This article begins from the premise that the margins can shine light on the center, and uses the experience of Jews (thought of as marginal in the Islamic world) in Moroccan courts (similarly thought of as marginal in Islamic history) to tell a new story about orality and writing in Islamic law. Using archival evidence from nineteenth-century Morocco, I argue that, contrary to the prevailing historiography, written evidence was central to procedure in Moroccan shari‘a courts. Records of nineteenth-century lawsuits between Jews and Muslims show that not only were notarized documents regularly submitted in court, but they could outweigh oral testimony, traditionally thought of as the gold standard of evidence in Islam. The evidentiary practices of Moroccan shari‘a courts are supported by the jurisprudential literature of the Mālikī school of Sunni Islam, the only one prevalent in Morocco. These findings have particular relevance for the experience of non-Muslims in Islamic legal institutions. Scholars have generally assumed that Jews and Christians faced serious restrictions in their ability to present evidence in shari‘a courts, since they could not testify orally against Muslims. However, in Morocco Jews had equal access to notarized documents, and thus stood on a playing field that, theoretically at least, was level with their Muslim neighbors. More broadly, I explore ways in which old assumptions about the relationship of the written to the oral continue to pervade our understanding of Islamic law, and call for an approach that breaks down the dichotomy between writing and orality.
1 From the private collection of Professor Yosef Tobi, emeritus, of Haifa University (hereafter TC), file #4, 12 Jumādā II 1298/12 May 1881. I am grateful to Professor Tobi for his permission to consult his collection.
2 Ya‘akov also claimed he was owed another 216 riyāls originally pledged to his father Shalom (for whom Ya‘akov had power of attorney), and that he had other documents to prove this second debt. Al-Zīrnibānī wanted to see the evidence of the 216 riyāls he had supposedly agreed to pay Shalom, and demanded that Ya‘akov bring the documents to court.
3 Such civil disputes could also be brought to an administrative court adjudicated by a government official. It was not unheard of for Muslims to bring these sorts of inter-religious disputes to Jewish courts: Marglin, Jessica M., Across Legal Lines: Jews and Muslims in Modern Morocco (New Haven: Yale University Press, 2016), 41–42 , 94–97.
4 See the references below.
5 Lévi-Strauss, Claude, Tristes Tropiques (New York: Criterion Books, 1961), 291.
6 Porter, Sir James, Observations on the Religion, Law, Government, and Manners of the Turks, 2 vols. (London: J. Nourse, 1768), v. 2, 5.
8 Hallaq, Wael B., An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 106. Similarly, in Yemen documents were deemed acceptable forms of proof in modern law codes: Messick, Brinkley, The Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley: University of California Press, 1993), 215–16.
9 Kuran, Timur claims that reliance on oral testimony only works in a closed society in which “everyone knows one another intimately through dense webs of interaction”: The Long Divergence: How Islamic Law Held Back the Middle East (Princeton: Princeton University Press, 2011), 240.
10 Ibid., 242.
11 Ibid., 249. Kuran argues that extraterritorial privileges granted to foreigners in the early modern period eventually contributed to the “de-Islamization of commercial life” and thus to an increased reliance on documentary evidence (ibid., ch. 12, esp. 251–53). In general, Kuran's argument about the importance of impersonal exchange in creating economic growth relies on Greif, Avner, Institutions and the Path to the Modern Economy (Cambridge: Cambridge University Press, 2006), ch. 10. Lydon, Ghislaine for the most part accepts Kuran's arguments: “A Paper Economy of Faith without Faith in Paper: A Reflection on Islamic Institutional History,” Journal of Economic Behavior and Organization 71 (2009): 647–59.
12 For Lévi-Strauss, writing was a tool of political domination, and his fascination with oral, “primitive” societies was precisely an effort to find people free of this corruption. Derrida and de Certeau more explicitly call any hierarchy into question.
13 For Jacques Derrida, Lévi-Strauss commits the error of “radically separating language from writing,” thus giving “the illusion of liberating linguistics from all involvement with written evidence”: Of Grammatology (Baltimore: Johns Hopkins University Press, 1997), 120.
14 de Certeau, Michel, The Practice of Everyday Life (Berkeley: University of California Press, 1984), 133.
15 Messick, Calligraphic State, 226–27.
16 Although my archival evidence stems solely from cases involving Jews, there are indications that Muslims used documentary evidence in similar ways (discussed below).
17 The differences between the four Sunni schools of law (madhhab, pl. madhāhib: Mālikī, Ḥanafī, Shāfi‘ī, and Hanbalī) are often relatively minor and jurists from the different schools recognize the authority of other schools over their own constituents. See, for example, Schacht, Joseph, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), ch. 9.
18 For a useful overview of the subject, see Burak, Guy, “Documents,” in Oxford Encyclopedia of Islam and Law (Oxford: Oxford University Press, 2016).
19 Schacht, Introduction to Islamic Law, 193.
20 Wakin, Jeanette A., The Function of Documents in Islamic Law: The Chapter on Sales from Ṭaḥāwī’s Kitāb al-shurūṭ al-kabīr (Albany: State University of New York Press, 1972), 6.
21 Johansen, Baber, “Formes de langage et functions publiques: stéréotypes, témoins, et offices dans la preuve par l’écrit en droit musulman,” Arabica 44, 3 (1997): 333–76, 375. Johansen explains that Schacht ignored these discussions because most of them took place after the tenth century, at which point, according to Schacht, Islamic legal theory ceased to develop. See also Shaham, Ron, The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law (Chicago: University of Chicago Press, 2010), 5–6 .
22 Johansen, “Formes de langage,” 373.
23 Müller, Christian, “Ecrire pour établir la preuve orale en Islam: la pratique d'un tribunal à Jérusalem au XIVe siècle,” in Saito, Akira and Nakamura, Yusuke, eds., Les outils de la pensée: étude historique et comparative des textes (Paris: Maison des sciences de l'homme, 2010), 63–97 .
24 Ibid., 72.
25 Ibid., 83. Müller also relies heavily on the Shāfi‘ī scholar Ibn Abī al-Damm, author of a manual for judges: al-Damm, Ibrāhīm b. ‘Abdallāh Ibn Abī (d. 1244), Kitāb adab al-qaḍā , al-Zuḥaylī, Muḥammad, ed. (Damascus: n.p., 1975).
26 Apellaniz, Francisco Y., “Judging the Franks: Proof, Justice, and Diversity in Late Medieval Alexandria and Damascus,” Comparative Studies in Society and History 58, 2 (2016): 350–78, 361.
27 Ergene, Boğaç, “Evidence in Ottoman Courts: Oral and Written Documentation in Early-Modern Courts of Islamic Law,” Journal of the American Oriental Society 124, 3 (2004): 471–91, 473–77. Indeed, Ergene does not find evidence even for the use of court records as evidence in the sijillat he examines (478–79). See also Jennings, Ronald C., “Limitations of the Judicial Powers of the Kadi in 17th C. Ottoman Kayseri,” Studia Islamica 50 (1979): 151–84, 173; Tamdoğan-Abel, Işik, “L’écrit comme échec de l'oral? L'oralité des engagements et des règlements à travers les registres de cadis d'Adana au XVIIIe siècle,” Revue du Monde Musulman et de la Mediterranée 75–76 (1995): 155–65.
28 Aykan, Yavuz, Rendre la justice à Amid: Procédure, acteurs et doctrines dans le contexte ottoman du XVIIIème siècle (Leiden: Brill, 2016), ch. 11, esp. 93, 108–10.
29 Lydon, “Paper Economy of Faith,” 655. See also Lydon, Ghislaine, On Trans-Saharan Trails: Islamic Law, Trade Networks, and Cross-Cultural Exchange in Nineteenth-Century West Africa (Cambridge: Cambridge University Press, 2009), esp. 289, 293–95, 379–80.
30 Lydon, Trans-Saharan Trails, 295.
31 Burak, Guy, “Evidentiary Truth Claims, Imperial Registers, and the Ottoman Archives: Contending Legal Views of Archival and Record-Keeping Practices in the Ottoman Empire (17th–19th Centuries),” Bulletin of the School of Oriental and African Studies 79, 2 (2016): 233–54. Aykan also finds a few occasions on which the cadi relied on documents from his own tenure in his court's archives (hüccet) to resolve a case (Rendre la justice à Amid, 151). Burak's and Aykan's findings confirm aspects of Johansen's argument (Johansen, “Formes de langage,” 349–50). See also Wakin, Function of Documents, 9.
32 Burak, “Evidentiary Truth Claims,” 236.
33 Messick, Calligraphic State, ch. 11.
34 Ibid., 213–15.
35 Ibid., 221–22.
36 Messick, Brinkley, “Evidence: From Memory to Archive,” Islamic Law and Society 9, 2 (2002): 231–70, 261–66. Paolo Sartori's work on Islamic law in Russian-ruled Central Asia presents a vision of a legal system awash with documents, although he does not discuss in detail the probative nature of written evidence. See, for example, Visions of Justice: Sharī‘a and Cultural Change in Russian Central Asia (Leiden: Brill, 2016).
37 Tyan, Emile, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman (Harissa: Imprimerie St. Paul, 1945).
38 Some, like the Ḥanafī scholar Ibn ‘Ābidīn (1783–1836, lived in Ottoman Syria), justified this based on custom: ibid., 91. Robert Brunschwig, an important scholar of Maghribi history and law, gave a brief account of written evidence in Islamic law that adhered to Tyan's general conclusions, though he provides few details: “Le système de la preuve en droit musulman,” in Brunschvig, Robert, ed., Etudes d'islamologie (Paris: Editions G.-P. Maisonneuve et Larose, 1976), 201–18, 215–16.
39 Johansen, “Formes de langage,” 334–35.
40 In this respect, Tyan would have merely demonstrated the old adage about the separation between legal theory and legal reality in the Islamic world. On this, see especially Schacht, Introduction to Islamic Law.
41 Tyan, Le notariat, 76; see also Messick, Calligraphic State, 205–6.
42 Bargaoui, Sami, “Les titres fonciers dans la régence de Tunis à l’époque moderne: Interrogations autour d'une mutation documentaire,” Revue de l'Institut des belles-lettres arabes 74, 208, no. 2 (2011): 165–85. Bargaoui identifies the shift toward the preservation of documents as occurring after the Ottoman conquest of Tunisia in 1574 (178–80).
43 See Messick, Calligraphic State, 205–6.
44 Müller, “Ecrire pour établir la preuve orale,” see, for example, 67.
45 Schacht, Introduction to Islamic Law, 192–93; Santillana, David, Istituzioni di diritto musulmano malichita, con riguardo anche al sistema sciafiita, 2 vols. (Rome: Istituto per l'oriente, 1925–1938), v. 1, 100–1.
46 See, for example, Stillman, Norman, The Jews of Arab Lands in Modern Times (Philadelphia: Jewish Publication Society, 1991), 4–5 : Abitbol, Michel, “Jews and Arabs in Colonial North Africa,” in Parfitt, Tudor, ed., Israel and Ishmael: Studies in Muslim-Jewish Relations (Richmond, Surrey: Curzon Press, 2000), 130, 132.
47 See, for example, Tucker, Judith E., In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998).
48 See, for example, Assaf, Simḥa, Batei ha-din ve-sidreihem aḥarei ḥatimat ha-Talmud (Jerusalem: Defus ha-po‘alim, 1924), 11–24 ; Katz, Jacob, Exclusiveness and Tolerance: Studies in Jewish-Gentile Relations in Medieval and Modern Times (Springfield, N.J.: Behrman House, 1961), 52–55 ; Finkelstein, Louis, Jewish Self-Government in the Middle Ages (New York: P. Feldheim, 1964).
49 Simonsohn, Uriel I., A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of Pennsylvania Press, 2011).
50 On Jews in Ottoman Islamic courts, see, e.g., Cohen, Amnon, A World Within: Jewish Life as Reflected in Muslim Court Documents from the Sijil of Jerusalem (XVIth Century), 2 vols. (Philadelphia: Center for Judaic Studies, University of Pennsylvania, 1994); and subsequent compilations in Hebrew published by Yad Izhak Ben-Zvi; Gerber, Haim, Crossing Borders: Jews and Muslims in Ottoman Law, Culture, and Society (Istanbul: Isis Press, 2008), ch. 2. On similar studies of Christians in Ottoman shari‘a courts, see, e.g., Jennings, Ronald C., “Zimmis (Non-Muslims) in Early 17th Century Ottoman Judicial Records: The Sharia Court of Anatolian Kayseri,” Journal of the Economic and Social History of the Orient 21, 3 (1978): 225–93; Gradeva, Rossitsa, “Orthodox Christians in the Kadı Courts: The Practice of the Sofia Sheriat Court, Seventeenth Century,” Islamic Law and Society 4, 1 (1997): 37–69 .
51 Simonsohn, A Common Justice; Marglin, Jessica M., “Jews in Sharīʿa Courts: A Family Dispute from the Cairo Geniza,” in Franklin, Arnold et al. , eds., Jews, Christians and Muslims in Medieval and Early Modern Times; A Festschrift in Honor of Mark R. Cohen (Leiden: Brill, 2014), 207–25; Wagner, Mark S., Jews and Islamic Law in Early 20th-Century Yemen (Bloomington: Indiana University Press, 2015).
52 See especially Hacker, Joseph, “Jewish Autonomy in the Ottoman Empire, Its Scope and Limits: Jewish Courts from the Sixteenth to the Eighteenth Centuries,” in Levy, Avigdor, ed., The Jews of the Ottoman Empire (Princeton: Darwin Press, 1994), 153–202 ; Al-Qattan, Najwa, “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination,” International Journal of Middle Eastern Studies 31, 3 (1999): 429–44; Richard Wittmann, “Before Qadi and Vizier: Intra-Communal Dispute Resolution and Legal Transactions among Christians and Jews in the Plural Society of Seventeenth Century Istanbul” (PhD diss., Harvard University, 2008).
53 Goitein, Shlomo Dov, A Mediterranean Society, 5 vols. (Berkeley: University of California Press, 1967–1988), v. 2, 400.
54 Marglin, Across Legal Lines, 80–88.
55 Al-Qattan, “Dhimmis,” 437. See also Cohen, Amnon, Jewish Life under Islam: Jerusalem in the Sixteenth Century (Cambridge: Harvard University Press, 1984), 122; Gradeva, “Orthodox Christians,” 67; Kuran, Long Divergence, 229–31.
56 Mahmood, Saba, “Religious Freedom, the Minority Question, and Geopolitics in the Middle East,” Comparative Studies in Society and History 54, 2 (2012): 418–46; Marglin, Jessica M., “A New Language of Equality: Jews and the State in Nineteenth-Century Morocco,” British Journal of Middle Eastern Studies 43, 2 (2016): 158–75. For an example of the lachrymose view, see Ye‘or, Bat, The Dhimmi: Jews and Christians under Islam (Rutherford: Fairleigh Dickinson University Press, 1985), 56–57 .
57 Part of the French colonial judicial reforms involved implementing regulations concerning record-keeping in Moroccan shari‘a courts. See Marglin, Across Legal Lines, 181.
58 On the lack of record-keeping by either ‘udūl or qāḍīs, see Mercier, Louis, “L'administration marocaine à Rabat,” Archives Marocaines 7 (1906): 350–401 , 394–96; Caillé, Jacques, Organisation judiciaire et procédure marocaines (Paris: Librairie générale de droit et de jurisprudence, 1948), 19; Buskens, Léon, “Mālikī Formularies and Legal Documents: Changes in the Manuscript Culture of the ‘Udūl (Professional Witnesses) in Morocco,” in Dutton, Yasin, ed., The Codicology of Islamic Manuscripts (London: Al-Furqān Islamic Heritage Foundation, 1995), 137–45, 140. See also Direction des Archives Royales (Mudirīyat al-wathā’iq al-mālikīya, Rabat, Morocco), Safi, Italian consul in Safi to al-Ṭayyib b. Hīma, 10 Rabī‘ II 1299/1 Mar. 1882.
59 There is no clear reason why relatively few archival documents survived from before the nineteenth century. I strongly suspect that this is merely the result of physical degradation. The few archival sources I have found from the eighteenth century are mostly similar to those from the nineteenth century, but because my archival sources only stretch back to the nineteenth century it is difficult to know when the reliance on documentary evidence began or under what circumstances. I do, however, think that Moroccan shari‘a courts’ reliance on documentary evidence predated European influence on the Moroccan legal system; elsewhere, I have traced ways in which the spread of Western consular courts in Morocco influenced the practices of local shari‘a courts, and there is no indication that the probative nature of documentary evidence stemmed from this encounter. On the contrary, consular courts adapted practices of shari‘a courts: see Marglin, Across Legal Lines, esp. 157–66; and idem, “Extraterritoriality Meets Islamic Law: Legal Pluralism and Elements of Proof in the International Mixed Court of Morocco, 1871–2,” Quaderni Storici 51, 3 (2016): 673–700 .
60 Paul Dahan, of the Centre de la Culture Judéo-Marocaine in Brussels, has built up an impressive personal collection of Judaica and Jewish manuscripts from Morocco, including many Jewish and Islamic legal documents. Dahan acquired the vast majority of his collection from dealers in Morocco, Europe, and Israel. Similarly, the Judaica Collection at Yale Library recently purchased from dealers in Jerusalem a large collection of Jewish manuscripts from North Africa, including legal documents from Morocco (mostly in Hebrew, but some in Arabic). Some documents destined for destruction were fortuitously saved: Professor Leon Buskens explained to me that he found two large boxes full of manuscript documents in Hebrew, Arabic, and Judeo-Arabic, including many legal documents, in a scrap paper heap in Marrakesh. Luckily, he was able to buy the lot, which is now preserved in the Special Collections division of the Library of the University of Leiden (catalogue nos. Or.26.543 [1 and 2]).
61 Estimates put Morocco's total population at between 2.75 million and ten million, and the most reliable estimates put the Jewish population at around 180,000; Parsons, Frederick V., The Origins of the Morocco Question, 1880–1900 (London: Duckworth, 1976), 539.
62 There were a limited number of banks in Tangier after 1900, but these mainly served to send money abroad or change currency and did not disrupt older forms of credit extension in cities like Fez; Lahlou, Abdelwahab, “Note sur la banque et les moyens d’échanges commerciaux à Fès avant le Protectorat,” Hésperis 24 (1937): 223–32, 228–30; Tourneau, Roger Le, Fès avant le protectorat: étude économique et sociale d'une ville de l'occident musulman (Rabat: Editions La Porte, 1987), 289–90.
63 Jews were not solely responsible for lending money in Morocco; Muslim merchants also extended credit to their clients. However, Jews were disproportionately represented among the country's network of merchants who sold primarily on credit: Kenbib, Mohammed, Juifs et musulmans au Maroc, 1859–1948 (Rabat: Faculté des lettres et des sciences humaines, 1994), 253–62; Ennaji, Mohammed, Expansion européenne et changement social au Maroc: (XVIe–XIXe siècles) (Casablanca: Editions Eddif, 1996), 60–65 .
64 Aside from some markedly low years (from 1868–1869/1285 AH, 1872–1875/1289–1291 AH, 1876/1293 AH, and 1881–1882/1299 AH), between 1864 and 1883, Shalom averaged about forty-nine visits to a shari‘a court per year. (Including the remarkably low years, Shalom averaged thirty-nine entries per year between 1281 and 1300 AH.) Bills of debt for goods sold on credit account for the majority of the collection, and were the single most common type of document sought out by the Assarrafs (constituting 64 percent of the total: 1,229 documents out of 1,930 are bills of debt). Other types of legal documents relate to commerce—sales of property, releases for debts paid, attestations to the collection of debts, partnerships—and constitute 9 percent of the total (173 out of 1,930). Another 25 percent of the collection records aspects of litigations, almost all of which concerned Muslims who had defaulted on debts: these include records of trials (maqāl) and lafīf documents (235), and guarantees for payment or appearances in court (249).
65 In a sample of 295 nineteenth-century legal documents notarized by ‘udūl that involved Jews, 82 percent concerned commercial relations with Muslims. These documents come from three archival collections: the private collection of Paul Dahan at the Centre de la Culture Judéo-Marocaine in Brussles; the special collections of the University of Leiden Library (Or.26.543 (1 and 2) and Or.26.544); and the archives of the Yad Ben Zvi library in Jerusalem.
66 For a brief, contemporary description of procedure in Moroccan shari‘a courts, see Maeterlinck, Albert, “Les institutions juridiques au Maroc,” Journal de droit international privé (1900): 477–83, 478–79.
67 This plea was sometimes included as part of the original maqāl, though at other times it was written in a separate entry, almost always of the same date. One exception is the maqāl from TC, file #3, 21 Rajab 1329/7 July 1911: this long, drawn-out case was brought by Ya‘akov Assarraf and his associate Eliyahu b. ‘Azūz Kohen against al-Jilālī b. Aḥmad b. al-Faqīh b. ‘Ab (?) al-Zarhūnī al-‘Asārī. Before pleading, al-Jilālī had a number of questions about the claim, and it was not until 4 Ramaḍān (six weeks later) that he finally pled not guilty. This procedure was quite similar to that observed in kadı courts of Ottoman Empire: see, for example, Jennings, “Limitations,” 172–73.
68 In eleven out of the twenty-three cases recorded in the Assarraf collection in which a debtor acknowledged a debt (i.e., pleaded guilty) the debtor also claimed bankruptcy.
69 For another such case, see TC, file #2, 19 Jumādā II 1298/19 May 1881.
70 TC, file #6, 19 Rabī‘ II 1292/25 May 1875.
71 Al-‘Arabī’s brother ‘Alī guaranteed the debt on 2 Jumādā I 1292/6 June 1875. Even when al-‘Arabī and al-Mu‘tī produced a lafīf—the recorded testimony of twelve Muslim men—attesting that the debt was for only 1,500 riyāls, the qāḍī remained unmoved. In another case, in which one of Ya‘akov's creditors claimed he had been charged an even higher rate of hidden interest, the qāḍī completely ignored the creditor's claims and ruled that he had to guarantee the entire debt as it was recorded in the legal document (TC, file #1, 30 Rabī‘ I 1309/3 Nov. 1891). See also TC, file #7, 4 Sha‘bān 1284/1 Dec. 1867; and file #8, 26 Ṣafar 1293/23 Mar. 1876.
72 I have yet to find records that specify what sort of proof was brought; most trail off after the initial claim was made.
73 TC, file #2, 17 Rabī‘ II 1283/29 Aug. 1866. For other lawsuits involving documents, see TC, file #1, 11 Jumādā I 1296/3 May 1879; file #3, 29 Jumādā I 1296/21 May 1879; 16 Shawwāl 1300/20 Aug. 1883; 12 Ṣafar 1314/23 July 1896; 8 Jumādā II 1320/12 Sept. 1902; 21 Rajab 1329/18 July 1911; file #5, 4 Rabī‘ I 1297/15 Feb. 1880.
74 Tyan, Le notariat, 84; Messick, Calligraphic State, 205–6. The exact nature of the process by which ‘udūl in Morocco came to act as professional notaries public is unclear, and further research on this history is needed.
75 Tyan, Emile, Histoire de l'organisation judiciaire en pays d'Islam (Leiden: Brill, 1960), 239–41.
76 Park, Thomas Kerlin, “Indirass and the Political Ecology of Flood Recession Agriculture,” in Nyerges, A. Endre, ed., The Ecology of Practice: Studies of Food Crop Production in Sub-Saharan West Africa (London: Routledge, Taylor and Francis Group, 1997), 77–96 , 81. In Morocco, the two witnesses necessary for a contract to be valid were also the ‘udūl who wrote up and signed the document; in Yemen, however, the witnesses were separate from the document writer (see Messick, Calligraphic State, 229–30).
77 Mark Wayne Steinhoff, “Origins and Development of the Notariate at Ravenna (Sixth through Thirteenth Centuries)” (PhD diss., New York University, 1976), 3. See also Burns, Robert Ignatius, Jews in the Notarial Culture: Latinate Wills in Mediterranean Spain, 1250–1350 (Berkeley: University of California Press, 1996), 38–40 .
78 Le Tourneau, Fès avant le protectorat, 214. By contrast, in Yemen there was no formal state oversight of document writers (Messick, Calligraphic State, 224).
79 Péretié, A., “L'organisation judiciaire au Maroc,” Revue du monde musulman 13, 3 (1911): 509–31, 522; Le Tourneau, Fès avant le protectorat, 215. See also Messick, Calligraphic State, 205–6, 208.
80 On the Mixed Court, see Marglin, “Extraterritoriality.”
81 Archivio Generál de la Administración (Alcalá de Henares, Spain), Caja M 9, Exp. no. 1 (81/9), Diario del Tribunal Marroquí, p. 4, 23 Nov. 1871. Ibn Sūda further specified that the signatures of ‘udūl should be countersigned by a qāḍī, a practice that does not seem to have been widespread in nineteenth-century Morocco and might even have been introduced under European pressure (see Péretié, “L'organisation judiciaire au Maroc,” 522). Sami Bargaoui notes that under normal circumstances documents signed by ‘udūl did not require authentication by a qāḍī unless they were part of litigation, in which case the qāḍī would countersign them a posteriori (Bargaoui, “Les titres fonciers,” 180–81).
82 Santillana, Istituzioni, 2: 603. The practice of relying on a lafīf instead of two ‘udūl became widely accepted in the Maghrib over the course of the fifteenth and sixteenth centuries; Milliot, Louis, Recueil de jurisprudence chérifienne, 3 vols. (Paris: Editions Ernest Leroux, 1920), v. 1, 119.
83 There are many such lafīf documents in the Assarraf collection; see, for example, TC, file #5, lafīf from 18 Rabī‘ II 1291/4 June 1874 and file #10, 23 Sha‘bān 1294/2 Sept. 1877.
84 TC, file #1, 1 Rabī‘ I 1297/2 Feb. 1880 (and the entry on the same page dated 19 Rabī‘ I 1297/1 Mar. 1880).
85 TC, file #2, 23 Jumādā II 1298/23 May 1881.
86 Amar, Emile, L'organisation de la propriété foncière au Maroc: Etude théorique et pratique (Paris: Paul Geuthner, Editeur, 1913), 125. That Amar observed the use of documents in cases concerning real estate suggests that the cases I found concerning unpaid debts were representative of Moroccan shari‘a court procedure on the whole, and did not only represent debt litigation.
87 Ibid., 129. For Amar's full discussion of procedure, see 127–35.
88 The National Archives of the United Kingdom, Foreign Office records, London (hereafter FO), 631/3, Carstensen to Hay, 10 Mar. 1866.
89 E.g., FO, 631/3, William James Elton to John Drummond Hay, 1 Mar. 1864; Centre d'Archives Diplomatiques de Nantes (Nantes, France), Tanger B 986, P. Achille Gambaro to Auguste Beaumier, 10 Jan. 1870; Tanger B 1002, 16 Rajab 1291/29 Aug. 1874.
90 al-Kattānī, Ja‘far b. Idrīs, Al-Dawāhī al-madhiyya lil-firaq al-maḥmiyya: fī al-walā’ wa-’l-barā’ (Amman: Dār al-Bayāriq, 1998); Al-Manūnī, Muḥammad, Maẓāhir yaqẓat al-Maghrib al-ḥadīth, 2 vols. (Beirut: Dār al-Gharb al-Islāmī, 1985), v. 1, 321–34; Kenbib, Mohammed, Les protégés: contribution à l'histoire contemporaine du Maroc (Rabat: Faculté des lettres et des sciences humaines, 1996), 215–24; Terem, Etty, Old Texts, New Practices: Islamic Reform in Modern Morocco (Palo Alto: Stanford University Press, 2014), ch. 4.
91 Marglin, Across Legal Lines, 167–69; and “Extraterritoriality.”
92 The sultan Mawlāy Ḥasan (r. 1873–1894) established a rule that Muslims who had acquired foreign protection were ineligible to serve as ‘udūl: see al-Mālikīya, Mūdirīyat al-Wathā’iq, Al-Wathā’iq (Rabat: al-Maṭba‘a al-mālikīya, 1977), v. 4, 426–27.
93 See note 50 citations.
94 Similarly, the extensive literature on Jewish merchants’ use of Islamic law in the medieval Mediterranean, based on documentary evidence from the Cairo Geniza, focuses on questions of whether or not, and to what extent, Jews relied on legal institutions, and if so which ones. But this literature does not engage with the experience of Jews in those Islamic legal institutions, including whether they suffered from restrictions regarding their use of evidence, and if so, how they got around them. For instance, Avner Greif concludes that medieval Jewish merchants did not rely primarily on legal institutions; see esp. “Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders,” Journal of Economic History 49 (1989): 857–82; and idem, “Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders’ Coalition,” American Economic Review 83, 3 (1993): 525–48. Goldberg, Jessica emphasizes the importance of a range of institutions, including legal ones, in Trade and Institutions in the Medieval Mediterranean: The Geniza Merchants and Their Business World (Cambridge: Cambridge University Press, 2012). Ackerman-Lieberman, Phillip I. argues that Jews relied more on Jewish legal institutions than on Islamic ones, in The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt (Stanford: Stanford University Press, 2014).
95 Boum, Aomar, Memories of Absence: How Muslims Remember Jews in Morocco (Stanford: Stanford University Press, 2013), 51.
96 I know of no detailed account of the development of Mālikī jurisprudence on this issue. Moreover, why Mālikī jurists were, from very early on, more willing to rely on documents than other schools remains an open question.
97 Bargaoui, “Les titres fonciers,” 171–72. Ibn Farḥūn, for example, cites a number of authorities claiming that Imam Mālik (d. 795), the eponymous founder of the school, permitted reliance on written evidence (though a minority among Mālikī scholars claim that Mālik did not permit written evidence: Farḥūn, Ibrāhīm Ibn, Tabṣīra al-ḥukkām fī uṣūl al-aqḍīya wa-manāhij al-aḥkām, 2 vols. (Riyadh: Dār al-kutub al-‘ilmīya, 2003), v. 1, 304. Ibn Farḥūn also relies on Saḥnūn (Abū Sa‘īd ‘Abd al-Salām b. Sa‘īd al-Tanūkhī, d. 855), one of the most important Mālikī scholars, credited with spreading the Mālikī school to the Maghrib. On Saḥnūn, see Farḥūn, Ibrāhīm Ibn, Al-dībāj al-mudhhab fī ma‘rifa a‘yān ‘ulamā’ al-madhhab (Beirut: Dār al-kutub al-‘ilmīya, 1996), 263–68; and Talbi, M., “Saḥnūn,” in Bearman, P., et al. , eds., Encyclopedia of Islam (Leiden: Brill, 2003).
98 Ibn Farḥūn, Tabṣīra al-ḥukkām, v. 1, 303. See also Tyan, Le notariat, 67.
99 On the attribution to Ibn Shas, see al-Ḥasan al-Nubāhī, Abū al-Ḥasan b. ‘Abdallāh b., Tārīkh quḍāt al-andalus (Beirut: Al-Maktab al-tijārī lil-ṭabā‘a wa-’l-nashar wa-’l-tūzī‘, 1967), 199.
100 Ibn Farḥūn, Tabṣīra al-ḥukkām, v. 1, 304.
101 Ibid., 305.
102 Ibid., 307.
103 Ibid., 309.
104 Carmona, A., “al-Nubāhī (or, More Probably, al-Bunnāhī),” in Bearman, P., et al. , eds., Encyclopedia of Islam (Leiden: Brill, 2003).
105 al-Nubāhī, Tārīkh quḍāt al-andalus, 197–206. Al-Nubāhī covers much of the same ground as Ibn Farḥūn, but also treats questions such as what happens to a scholar who is found with anti-shari‘a philosophical writing in his home (201–22).
106 See esp. ibid., 203–5.
107 Ibid., 204.
108 Al-Nubāhī was so minor that even the correct orthography of his name is disputed (some argue for “al-Bunnāhī”); see Carmona, “al-Nubāhī.”
109 al-Qurtubī, Muḥammad b. Aḥmad, Al-jāmi’ li-aḥkām al-qur’ān wa-’l-mubayyin limā taḍammanahu min al-sunna wa-āy al-furqān, 24 vols. (Beirut: Al-Resalah Publishers, 2006), v. 11, 426–27. On the school's position more generally, see: al-Rizqī, Muḥammad al-Ṭāhir, Mutaṭallabāt al-shahāda ‘alā al-mashhūd ‘alayhi (Riyadh: Maktabat al-Rushd, 1998), esp. 112–13. Al-Rizqī seems to suggest that the other schools’ eponymous founders also accepted this practice, though he does not detail these schools’ respective jurisprudential traditions (113–14).
110 Rapoport, Yossef, “Royal Justice and Religious Law: Siyāsah and Shari‘ah under the Mamluks,” Mamluk Studies Review 16 (2012): 71–102, 78.
111 Bargaoui, “Les titres fonciers,” 172.
112 Ibid., 173. This is similar to what Messick observes for Yemen (Calligraphic State, 223).
113 Thomas Park argues that only the last, and oral, testimony concerning a given document was valid, though there is convincing evidence that this was not always the case: Park, “Indirass,” 81–82.
114 Messick, Calligraphic State, 215.
115 Lydon, “Paper Economy of Faith,” 655–57.
116 Bedos-Rezak, Brigitte Miriam, “Medieval Identity: A Sign and a Concept,” American Historical Review 105, 5 (2000): 1489–1533 .
117 Holdsworth, William, A History of English Law, 16 vols. (London: Methuen & Co., 1926), v. 9, 130–31. See also Langbein, John H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1168–202, 1194.
118 Quoting Rousseau: Derrida, Of Grammatology, 7.
119 Ibn Farḥūn, Tabṣīra al-ḥukkām, v. 1, 303.
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