This paper deals with a series of fatwas contained in al-Mahdi al-Wazzani’s Mi’yar al-Jadid on the legitimacy of ‘Abd al-Qadir b. Muhyi al-Din al-Jaza’iri’s armed resistance to the 1830 French invasion of Algeria. The Moroccan Sultan ‘Abd al-Rahman had initially participated in ‘Abd al-Qadir’s jihad but had soon been forced to withdraw his troops after having suffered heavy losses. Rather than lose religious prestige by being seen to have abandoned the duty of jihad, the sultan sought to subcontract the duty of jihad to ‘Abd al-Qadir. This unprecedented action was to cause the sultan great difficulties as his truce with the French depended upon his ability to reign in ‘Abd al-Qadir’s forces and prevent them from using his land and resources to attack them. If he could not fulfill this responsibility, his treaties with them became void and his land stood in danger of a French invasion. If, on the other hand, he crushed ‘Abd al-Qadir’s forces, he would not merely be unpopular among his subjects but would have appeared impious as he would have been seen to have impeded a religiously obligatory, defensive jihad which merely sought to retain lands previously governed by Muslims? In desperation, the sultan requested the jurists to write fatwas on what his duties were in this regard. In their fatwas, the jurists debated how apparent conflicts between the laws of Islam and the will of the sultan are to be resolved. They also discussed the extent to which the religious legitimacy of ‘Abd al-Qadir’s jihad was dependent upon the approval of the sultan. In response to the new dangers of colonialism, they re-evaluated classical teachings on defensive and offensive jihad, on whether jihad was a communal or an individual obligation and on the law of truces. I discuss how they drew on the legal precedents included in al-Wansharisi’s Mi’yar al-Mu’rib and on other earlier Maliki sources and how they sometimes radically altered these teachings in response to the exigencies of the Colonial Age. The jurist’s formulations of these debates were to set the ground for later discussions in other Middle Eastern countries regarding the appropriate response to Western colonialism.

The life and career of qa'id al-Najim al-Akhsassi provide us with a rare insider's view of the tumultuous processes of military, political, social, and cultural change which challenged old values,and patterns of practice and stimulated the creation of new ones, at once, modern and authentically Moroccan during the decades prior to 1912. The new army, organized during this period, was an especially significant arena for these unfolding processes. As a senior military officer, from the 1890s-1912, al-Najim was at the center of the struggle by state and society to confront, and creatively accommodate, the formidable array of interventions imposed on them by European powers intent upon incorporating Morocco into their imperial systems to their need to preserve their Islamic and Moroccan values and identity. al-Najim's passage from being the son of freed slaves, resident in Morocco's Sus al-'Aqsa, to a high military rank in the state's new army -- patterned after those of Europe -- is of particular interest because his construction of a modern professional identity as an officer involved not only a negotiation of Moroccan-European values, but required him to renegotiate his own social relatioinships and identity within Moroccan society at the same time. This paper will explore, through his career, his personal struggle to be and effective and respected part of a new army that for the first time reflected an emerging "national" social and geographical base, new standards of professionalism, and embodied the contradictions involved in service in a force that was justified primarily in terms of defending the community of believers against European intervention, while itself being, in form, method, and organization, intimately associated with contested European models and initiatives. This study is based on al-Najim's autobiography, given orally to the historian, Muhammad Mukhtar al-Susi, and published in his "Ma`asul"(v. XX,1961), as well as documentation from Moroccan and French archives, other published sources, and interviews made, over the past several years, with several of his contemporaries.

Between the mid-nineteenth century and the beginning of the colonial rule in 1912, Moroccan sovereignty was challenged at an increasingly accelerated pace with unceasing pressure from the European powers. At the same time, the Makhzan and political elite initiated a reform effort that was directed toward centralization of the state apparatus and represented a significant transformation of the Moroccan state and society. Many of the changes and reform were viewed as illegitimate by certain segments of the Moroccan society and were met with local resistance and social unrest. In important ways, the protégés system (himaya) symbolizes the changing power relationship between Morocco and Europe. Himaya refers to the practice whereby, especially from 1860 onwards, foreign residents granted extraterritorial rights to their local employees and business agents. These rights conferred legal and fiscal immunities under the protection of European consulates. Obviously, a system whereby Moroccan subjects became protégés of foreign powers considerably transformed relations between the Moroccan ruler and his subjects and directly challenged Moroccan authority and sovereignty. This presentation is part of my study of al-Mahdi al-Wazzani and his extensive compilation of fatwas, al-Mi‘yar al-jadid. Specifically, my proposed paper focuses on one fatwa issued by al-Wazzani on the practice of securing consular protection against the tyranny of a Muslim ruler. In analyzing this fatwa, I will address the following questions: how did a leading jurist in the period under discussion interpret the protégés system? What meaning did he assign to it? How did he view the sultan’s governance and relationship with society? I argue that in his fatwa, al-Wazzani expresses unconditional support for the ruler, however insufferable, tyrannical, and despotic he might be. Al-Wazzani demands that subjects manifest absolute and unlimited obedience to the sovereign; criticism, opposition and rebellion against the sultan are illegitimate. It appears that al-Wazzani’s aim in writing his fatwa was not only to prohibit the practice of himaya but also to justify the contentious politics of the day.

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.