the family not only had the relevant deeds and documents notarized in the local beit din, but also by an ‘udul (Muslim notary – called a sofer in a beit din). The fraught issue of inheritance and succession was determined not only within the Jewish legal framework but also within that of Islam. Marglin points out that this was not required – this chapter is devoted to uncovering why the Assarafs pursued what perhaps seems like a redundant legal strategy. The answer lies in legal pluralism – Muslims going to Jewish courts to notarize contracts with Jews, and Jews to Muslim courts for contracts with Muslims. This highlights that rather than conflicting, the Jewish and Muslim legal systems in nineteenth century Morocco were complementary. Indeed, documents notarized by batei din were admissible in shari’a courts, and vice-versa, demonstrating a need for some literacy in both halakhah (Jewish law) and shari’a regardless of the court one frequented (p. 143), and rabbis served as expert witnesses in shari’a courts (p. 149).

Chapter four, “The Role of the Makhzan in the Moroccan Legal System,” begins part two. When local courts proved less than satisfactory, Jews and Muslims could appeal to the Makhzan – the central Moroccan government. For example, in the event that a local court was unable to enforce payment of a debt, the Assarafs petitioned the Makhzan for reinforcement (p. 150). As such, the Makhzan focused both on the local level – overlapping with the jurisdiction of qadis of the local shari’a courts – as well as fulfilling a more centralized capacity as a “court of appeals” (p. 153). Marglin introduces European perceptions of the Makhzan in this chapter, which take a distinctively negative tone assessing the Makhzan as fundamentally “arbitrary, corrupt, and devoid of any semblance of true justice” (p. 158). Marglin contextualizes these proceedings in a Morocco in great flux during the nineteenth century, including aims at centralizing legal and political authority and modernization attempts, particularly under Sultan Mawlay Hasan (r. 1873-1894). Indeed, “[r]esponding to Jews’s petitions was one way in which the Sultan fulfilled this obligation” and demonstrated power (p. 164). However, as Marglin demonstrates toward the end of this chapter, European perceptions of the abuse of Jewish life and religious practice provided a pretence for intervention – if the Makhzan could successfully address Jewish legal quandaries, Moroccan subjects might be less likely to turn toward consular protections that chipped ever further at Moroccan sovereignty (p. 165).

Chapters five, “Appeals to the Ministry of Complaints,” and six, “Collective Appeals to the Makhzan,” treat the relationship of the Makhzan, local courts and Jewish legal appeals at greater length, assessing a wide variety of cases and the efficacy of the Makhzan in assessing those cases. While these chapters certainly shed light on Jewish agency in an atmosphere of legal pluralism, as well as the cases in which Jews relied on Makhzan rulings rather than those of local courts, ultimately the reader gains a clearer picture of an embattled Makhzan attempting to centralize authority. While chapter five treats these matters in individual cases, chapter six looks at legal complaints in which communal rights had been violated and Jews appealed collectively, typically led by an elite representative, to the Makhzan’s authority (p. 228). Marglin highlights that while the vast majority of individual petitions to the state concerned unpaid debts, collective petitions “almost never concerned debts … Rather, the majority of the collective petitions were efforts to gain redress from the abuse of government officials” (p. 229). These appeals and the responses they received underscore one of Marglin’s central arguments: “that Jews and the state largely shared a language of rights and a framework of expectations concerning what Jews were entitled to” (p. 231).

Chapter seven, “Foreign Protection and Consular Jurisdiction,” begins part three of the dissertation examining European consular courts as yet another option in the legal market available to nineteenth century Moroccan Jews. The chapter opens with Shalom Assaraf’s status as an American protégé in 1871, calling upon his American “protector,” Ambassador Felix A. Mathews, to intervene in a legal dispute with the Makhzan (p. 271). This example sets the stage to explore the complex constellation of European consular protection and courts within the world of the Makhzan and local courts. As Marglin demonstrates in chapter eight, “Jews, Muslims and Foreigners in Consular Courts,” consular courts did not simply impose European laws to the helpless chagrin of the Sultan. Similar to the way in which shari’a courts and batei din officials were at least somewhat literate in one another’s legal customs and expectations, consular courts too drew on notarized documents from ‘udul and soferim as well as customs from shari’a and halakhah. Further, while one might be tempted to assume that the Europeans in Morocco operated on an entirely separate legal, political and social plane, Marglin’s examples nuance our understanding of Jews as protégés, as well as European commercial (and hence, legal) dealings with Muslims and Jews, requiring Europeans as well to make some use of Makhzan and local courts. However, Marglin concludes that the protégé system proved quite disruptive for Makhzan legal authority as it challenged dhimmi status and the Sultan’s relationship to the Jews: “[t]he impact of protection on the Moroccan legal system was anything but negligible, despite the scant attention paid to it in the historiography”(pp. 277-278).

Chapter nine, “The Intervention of Foreigners,” demonstrates that consular courts were not the only way for Europeans to shape Moroccan legal outcomes. The chapter opens with Shalom Assaraf’s signature on a collective petition to the Central Committee of the Alliance Israélite Universelle in Paris – a philanthropic French Jewish educational organization whose first school opened in Morocco in 1862. Jewish international organizations, particularly those of Britain and France, provided yet another avenue of Moroccan Jewish legal agency, for “Jews neither passively fell victim to the Makhzan nor were unwittingly duped by the divide-and-rule tactics of Europeans” (p. 334). Importantly, Jews did not reach out to consular courts or to international Jewish organizations as a last-ditch effort to oppose an “oppressive” or “arbitrary” Makhzan; Jews used all legal avenues available to them, simultaneously, to achieve optimal outcomes. This depended on the specificities of a given case, its place and time, and not on “tolerance” or “persecution.”

Jessica Marglin’s dissertation provides a necessary re-examination, and, indeed, in some cases an initial examination, of the nineteenth century Moroccan Jewish past. Her work is part of a growing body of literature that overcomes the “tolerance” or “persecution” binary of Jewish history, particularly in Muslim lands. This is an important work that restores agency to Moroccan Jews in a pre-colonial legal framework; at the same time, it provides a valuable lens onto the Moroccan state’s functioning and interaction with local and foreign actors.

Alma Rachel Heckman
Department of History
University of California, Los Angeles
almaheckman@ucla.edu

Primary Sources

Archives du Ministère des Affaires Etrangères, Nantes
Bibliothèque Hassaniya (also called the Bibliothèque Royale, al-Khizana al-Hasaniya or al-Maktaba al-Malikiya), Rabat
Paul Dahan Collection, Centre du Culture Judéo-Marocaine, Brussels
Private Collection of Professor Yosef Tobi, Jerusalem
The Dutch National Archives (Nationaal Archeif), The Hague

Dissertation Information

Princeton University. 2013. 403 pp. Primary Advisor: Mark R. Cohen.

 

Image: Kunnash 157, al-Maktaba al-Hasaniyya, Rabat, Morocco.

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