MESA Banner
Juridical Modernity Reconsidered: The Interplay of Muslim and Consular Legal Systems in Pre-Protectorate Morocco
Abstract
The spread of consular courts and the increasing numbers of Moroccan Jews who frequented them is among the most important elements which propelled Moroco into the modern age. Armed with patents of protection from European diplomats, Jewish protégés had the privilege of eschewing Muslim courts in favor of consular courts. Most historians have viewed consular courts as an opportunity for Jews to escape an Islamic legal order which considered them inferior to Muslims and regularly denied them the few rights they could claim under Islamic law. The possibility of resorting to consular courts, according to this narrative, was the only way for Jews to obtain justice. A careful examination of the court records from American, French, British, and Dutch consulates calls into question the extent to which Jews used these courts in order to escape the Islamic judicial system. In fact, numerous cases adjudicated by Moroccan Jews in consular courts involved the Islamic courts these actors were supposedly trying to avoid. For instance, plaintiffs in consular courts brought written proofs of their claims drawn up before a Muslim judge. Similarly, consular court records note that their protégés’ documents were often authorized by ‘ud?l, witnesses who functioned like notaries in the Moroccan legal system. Consular courts also took advantage of the services of “religious” courts in order to record evidence. In short, Jews who turned to consular courts did not entirely reject the Islamic legal system. There is no question that the growing number of European protégés caused social and political upheaval in Moroccan history. However, the procedures linking consular courts and Muslim courts suggest that this shift may not have been as revolutionary as previously thought. Jewish protégés’ voluntary use of Muslim courts is more understandable when viewed in historical context. Jewish recourse to Muslim courts was common in Morocco long before consular courts appeared on the scene, and there is much evidence that many Jews believed they could obtain justice in Muslim courts. The fact that Jewish protégés continued to utilize these courts even when they had the opportunity to avoid them further indicates that not all Jews considered Islamic courts fundamentally unjust. Nor did Jews entirely assimilate the discourse of numerous European diplomats, who claimed an exclusive monopoly on justice. Rather than replacing Islamic courts, consular courts simply added one more option to the list of juridical systems available to Moroccan Jews in the pre-colonial period.
Discipline
History
Geographic Area
Morocco
Sub Area
19th-21st Centuries