MESA Banner
The Word of a Dhimm?: Jews’ Testimony in Moroccan Shari‘a Courts, 1850-1912
Abstract
Scholars of Islamic legal history have long been attentive to the treatment of non-Muslims in shar?‘a courts. Most standard introductions to Islamic law explain that dhimm?s (protected non-Muslims) are not entirely equal to Muslims before the law. Specifically, the testimony of dhimm?s is unacceptable, except concerning other dhimm?s. For the most part, scholars have taken this restriction at face value. More recently, however, legal historians using Ottoman court records have pointed out that in practice, Jews and Christians in the Ottoman Empire at times did bear witness against their Muslim neighbors in shar?‘a courts. Yet these findings have mostly been understood as an exception to the rule that dhimm?s’ testimony is unacceptable under Islamic law. This paper draws on thousands of legal documents produced by shar?‘a courts in Morocco between 1850 and 1912 in order to determine how dhimm?s were actually treated when they appeared before a q???. I focus on legal cases involving Jews, since Jews were the only indigenous non-Muslim community in nineteenth-century Morocco. In particular, I look at how the restriction on dhimm?s’ testimony played out in reality. I argue that it is important to distinguish between testimony and oaths, for while the testimony of dhimm?s was restricted, their ability to take oaths was not—a distinction some scholars fail to make. The importance of oaths in legal procedure as it was practiced in Morocco meant that in this area, at least, Jews were equal to Muslims before the law. I also show that the way testimony worked in Moroccan shar?‘a courts minimized the restrictions on dhimm?s as witnesses. Because Moroccan courts relied on notarized documents rather than on oral testimony, Jews were for the most part able to present evidence in exactly the same way as Muslims. Ultimately, the findings from Moroccan legal documents show that the limitations on dhimm? testimony had relatively little impact on the experience of Jews in shar?‘a courts. This is significant not only for our understanding of the history of Jews in Morocco, but for the place of non-Muslims in Islamic society more broadly. My conclusions indicate that the received wisdom about the disabilities imposed on dhimm?s by Islamic law can be challenged by a systematic examination of archival material. More broadly, my understanding of Jews’ experience in Moroccan shar?‘a courts suggests important revisions to our view of relations among Muslims and non-Muslims in the Islamic world.
Discipline
History
Geographic Area
Morocco
Sub Area
Islamic Law