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Across Legal LinesJews and Muslims in Modern Morocco$

Jessica M. Marglin

Print publication date: 2016

Print ISBN-13: 9780300218466

Published to Yale Scholarship Online: May 2017

DOI: 10.12987/yale/9780300218466.001.0001

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The Law of the Market

The Law of the Market

Chapter:
(p.53) Chapter Two The Law of the Market
Source:
Across Legal Lines
Author(s):

Jessica M. Marglin

Publisher:
Yale University Press
DOI:10.12987/yale/9780300218466.003.0003

Abstract and Keywords

This chapter focuses on the Assarrafs and the ways in which they engaged Muslim notaries public and shariʻa courts to sustain their quotidian business dealings. It shows that Jewish merchants like Shalom and Yaʻakov Assarraf used local Islamic legal institutions frequently because of their extensive commercial relations with Muslims. The absence of a formal banking system and the increasingly short supplies of cash, especially in rural areas, meant that Jewish merchants sold most of their wares on credit. In order to ensure that extending credit would be profitable, Jewish merchants relied on shariʻa courts to document and enforce the debts they accumulated. Islamic legal institutions were thus central to how Jewish merchants did business.

Keywords:   Assarrafs, Assarraf family, shariʻa courts, Muslim notaries public, Jewish merchants, Jewish businesses, Islamic legal institutions, credit

ON THE 20TH OF MAY, 1880, Shalom Assarraf appeared in the shari‘a court of Fez. By this time he was a wealthy merchant and president of Fez’s Jewish community. On this particular Thursday he was acting as the legal representative of his nephew Maymon ben Mordekhai Assarraf. Maymon had gotten in a bit over his head on a business deal. He bought a pair of earrings from Ahmad b. Muhammad Fathan al-‘Alawi al-Imrani for the not inconsiderable sum of twenty French riyāls. Maymon had been under the impression that the earrings were made of gold and contended that this was a condition of the sale. But after he took possession of the earrings, Maymon “discovered that they were in fact made of copper.” One can easily imagine what might have taken place: the younger and more inexperienced Maymon eagerly showing off what he thought was a great bargain—a pair of gold earrings for just twenty riyāls!—only to be told by those with more expertise, perhaps even Shalom himself, that the earrings were copper and thus almost worthless. One can further imagine Maymon’s relief when he secured the legal advice of his uncle Shalom, a man so expert in the workings of shari‘a courts that even Muslims had appointed him as their lawyer. In court, Shalom accused Ahmad of having tricked his nephew; Ahmad countered that he had only charged four riyāls and ten ‘uqīyas—presumably a reasonable sum for a pair of copper earrings. After the initial depositions, (p.54) the parties reached a settlement out of court, agreeing that Maymon would return the earrings and Ahmad would return the money. Although the qadi never issued a ruling, Shalom’s lawsuit undoubtedly helped persuade Ahmad to settle. Maymon also had his uncle to thank for the resolution; as a successful merchant who did much of his business with Muslims, Shalom was intimately familiar with the workings of shari‘a courts and undoubtedly drew on this knowledge to help get his nephew a satisfactory settlement.1

The lawsuit between Shalom and Ahmad reflects Jews’ role as economic actors beyond the walls of the Jewish quarter. Shalom was in court because his nephew was doing business with a Muslim—something that was entirely ordinary in nineteenth-century Morocco. Commerce was one of the main ways in which Jews interacted with Muslims; indeed, Jews were so integrated into the broader Moroccan economy that they played a central role in the functioning of trade both in urban centers and in the hinterlands. Moreover, Jews’ importance to commerce only grew as the nineteenth century wore on. The increasing internationalization of trade opened up new markets for imported goods throughout Morocco, from the largest urban centers to the most remote tribal areas. Jewish merchants were particularly well positioned to take advantage of this booming import-export economy.

But commerce was not the only tie binding Shalom and Ahmad together; they were linked as litigants who brought their dispute before an Islamic legal forum. There was nothing unusual about Jews like Shalom appearing before a qadi. Islamic law required that all cases concerning Muslims—including those between Muslims and Jews—be adjudicated according to the precepts of the shari‘a. The regular commercial ties linking Jews and Muslims meant that Jews had frequent occasion to engage the services of shari‘a court officials, especially Jewish merchants like the Assarrafs. Some, like Shalom, acquired an intimate knowledge of Islamic law and legal procedure along the way.

Jews’ use of shari‘a courts is doubly invisible in scholarly literature: first, because most Jewish historians privileged the internal workings of Jewish communities, and second, because most scholars of Islamic law portrayed shari‘a courts as primarily, if not entirely, Islamic institutions. The scholars who have examined Jews’ presence in shari‘a courts have focused on the relatively rare instances in which Jews brought intra- (p.55) Jewish cases before a qadi, cases that should normally have been adjudicated in Jewish courts.2 Yet the archival record demonstrates that Jews were a regular presence in shari‘a courts even without defying the jurisdictional boundaries separating Jewish and Islamic legal institutions. Jews most often went to shari‘a courts because they participated in the economic life of Morocco and thus had regular business dealings with Muslims. And Jews’ access to Islamic legal documents and shari‘a courts facilitated the commercial relationships linking them to Muslims.3

The regular use that Jews made of shari‘a courts is central to understanding their integration into the Muslim-majority society in which they lived. Jews were separated from Muslims by boundaries both physical and symbolic; the walls surrounding the millāḥ in Fez and other major cities were real, as were the legal and social divisions marking Jews as different, other. But these boundaries were punctuated by doors linking Jews to the world outside the Jewish quarter; each millāḥ had a gate through which Jews passed on their way to the marketplaces and courtrooms of the Muslim quarters. Just as trade constituted a vector connecting Jews and Muslims, so did law. Islamic legal institutions were a central site of Jews’ integration into the broader society, and thus key to understanding the nature of Jewish-Muslim relations in Morocco.

Jews’ presence in shari‘a courts is particularly significant precisely because of the Islamic nature of these institutions. By the nineteenth century the Moroccan economy was highly international, with Jews and foreign Christians playing central roles. Yet shari‘a courts have not been viewed as multi-religious institutions. And in some ways rightly so: they were staffed exclusively by Muslims and applied the sacred law of Islam. Nonetheless, as long as non-Muslims agreed to abide by Islamic law, they had the same rights of access to shari‘a courts as did Muslims—and the Moroccan case shows that they regularly availed themselves of this right. The mono-religious nature of shari‘a courts did not prevent them from serving a multi-religious clientele.

Understanding how law acted as a vector connecting Jews and Muslims requires attention to the intertwined nature of trade and shari‘a courts. The absence of a formal banking system and the increasingly short supplies of cash, especially in rural areas, meant that Jewish merchants sold most of their wares on credit. In order to ensure that extending credit would be profitable, Jewish merchants relied on shari‘a courts (p.56) to document and enforce the debts they accumulated. Islamic legal institutions were thus central to how Jewish merchants did business; they regularly engaged the services of ‘udūl to draw up bills of debt. Jews who were heavily involved in lending money to Muslims often had to sue recalcitrant debtors in qadi courts, an endeavor that required considerable knowledge of Islamic law and legal procedure. Ultimately, some Jewish merchants became so skilled at navigating shari‘a courts that Muslims even engaged them as lawyers. The Assarrafs present a particularly illuminating case study of the ways in which law and commerce drew Jews outside of their community and into the broader Islamic society.

The Merchant of Fez

The commercial success of Jews like Shalom Assarraf was due in large part to the changes sweeping the Moroccan economy in the nineteenth century. In particular, Jews played a crucial role in making available—and increasing demand for—imported goods, not only in Morocco’s port cities but in the urban centers of the interior and the countryside surrounding them. While Jews had long participated in trade both inside and outside the Jewish community, the internationalization of the economy offered them even more opportunities to do business with Muslims and placed Jews firmly at the heart of the marketplace.

The bustling markets of Morocco’s great cities are legendary even today, as growing numbers of foreigners who come to lose themselves in the maze-like streets of Fez or Marrakesh can attest. But in the nineteenth century these markets were nothing like the tourist traps they have become in the past few decades; they were the beating heart of Moroccan society, where people came to sell, buy, borrow, loan, lease, mortgage, etc. Merchants were the lifeblood of the economy. They connected the urban bourgeoisie to the rural tribesmen, the artisanal luxuries of the cities to the agricultural and pastoral riches of the countryside, and increasingly as the nineteenth century wore on, Morocco to the rest of the world—especially Europe and the Americas, from whence more and more items made their way into the households of even the most humble Moroccans. At the center of these vast networks of trade that crisscrossed Morocco like so many veins and arteries stood a cadre of elite Jewish merchants. These shrewd businessmen (for they were nearly all men) might have lived their religious lives squarely within the Jewish community, but (p.57) their economic pursuits brought them into the marketplaces where Muslims made up the majority of both buyers and sellers.

The degree to which Moroccan cities and their marketplaces transformed with the influx of European goods and peoples varied considerably. In coastal cities like Tangier and Essaouira, dozens of foreigners from all over Europe and the Americas lived with their families; though many were wealthy import-export merchants, others scraped by in more humble professions such as café owners, maids, construction workers, and even farmers. In cities of the interior like Fez, foreigners were still a rarity. Only six Europeans were permanently settled in Fez in 1889, and their numbers had grown to no more than sixty-four on the eve of French colonization.4 But European products had penetrated Morocco far earlier and far more thoroughly than Europeans themselves. The consumption of many imports remained limited to the Moroccan elite. As part of its efforts to reform the Moroccan military, the Makhzan’s demand for imported firearms and other military equipment grew enormously after the Battle of Isly in 1844. At the turn of the twentieth century, the sultan Mawlay ‘Abd al-‘Aziz became infamous for his love of imported gadgets such as cameras, bicycles, and fireworks, which he bought at great expense.5 The tax hikes that helped pay for these imports, and the corruption of many rural governors who demanded extra to pay for their own costly habits, left many Moroccan peasants caught in a cycle of ever-growing debt.

The cash-flow problems created by higher taxes and extortion were compounded by ordinary Moroccans’ developing taste for imported goods. Some of these imports merely introduced new habits without necessarily displacing indigenous goods; for instance, green tea brewed with mint and sweetened with sugar, still a quintessentially Moroccan drink, was virtually unknown in the Maghrib before the eighteenth century and in the nineteenth century was still a luxury for most. But manufactured products such as textiles, pottery, and even fezzes increasingly replaced local production, hitting both Jewish and Muslim artisans hard. The 1856 treaty with England was a watershed; in abolishing royal monopolies and high tariffs, it opened Morocco’s ports to free trade and to an ever growing deluge of imports. With it came an increasing demand for goods that could not be produced locally—which further heightened the demand for cash among ordinary Moroccans.6

(p.58) While not all the merchants who traded in foreign merchandise were Jewish, Jews were overrepresented among those who made or enlarged their fortunes in the increasingly internationalized market. Jews were especially well positioned to take advantage of the heightened commerce in imported goods. Throughout the early modern period, Jews capitalized on their transnational networks and their multilingualism to act as intermediaries between Europe and Morocco in both trade and diplomacy.7 In the nineteenth century, as Moroccan markets opened even wider to the outside world and foreign powers increased their diplomatic presence, Jews in particular seized the opportunities provided by the rising demand for individuals who could work with both worlds. Most successful were the merchants living in coastal cities who imported European goods and exported raw materials (such as wool, hides, grain, and livestock). After 1860, most of these merchants (Jews and Muslims alike) had acquired patents of foreign protection or foreign nationality, which facilitated trade considerably. One notch down the socioeconomic ladder, merchants on the coasts and in the interior bought in bulk from these large-scale importer-exporters and sold the imported goods to the masses of Moroccan consumers. Finally, below the class of haut bourgeois merchants were armies of peddlers, almost all Jewish, who sold the same imported goods in far smaller quantities. These small-time salesmen lived off the profits that trickled down from Morocco’s wealthiest traders, but they too played a role in changing consumption patterns and bringing imported goods to the most remote areas of the Moroccan hinterland.8

Shalom Assarraf was among the most successful of the haut bourgeois middlemen. His business interests were diversified; he owned real estate and traded in a variety of goods including olive oil, wheat, and wool. But by the 1860s he was specializing in imported cotton textiles, particularly raw (that is, undyed) calico.9 The textile trade in Morocco was one of those most affected by the flood of European imports. More and more Moroccans acquired a taste for cotton textiles milled in European factories, which were of finer quality and cheaper than those produced locally.10 Selling cotton fabric was the mainstay of the family business; Ya‘akov, Shalom’s son and successor, traded mainly in imported cotton textiles too.11 Indeed, Shalom was one of many Jewish merchants in Fez who sold cotton textiles. He bought these goods either (p.59) from wholesalers in Fez or from importers in Tangier, the great port city of the north to which he traveled on occasion.12

While some Jewish merchants did business in their hometown, it was also common to bring their goods to rural areas where their Muslim clients had little or no access to the splendid markets of cities like Fez and Marrakesh. Jews set out on the backs of mules or, if these were prohibitively expensive, on donkeys. The poorest peddlers often left home for months at a time, only returning to celebrate the holidays of Passover and the Jewish New Year with their families and communities.13 All traveling salesmen spent much of their time in villages and towns where no Jews were to be found; they often ate, drank, and slept in the homes of their Muslim clients. While these merchants maintained families in exclusively Jewish contexts, they lived most of their daily lives surrounded entirely by Muslims.

Like so many of their coreligionists, the Assarrafs did much of their business with Muslims who lived in the countryside surrounding Fez. The men of the family ventured outside the city walls for extended trips, riding on mules or even horses (despite the prohibition on dhimmīs riding such noble beasts).14 Shalom might have been the president of the Jewish community, but his commercial life was lived largely among Muslims. When he was not bringing his wares to Muslim clients in nearby rural communities, he spent much of his time trading with Muslims in Old Fez. Nor was Shalom unique in this respect; many successful Jewish merchants in nineteenth-century Morocco became wealthy by selling imported goods to a predominantly Muslim clientele.

Law and the Art of Commerce

Behind the boom in trade that accompanied (largely forced) market liberalization and the development of an increasingly voracious appetite for imports, an elaborate network of Islamic legal institutions quietly facilitated the smooth flow of commerce. Muslim notaries and shari‘a courts provided the institutional support linking the markets of Fez and Marrakesh to the cotton mills of Manchester to the most remote dwellers of the Atlas Mountains and the pre-Sahara. ‘Udūl documented the web of mutual obligations that tied individuals together, and qadis arbitrated any disagreements about these commitments that might arise—all according to the precepts of Islamic law. Merchants who were heavily (p.60) involved in trade necessarily became regular consumers of the services of shari‘a courts, regardless of their faith. This was especially true of those merchants who sold most of their goods on credit and engaged in other forms of moneylending. Indeed, more and more inhabitants of the countryside found themselves borrowing cash or buying on credit. Jewish merchants in particular increasingly extended credit to their cash-starved Muslim clients—which brought them before ‘udūl and qadis even more frequently. Notarizing bills of debt with ‘udūl meant that Jewish merchants could draw on the authority of shari‘a courts should their debtors fail or refuse to pay. Islamic legal institutions were thus as central to the commercial lives of Jews as they were to those of Muslims.

As we have seen, the jurisdiction of shari‘a courts extended far beyond commerce; they dealt with a wide range of noncommercial matters including marriage, divorce, inheritance, and even aspects of criminal law. But Jews used Islamic courts mainly for commercial purposes. Only rarely did Jews bring matters of family law such as marriage or divorce to ‘udūl or qadis, and then only when they concerned other Jews (discussed in the following chapter). Shari‘a courts mostly functioned as commercial courts for Jews because commerce was the principal medium connecting Jews with Muslims on a quotidian basis. This is why Jewish women—who rarely entered into commercial relations with Muslims—were largely absent from shari‘a courts.

The centrality of ‘udūl and qadis to commerce in Morocco stemmed in part from the double role that merchants played as both traders and moneylenders. Many of the Muslims to whom the Assarrafs sold their exotic calicos were humble folk, farmers and shepherds who lived mostly in a subsistence economy. Yet as consumption patterns among even the poorest Moroccans changed, there was an increasing demand for imported goods. People who had little cash on hand still wanted to buy products from abroad, like milled textiles and tea. Morocco had no banks that could lend such people money; in the 1890s a few banks opened in Tangier, but even these catered almost exclusively to foreigners and elite Moroccans involved in international trade.15 Yet the absence of ready cash did not halt the wheels of commerce in the Moroccan countryside. As happened in countless preindustrial societies, the merchants of nineteenth-century Morocco doubled as bankers.16 Instead of collecting payment for their goods upon delivery, they sold their wares (p.61) on credit. The Assarrafs moved all sorts of merchandise this way: cotton textiles, naturally, but also silk, raw wool, grains, olives, and even coffee. Most clients pledged to come up with the full price of the goods in one to six months, but loan periods ranged from fifteen days to two and a half years.17 Owing money for goods sold on credit was as normal in nineteenth-century Morocco as charging purchases to a credit card is in much of the world today.

Once merchants were already extending credit for their wares, many also branched out into other types of loans. Jews like the Assarrafs made straightforward loans of cash (known as a salaf).18 They also gave advances to shepherds for their wool and to farmers for their wheat, agreeing to have the items delivered to them by a certain date (a type of loan known as a salam).19 The nature of these advances meant that they often benefited the creditor more than the debtor, since the creditor bought the goods before they were available on the market and thus could set his price. Indeed, many debtors who agreed to salam loans did so out of a desperate need for cash. As the nineteenth century wore on, increasing numbers of peasants found themselves caught in an endless cycle of salam loans—each year selling their produce before the harvest in order to pay off their debts from the previous year.20

Extending credit involved a risk that buyers would not repay their debts. Merchants like the Assarrafs needed some assurance that they could extract payment from those unwilling or unable to pay when their debts came due. The services of ‘udūl provided merchants with the documentation necessary to prove that they were owed money, and shari‘a courts served as the fora in which to pursue debtors who failed to pay.

For each sale of goods on credit, the seller and the buyer attested their transaction before ‘udūl, who drew up a bill of debt that conformed to the standards of Islamic law. The resulting document recorded the date, the names of the buyer(s) and the seller(s), the goods exchanged, and the price. Most specified when the loan was to be repaid, and some included a physical description of the debtor, presumably to make it easier to identify him should litigation become necessary. Many bills of debt also included the name of a guarantor who ensured payment of the debt in the event that the debtor defaulted (though in some cases a guarantor for payment was specified at a later date).21 The ‘udūl’s signatures ensured that these legal documents would hold up as evidence in court, (p.62) should one of the parties contest the details of the exchange. For a successful merchant like Shalom, then, business meant engaging the services of ‘udūl over and over again—indeed, each time he engaged in a commercial transaction.

Jewish merchants like the Assarrafs found themselves in the offices of Islamic notaries public or courtrooms quite a bit. At the height of his career, Shalom had so many commercial dealings that he sought out either ‘udūl or a qadi on average once a week.22 Most of the time, he went to ‘udūl to have contracts drawn up and notarized.23 His appearances before qadis were more infrequent, though not exactly rare. For instance, over the course of a single Islamic year (1283 AH, May 1866 to May 1867), Shalom went to a qadi court three times and to ‘udūl thirty-nine times.24 Shalom’s regular use of Islamic legal institutions was in fact quite common among merchants of his caliber, although he solicited the services of ‘udūl and qadis more often than humbler Jews who pursued fewer commercial transactions.25 Shari‘a courts and the offices of ‘udūl were not strange places for people like Shalom Assarraf; on the contrary, like today’s banks and post offices, they were institutions to which Jewish merchants were thoroughly accustomed.

All these visits to ‘udūl produced hundreds of pieces of paper: the Assarraf collection alone includes 1,229 bills of debt and bills of sale on credit (making up about 64 percent of the collection).26 In addition to documenting the initial debt agreements, Jewish merchants also obtained written evidence of the fulfillment of financial obligations. These quittances (ibrā’a or barā’a) often followed the payment of a debt in full or the dissolution of a partnership. Like bills of debt, quittances could prove crucial if a case went to court, though they usually worked in the interest of the debtor more than the creditor (if a creditor claimed that his debtor had yet to pay, for instance, the debtor could refute the charge by producing a quittance proving that he had no further financial obligations toward the creditor).27 Even more astonishingly, the deeds that make up the Assarraf collection represent only a fraction of all the legal documentation the family accumulated during the sixty years before the Protectorate; the collection is manifestly incomplete, and lacks any of the Jewish legal documents that the family acquired (discussed further in Chapter 3).

Keeping track of all this paperwork was no small task. Merchants developed their own filing systems that allowed them to organize their (p.63) legal documents so they could be produced in a court should the need arise. But Jews were faced with a particular challenge; while they spoke a dialect of Moroccan Arabic and could thus communicate perfectly well with ‘udūl, qadis, and other court officials, the vast majority could not read the Arabic alphabet. For Jewish merchants, then, the hundreds of Islamic legal documents they accumulated might as well have been written in Sanskrit. They could have asked literate Muslims to read their documents for them, but this was not only a major inconvenience, it risked exposing sensitive business information to individuals outside their inner circles. Jewish merchants solved this problem by writing short summaries of the contents on the backs of the documents in Judeo-Arabic (or, in the north, in Judeo-Spanish). For instance, Shalom’s Judeo-Arabic summary of the lawsuit in which he represented his nephew Maymon (and with which this chapter began) reads thus: “This is the record of the trial of the sharīf [honorary title denoting descent from the Prophet Muhammad, referring to Ahmad] with the earrings … ​concerning Maymon.” He then folded up the document on itself lengthwise until it resembled a long rectangle, with only the Judeo-Arabic summary showing—a standard method for storing and organizing legal records.28

While notarization by ‘udūl granted the assurance that contracts would hold up in court, it also bore monetary and opportunity costs. ‘Udūl charged for each legal document they drew up and signed. Moreover, having a contract notarized by ‘udūl meant arranging for both parties to appear in the ‘udūl’s offices or having the ‘udūl come to them—either way, a loss of precious time that could be spent in other, more productive ways. Merchants could avoid these costs by relying on informal contracts they wrote up themselves. These contracts, little more than notes, merely outlined the terms of the agreement, without all the “legalese” of notarized documents or the ‘udūl’s signatures. One informal bill of debt outlined only the most basic information about money owed to Shalom: “The Shaykh Mawlay al-Tayyib b. al-sharīf Mawlay Arrashid [sic] al-‘Alawi Isma‘ili owes the dhimmī Shalom b. Yehudah Assarraf thirty-nine French riyāls, [which he must pay within] twenty-six days.”29 The brief note even lacked a date—making it hard to know how Shalom planned to enforce the clause that the debt would be paid in twenty-six days. Such notes did not provide much more guarantee than a verbal (p.64) agreement—to which many Jews and Muslims undoubtedly also resorted, though evidence for such arrangements is even more difficult to come by.30 Ultimately, neither verbal agreements nor informal written contracts were enough to prove a claim in court. Indeed, in a case discussed shortly, Shalom was required to spend large amounts of time and money proving a debt for which he had no notarized document. Little wonder that most Jewish merchants preferred frequent visits to the ‘udūl.

Jewish merchants’ reliance on shari‘a courts meant respecting the rules of Islamic law, even though this made extending credit more complicated. Jews did not lend money to hundreds of customers out of the goodness of their hearts; they lent money to make a profit, which they did by charging interest on the principal. But Islamic law strictly prohibits the outright charging of interest (called ribā in Arabic). Although Islamic jurists developed elaborate legal fictions to charge hidden interest, Jewish merchants opted for a more straightforward way to get around the prohibition on usury. The general practice was to extend credit for one amount but write out a bill of debt for a much larger sum—sometimes double or more.31 This way, a moneylender would be paid back far more than he initially lent out—making a profit similar to the one he would make if he charged interest. For instance, Ya‘akov made three separate loans to a Muslim named Ahmad b. al-Hajj Mubarak al-Sharadi al-Dalimi al-Shangili.32 The bills of debt claimed that Ya‘akov had lent Ahmad 200, 100, and 50 riyāls respectively. But according to Ahmad’s deposition in court, Ya‘akov gave him only a fraction of the amount he supposedly owed: Ahmad received eight riyāls in the transaction recorded as fifty; twenty riyāls in the transaction recorded as 100; and sixty riyāls in the transaction recorded as 200. In other words, by inflating the amounts in the bills of debt, Ya‘akov effectively charged Ahmad 250 percent interest on the loan. While Ahmad clearly knew what was going on, the notarized documents made no mention of interest whatsoever, and the bills of debt outwardly conformed to the prohibition on charging interest.

Writing bills of debt for inflated sums was an effective legal ruse precisely because qadis put their faith in the validity of legal documents. As long as the notarized bills of debt showed no signs of usury, most qadis ignored debtors’ claims that they had been charged illegal interest. In the spring of 1875, for instance, Shalom sued al-‘Arabi b. Lahsan al-Dublali al-Ya‘qubi and his two guarantors al-Mu‘ti b. Hamm al-Dublali (p.65) al-‘Ajiwi and al-Hajj ‘Abdallah b. Muhammad al-Shayzami for the enormous sum of 3,000 French riyāls.33 First al-‘Arabi, and then al-Mu‘ti his guarantor, testified that Shalom had only given him 1,500 riyāls, and that they had paid this amount already—even though they admitted that the bill of debt had been written for 3,000 riyāls. It was to no avail: the qadi ignored their plea and ordered them to find another guarantor who could pay the full debt recorded in the notarized document.34 Even when al-‘Arabi and al-Mu‘ti produced a lafīf—the recorded testimony of twelve Muslim men—attesting that the debt was for only 1,500 riyāls, the qadi was unmoved.35 Significantly, not one of the claims that the debts had involved illegal interest actually used the word ribā, the term for usury in Islamic jurisprudence—possibly because the ways in which Jews charged hidden interest did not resemble those of classical legal texts. Perhaps most important, qadis did not immediately presume that a Jewish creditor accused of usury was guilty as charged, despite the association between Jews and usury in both the Islamic tradition and Moroccan popular culture.36

Qadis’ attitudes toward accusations of usury were even more surprising given that Jews had largely cornered the market on moneylending by the second half of the nineteenth century.37 The vast majority of the time that both Jews and Muslims borrowed money, they did so from Jewish merchants—merchants who, like the Assarrafs, combined selling goods on credit with straightforward cash loans and advances on agricultural products.38 Given these circumstances, one would expect qadis to readily accept claims that Jews were charging illegal interest. And this was not entirely unknown; a qadi in Demnat, a small city near Marrakesh with a high Jewish population, accused the local Jews of charging illegal interest on loans they made to Muslims and refused to enforce their bills of debt in court.39 Yet this attitude was relatively rare; most of the time, merchants like Shalom could rest assured that their outward compliance with Islamic legal standards would prevail.40

The reasons behind Jews’ overrepresentation as moneylenders are worth exploring, especially since they have been largely misunderstood in the scholarly literature. Jews living under Islamic rule were never forced into lending money for lack of other economic options, as they were in Europe. Yet historians of the Islamic world have erroneously explained the affinity between Jews and moneylending as stemming (p.66) from the differences between Islamic and Jewish law. They point out that Muslims were categorically forbidden to ever lend at interest, while Jewish law permits the lending of money at interest to non-Jews. Jews became the default sources of credit, so this argument goes, because their law permitted what Islamic law prohibited.41 But this reasoning is fundamentally flawed. The fact that Jewish law permitted Jews to lend to Muslims at interest was irrelevant, since Jews followed Islamic law when doing business with Muslims. The hundreds of bills of debt that merchants like the Assarrafs had drawn up by ‘udūl necessarily conformed to the Islamic prohibition on charging interest. Moreover, Jews were not overrepresented as moneylenders at all times throughout Islamic history: in much of the Ottoman Empire, Jews borrowed from Muslims more often than the other way around.42

Why, then, did Jews end up as the moneylenders par excellence of nineteenth-century Morocco? On one hand, this was a result of their prominence as merchants. As we have seen, the lack of a formal banking system meant that trade and the extension of credit went hand in hand. Jews’ overrepresentation as peddlers, middlemen, and import-export merchants goes a long way in explaining their specialization as moneylenders.43 Moreover, as the only indigenous non-Muslim group, Jews occupied a niche as the quintessential “other”—which might have made some Muslims feel more comfortable borrowing money from Jews than from fellow Muslims. Islamic law decreed a clear prohibition on lending at interest; scrupulous Muslims thus refrained from borrowing money at interest from their coreligionists, lest they be led into sin. But whether Jews violated God’s law was of little concern even to pious Muslims; by refusing to accept Muhammad as God’s prophet, Jews contravened the principles of Islam in any case.44 One could be an upstanding Muslim and borrow money from Jews without compromising one’s religious principles.

Making money in nineteenth-century Morocco required the skillful management of risk. Since merchants sold most of their goods on credit and extended cash loans, their primary concern was that their clients might fail to pay them back. Jewish merchants accumulated mountains of notarized documents recording the debts they were owed, but the paperwork alone was worthless without a mechanism to enforce it. The tribunals presided over by qadis ensured that notarized contracts meant (p.67) something more than just pieces of paper. These were the courts of first instance to which merchants turned when their debtors defaulted.

The Pursuit of Payment

The nature of trade in Morocco leaves little question as to the centrality of Islamic law to commercial life. But it was not enough to know how to utilize Islamic notaries; merchants, especially those involved in money-lending, also had to face the more daunting prospect of pursuing litigation in shari‘a courts. While the barriers to employing the services of ‘udūl were relatively low, suing debtors before a qadi required a more sophisticated knowledge of Islamic law. Whether a businessman was Jewish or Muslim, his success depended in large part on whether he could effectively deploy Islamic law to his advantage. On one hand, Jews’ ability to navigate litigation in shari‘a tribunals facilitated their participation in the Moroccan economy. On the other, Jews’ familiarity with Islamic law and legal institutions offered a way for them to transcend the religious difference demarcating them from the majority of Moroccans.

It is worth following Shalom through a particularly complicated case to get a sense of just how comfortable he was with Islamic law. In the winter of 1879–80, Shalom set about trying to recover a debt of 196 riyāls. This was by no means an extraordinary sum for him; he had sued for as much as 3,000 riyāls and as little as four mithqāls.45 Yet he nonetheless invested much money and time over the next three months in a qadi court trying to secure payment. The basic facts of the case are thus: the brothers Idris and Bu Shitta b. Muluk al-Qamri borrowed 196 riyāls from Shalom. But when the debt came due, Idris and Bu Shitta claimed they were destitute and unable to pay.46 They asked their sister Zaynab to intervene on their behalf, and she agreed to guarantee the debt—which, given their financial circumstances, essentially meant consenting to pay it for them.47 Zaynab and Shalom went to ‘udūl to have her commitment put down in writing and notarized.

But Zaynab was not forthcoming with the money, and Shalom decided to sue her in court. He made this decision despite knowing that most lawsuits regarding unpaid debts did not end in a ruling from the qadi that forced the debtor to pay. In fact, final rulings were generally rare in premodern courts—including those of Morocco—where litigation was often just one possible step in strategies to resolve a legal dispute, (p.68) and resolutions were far more common out of court than at the hands of a judge.48 Even when creditors did bring a case to court, it was often in order to persuade their debtors to reach an out-of-court settlement or submit to arbitration. Moreover, there were various real and opportunity costs to litigating in qadi tribunals which dissuaded litigants from pursuing a final in-court settlement. Although qadis did not charge official fees for their services, litigants were expected to give the judges gifts of thanks. ‘Udūl also had to be paid to draw up a record of the proceedings. Perhaps more seriously, the amount of time invested in bringing a shari‘a court trial to an in-court resolution could be quite significant.49 Given the time and money required to see a case through to the bitter end, it is not surprising that less than a quarter of lawsuits initiated by the Assarrafs and their Jewish business associates ended in the qadi pronouncing a final ruling.

Nonetheless, on December 28, 1879, Shalom summoned Zaynab before a qadi and sued her for the payment of her brothers’ debt.50 Faced with the notarized contract proving that she had guaranteed the loan to Shalom, Zaynab felt she had little choice but to acknowledge the debt. Yet like her brothers, she, too, found herself without the means to pay and pleaded bankruptcy. It was quite common for debtors to acknowledge owing a particular sum and then claim they were destitute and thus unable to pay even a penny.51 Zaynab was ordered to prove her bankruptcy within eight days. Demonstrating one’s inability to pay entailed producing a lafīf—twelve men who testified that they personally knew the debtor and were certain he or she was poverty stricken.52

But Zaynab was not exactly forthcoming with proof of her bankruptcy, either. Eight days passed with no sign of a lafīf, then another eight days, then another. Finally, a month and a half later, Zaynab secured an extension of three days from the qadi.53 The delay proved another empty threat, since two more weeks went by only to produce yet another extension, this time for one day.54 The qadi was unable to enforce the deadlines he imposed, and seemed perfectly willing to continue granting extensions (perhaps in exchange for gifts); these sorts of delays were part of the reason that lawsuits in shari‘a courts could easily drag out over months.

Even before the original deadline by which Zaynab was supposed to have proven her bankruptcy, she threw another wrench into the proceedings. Perhaps as a means to stall, or perhaps in an attempt to intimidate (p.69) Shalom, Zaynab brought her own suit against her creditor. Jewish merchants like the Assarrafs rarely appeared in a qadi court as defendants, largely because they were more often creditors than debtors—and creditors were the ones who needed to worry about getting paid. Nonetheless, some Muslims did sue Jews for everything from stealing mules to failing to pay for goods.55

On January 31, 1880, Zaynab appeared before a qadi and claimed that Shalom had kept two pairs of silver bracelets she had given him as a pledge to ensure that her husband, Ahmad, would appear in court (presumably for another matter unrelated to the present case).56 This sort of guarantee was a regular feature of shari‘a court procedure; defendants had to provide a guarantor for their presence before the next appearance in court—a precaution meant to ensure that the defendant actually showed up in a country where the government had little ability to police its subjects closely.57 At first Shalom denied that he had the bracelets; Zaynab responded by threatening to make him take an oath in support of his plea. Islamic law stipulated that if the plaintiff was unable to provide proof then he could demand an oath from the defendant. However, Moroccan Jews and Muslims went to great lengths to avoid swearing oaths.58 The anthropologist Lawrence Rosen observes that oaths were undesirable both due to the fear of divine judgment should one swear falsely, and to the damage done to one’s reputation as a businessman. Even appearing to swear falsely could reduce a person’s social capital and “risk his overall attractiveness as a partner” in future commercial relations.59 Not wanting to take an oath, but being unwilling to concede that the bracelets were in his possession, Shalom did nothing at first. Only after three weeks had passed did he finally admit that he had the bracelets after all and that he was keeping them until he settled with Ahmad.60

The delays and countersuits must have dampened any hope Shalom held that Zaynab would either offer proof that she was bankrupt or pay her brothers’ debt. Even before the qadi gave Zaynab her first extension, Shalom initiated a second lawsuit against her husband, Ahmad. On February 9, 1880, Shalom claimed that Ahmad had guaranteed the debt of 196 riyāls for his wife (which she had originally guaranteed for her brothers).61 Ahmad denied the charge, claiming that he had only guaranteed Zaynab’s presence in court, not the payment of any of her debts.62 (p.70) The qadi ruled that Shalom had to prove his claim and gave him eight days to do so.

Normally, Shalom would have had such an agreement notarized by ‘udūl, and could have produced this evidence either to Ahmad privately to persuade him to settle out of court, or before the qadi to elicit a ruling. But either Shalom never had ‘udūl record Ahmad’s guarantee of his wife’s debt, or Ahmad had made no such guarantee.63 Nonetheless, Shalom refused to give up. Exactly eight days later, he had ‘udūl record the testimonies of twelve Muslim men—constituting a lafīf, which essentially replaced the testimony of two ‘udūl—who purported to have witnessed Ahmad guarantee Zaynab’s debt to Shalom. In the absence of a notarized document supporting his claims, Shalom went to the considerable trouble and expense (since such documents had to be drawn up and signed by ‘udūl) of gathering twelve Muslims who could testify on his behalf.

But Ahmad was not to be defeated so easily. Rather than accept the lafīf as definitive proof against him, he solicited a formal responsum (fatwā) calling the lafīf into question. He paid a fee to consult a jurisconsult (muftī) named Ahmad b. ‘Abd al-Jalil al-Sanhaji, who wrote a fatwā claiming that the lafīf was null and void.64 Al-Sanhaji gave three reasons: first, the witnesses did not specify the amount being guaranteed; second, the witnesses did not specify the source of their knowledge; and third, one should resort to the testimony of a lafīf only out of necessity. This meant that while it was legitimate to produce a lafīf in rural areas where ‘udūl were unavailable, in a capital city such as Fez a lafīf was a priori unacceptable.65

Although things were looking bad for Shalom, he too proved unwilling to be deterred. Rather than accept al-Sanhaji’s opinion, Shalom paid a fee to seek the ruling of a different jurist (whose signature is illegible). This jurist produced a point-by-point rebuttal to al-Sanhaji’s fatwā. Concerning al-Sanhaji’s claim that the lafīf was void because the witnesses did not know the amount of money in question, the jurist argued that witnesses need not specify the amount when the transaction at hand was a guarantee.66 To al-Sanhaji’s point that the witnesses had not identified the source of their knowledge, the author noted that this was not necessary as long as their testimony seemed “likely and was valid.”67 Finally, the jurist attacked al-Sanhaji’s claim about the permissibility of a lafīf in a city like Fez. He countered that if Shalom had intentionally (p.71) planted the twelve men in order to testify, their testimony would be problematic. However, because they had been present “accidentally” and were attesting something they had happened to witness, it was permissible.68

Shalom’s religion was no impediment to his ability to seek out the services of a jurist. Islamic law permitted anyone to consult a muftī and request a fatwā; indeed, Jews and Christians submitted fatāwā in other parts of the Islamic world as well.69 Like the fatāwā presented in Shalom’s suit against Ahmad, most responsa brought to bear on debt litigation in Morocco concerned the validity of testimony, especially that of lafīfs.70 Although consulting a jurisconsult cost yet more money—the fee varied depending on his reputation and the question at hand—it could be a powerful weapon in a contested lawsuit. This was especially true if the muftī was widely respected as a scholar. Some of the fatāwā found in the Assarraf collection were authored by jurists who were quite prominent during their time, including Muhammad al-Ma’mun b. Rashid al-‘Iraqi (who also served as a qadi in Fez) and al-Mahdi b. Muhammad al-Wazzani al-Hasani al-‘Imrani (author of the most famous fatwā collection produced in the modern Maghrib).71 Although it is often difficult to tell who sought out a particular fatwā—the Jewish creditor or the Muslim debtor—there is no reason to think that Jews like Shalom would not have had access to the very highest echelons of Islamic learning in Morocco.

Indeed, after Shalom produced his counter fatwā, the qadi ruled that Ahmad must guarantee the debt he owed to Shalom.72 On one hand, this meant Shalom had successfully proved his case. On the other hand, it did not mean the lawsuit had drawn to a close. Rather than accept the qadi’s decision, Ahmad and his wife Zaynab tried one last tactic. This time, Zaynab went in search of another fatwā as a rejoinder to the one brought by Shalom.73 The third jurist, who signed his name only as Muhammad, gave an unusual response. Rather than focus solely on the legal questions at hand, Muhammad wrote a short summary of the case. He also demonstrated clear contempt for Shalom, accusing him of having “tried to play with the shari‘a.”74 The fact that Shalom was Jewish seems to have motivated Muhammad’s attitude at least in part; he referred to Shalom repeatedly as “the Jew (al-yahūdī),” rather than “the plaintiff” or even “the dhimmī.” When he finally got around to making an argument, he merely reiterated al-Sanhaji’s third point—that (p.72) the testimony of a lafīf in an urban center was invalid. Muhammad’s attention to the religious persuasion of the creditor was exceptional; the majority of fatāwā solicited in lawsuits concerning Jews focused exclusively on legal questions and did not so much as mention whether one of the parties involved was Jewish. Nonetheless, Muhammad’s fatwā demonstrates that skill and knowledge of the workings of Islamic law did not shield Jews from attacks based on their confession.

But anti-Jewish bias was not to have the last word. In response, Shalom solicited yet a fourth fatwā. The fourth jurist (whose signature is cut off) made a similar rebuttal to the argument that a lafīf was invalid in a city like Fez. He countered that “all scholars” have agreed that the testimony of a lafīf was acceptable at all times and in all places, irrespective of the availability of ‘udūl. Moreover, he completely ignored Muhammad’s anti-Jewish insinuations and stuck to the legal questions at hand. Although this fatwā added little substance to the debate, we can surmise that Shalom simply did not want Ahmad’s second fatwā to stand unchallenged. His strategy eventually paid off, to a degree: exactly three months after his initial lawsuit against Zaynab, Ahmad’s brother (also named Bu Shitta) and his wife Mubaraka agreed to guarantee the loan that Ahmad now owed to Shalom.75

Whether Shalom was eventually paid or not is impossible to know; in fact, the evidence suggests that he was not in it for the money. The amount of time he spent suing Ahmad and Zaynab in court and the fees he paid for the lafīf and the two fatāwā he presented suggest that Shalom probably had nonpecuniary interests at stake. Daniel Smail has explored how personal feelings of hatred, jealousy, and contempt could fuel medieval creditors to sue their debtors even when doing so made no financial sense.76 Perhaps Shalom felt particular enmity for Ahmad and Zaynab and wanted to punish them by forcing them to appear in court over and over again, despite the high legal fees. Or perhaps he was sure that the al-Qamri family could afford to pay their debts, and their refusal to do so would set a bad example for his other debtors.77

It is worth reflecting on the fact that much of this drawn-out lawsuit involved Shalom’s dispute with a Muslim woman. In both the market-place and the courtroom, Jews mostly encountered Muslim men. This is not because Muslim women were absent from shari‘a courts. While we lack in-depth studies for Morocco, it is safe to assume that women most (p.73) commonly appeared in court for matters related to family law, such as marriage, divorce, maintenance, custody of children, and inheritance.78 These issues were necessarily limited to cases involving Muslim men, since Islamic law did not permit Muslim women to marry dhimmīs (nor did Jewish law permit Jewish men to marry non-Jews). Muslim women did appear in shari‘a courts, even though they were largely absent from cases involving Jews. Yet as Shalom’s dispute with Zaynab shows, Jews did encounter Muslim women in court, usually as the wives or sisters of men they did business with.79

Outside of judicial institutions and beyond the city walls, however, the high barriers to intermarriage paradoxically brought Jewish men closer to Muslim women. The prevalence of Jewish peddlers in the countryside was in part facilitated by their neutrality. As non-Muslims, Jewish men did not present a sexual threat to Muslim women; their social inferiority hindered them from seducing, violating, or potentially marrying Muslim women. They could thus interact with women in ways that would be totally unacceptable for Muslim men who were not family members, even entering homes to sell their wares while women were present.80 Shalom’s appearances in court with Zaynab represented a broader pattern of legal and commercial relations among Jewish men and Muslim women that arose both despite and because of the social barriers between them.

Succeeding in commerce meant having a fairly sophisticated understanding of shari‘a courts. While having contracts drawn up and notarized by ‘udūl was relatively straightforward, pursuing litigation often required a more detailed knowledge of Islamic law. Merchants who became involved in drawn-out lawsuits were often required to produce a lafīf, submit a fatwā (or even a counter-fatwā), or take an oath—all relatively complicated endeavors for anyone, regardless of his faith. Indeed, the ability of Shalom Assarraf and merchants like him to successfully deploy the tools of litigation in shari‘a courts demonstrates the extent to which religion was not a barrier to participation in the Islamic legal system.81 The nature of legal procedure in Moroccan shari‘a tribunals meant that Jews were able to submit evidence just as Muslims did, at least according to the letter of the law. This does not mean Jews never faced discrimination in qadi courts. On the contrary, one of the most common complaints Jews presented to the Makhzan was that their local (p.74) shari‘a court officials—both qadis and ‘udūl—were discriminating against them (discussed in Chapter 4). But whatever barriers they faced, the experience of Jews like Shalom demonstrates that it was possible to transcend the disadvantages associated with one’s faith by successfully employing the tools of Islamic law to one’s advantage.

A Jewish Lawyer in an Islamic Court

There is little question that Jews were central players in the Moroccan economy and a regular presence in shari‘a courts, but how did these roles impact Jewish-Muslim relations beyond the courtroom and the marketplace? We cannot assume that the commercial and legal relationships among Jews and Muslims produced bonds of personal affection. European historians have argued that while most loans among Christians did imply networks of trust, loans between Jews and Christians remained largely impersonal.82 We must look carefully for clues about the kinds of extra-commercial relationships that developed between Jewish merchants and their Muslim colleagues.

Shalom Assarraf’s ability to successfully navigate the complicated procedure adhered to in shari‘a courts is remarkable in and of itself; he clearly acquired a familiarity with the requirements of the shari‘a, notwithstanding the fact that as a Jew he lacked any formal education in Islamic law, not to mention the ability to read Arabic. But even more striking was the fact that Shalom used his skills in court on behalf of Muslim colleagues. A number of Muslims perceived Shalom as sufficiently knowledgeable that they were willing to invest him with the authority to act as their legal representative (wakīl).83 As a wakīl, Shalom had full power of attorney to collect payments, sign releases, and appear in court on his Muslim clients’ behalf—in other words, he did all that lawyers do, though no such institution existed in Islamic law. Shalom was not the only Jew to represent Muslims in court, either.84 Muslims who chose to invest a Jew with full powers to represent them in an Islamic court of law did so despite the fact that Mālikī law prohibited Muslims from appointing non-Muslims as their wakīl, despite Jews’ inferior social status, and despite the religious differences that inhibited social relations.85

Granting Shalom power of attorney did not necessarily mean these Muslims considered him their friend. First and foremost, the Muslims who appointed Shalom as their wakīl put their faith in his knowledge of (p.75) Islamic law and legal procedure. His frequent visits to both ‘udūl and qadis meant he had acquired quite a bit of knowledge about how to navigate Islamic law as it was applied in Morocco. Shalom was in court more often than many Muslims; indeed, it is quite plausible that these Muslims knew less about Islamic law than he did. Moreover, investing another individual with such wide-ranging authority did require a high level of confidence that the wakīl would act wisely and with one’s best interests in mind. The Muslims who invested Shalom with power of attorney must have felt that he would serve them well. Even if Shalom’s commercial networks were largely impersonal, in some instances these business relationships developed into bonds of trust. Interreligious trust could work in the other direction as well; on at least one occasion, Shalom chose a Muslim to act as his representative.86 Jews mostly appointed other Jews as their wakīls, and Muslims usually appointed other Muslims.87 But the fact that religious difference was not a barrier to choosing a legal representative suggests that the commercial and legal ties linking Jews and Muslims did, at times, bleed into more intimate areas of life.

The possibility that a Jew could represent a Muslim in an Islamic tribunal is perhaps the most eloquent testimony of the degree to which Jews fully participated in Morocco’s networks of shari‘a courts. Jews’ place in Moroccan society was defined by a delicate and ever-shifting balance between the significant autonomy Jews were granted and their deep integration into the broader economy and the legal order that supported it. In Shalom’s case, he was linked to Muslims not only through the goods he had to sell and the capital he could lend, but by virtue of his expertise in the functioning of shari‘a courts. In such instances, Islamic law became the vector connecting Jews to Muslims in and of itself, rather than as an accessory to their commercial encounters.

A dense web of commerce tied urban Jews to their Muslim customers, including the inhabitants of the cities’ Muslim quarters and the tribesmen living in the surrounding countryside. Jewish merchants thus spent much of their time in a Muslim-majority marketplace facilitated by Islamic legal institutions. This did not make them any less Jewish, nor did it mean that they started to disappear into the broader Islamic society in which they played such a vital role. On the contrary, Jews remained (p.76) highly distinctive, both legally as dhimmīs and in concrete terms as manifestly different—in dress, in manner, in language—from the Muslims with whom they did business. Significant social and legal boundaries separated Jews from Muslims, but like the walls of the millāḥs, these boundaries were porous; crossing their threshold was part of the rhythm of daily life for both Jews and Muslims. Seen in this light, it is no longer possible to imagine Jews as isolated, within either their own communities or their own legal systems. Both commerce and law offered Jews pathways of integration into the broader Islamic society.

Similarly, the presence of Jews in shari‘a courts disrupts conventional understandings of Islamic law. Shari‘a courts in Morocco and throughout the Islamic world were staffed by Muslims, produced written documents in Arabic, and saw their mission as applying the law revealed by God to his prophet Muhammad. But they were far from exclusively Muslim institutions. On the contrary, Jews were habitual patrons of shari‘a courts, availing themselves of the services of qadis and ‘udūl on a regular basis. Jewish businessmen fostered countless commercial relations with Muslims, and shari‘a courts provided the glue keeping these relationships intact. Indeed, it is only through examining the documents produced by these courts that we realize the extent to which Jewish merchants met many—if not most—of their legal needs outside the walls of the Jewish quarters. It would be erroneous to call Moroccan shari‘a courts secular or even ecumenical; on the contrary, they were profoundly religious institutions. Yet the assumption that a confessional court must cater primarily, if not exclusively, to members of its own faith group is entirely misplaced in the Moroccan case. Shari‘a courts in pre-colonial Morocco—and indeed in most of the Islamic Mediterranean before the twentieth century—were mono-religious institutions with a multi-religious clientele.

Notes:

(1.) TC, File #4, 10 Jumādā II 1297. The settlement is recorded on the back of the document recording the lawsuit, though it does not specify what price the two litigants eventually agreed upon. In 1880, one French riyāl (five francs) was equal to approximately eight mithqāls in Essaouira (although the exchange rate varied from one city to another: Schroeter, Merchants of Essaouira, 143, 149).

(3.) Jay Berkovitz makes a similar argument for the Jews of Metz: see esp. Berkovitz, Protocols of Justice, 97–98, 102–3.

(9.) The textiles are described in the documents as kattān, kattān marikān (American kattān), or simply marikān. Kattān means “flax” or “linen” in classical Arabic (Frenkel translates it as “flax,” which, given the context, is clearly a mistake: Frenkel, “Jewish-Muslim Relations in Fez,” 73), whereas the classical Arabic word for cotton is quṭn. Nonetheless, kattān as used in Morocco was an adaptation of the English and/or French “cotton/coton”; indeed, most names of foreign commercial goods were simply borrowed from foreign languages (see De Premare, Dictionnaire arabe-français, 10: 528). Moreover, cotton was a far more common import to Morocco than linen (or any other textile: see Miège, “Coton et cotonnades”; Miège, Le Maroc et l’Europe, 2: 75–77, 135, 535–37, 4: 391). Marikān almost certainly referred to (p.226) “Americano,” the Moroccan term for raw calico (Miège, “Coton et cotonnades,” 227, fn 4, although Miège does not give the Arabic for this word; René-Leclerc describes “Malikan” as “cottonade jaune”: René-Leclerc, “Le commerce à Fez,” 239). It is also possible that marikān indicated the origin of the material in question, though in that case it would have referred to the place where the cotton was grown and not where it was milled, since nearly all cotton textiles imported to Morocco came from Britain (ibid., 234; Miège, “Coton et cotonnades”). I am grateful to Daniel Schroeter for his help with the definition of this term.

(11.) Out of a sample of 117 bills of sale in which members of the Assarraf family sold goods to Muslims, 86 (or 74 percent) were for cotton textiles.

(12.) The sales contracts of at least eleven other Jewish merchants from Fez involved in the cotton textile trade appear in the Assarraf collection. Imported textiles were sold wholesale in one of Fez’s markets known as the qaysarīya (René-Leclerc, “Le commerce à Fez,” 296). For Shalom’s presence in Tangier, see, e.g., TC, File #2, 17 Rabī‘ I 1302; File #4, 19 Ṣafar 1302 and 8 Ṣafar 1308; File #5, 15 Jumādā I 1302 and 21 Rabī‘ II 1309. Most imports in Fez arrived via Tangier (see Lahlou, “La banque à Fès,” 223). I infer that he bought the goods from Jewish importers because none of the bills of sale for bulk items survive in the Assarraf collection. Bills of sale for transactions with Jews would normally have been drawn up by Jewish notaries, but since the collection consists solely of shari‘a court documents, these bills of sale would necessarily be absent. It is also possible that the Assarrafs bought some or all of their wares from foreign importers (though this type of arrangement was more unusual).

(14.) On the Assarrafs’ ownership of horses, see TC, File #8, 14 Sha‘bān 1297, in which Shalom bought a white male horse from al-Hajj ‘Abd al-Rahman b. al-mu‘allam ‘Ali al-Susi for 157 mithqāls and five ūqīyas. See also TC, File #10, 2 Muḥarram 1323, in which the Jew Rafael b. Aharon al-Sukuri bought a red work horse (birdhawn) from a Muslim. (I am grateful to Professor Michael Cook for this translation.) A number of bills of sale attest the purchase of mules from Muslims: TC, File #2, 29 Rabī‘ I 1286; File #10, 3 Rabī‘ I 1288; File #9, 26 Jumādā I 1296; File #1, 12 Dhū al-Qa‘da 1307; File #10, 27 Sha‘bān 1324; File #5, 1 Dhū al-Qa‘da 1327; File #5, 13 Muḥarram 1328; File #9, 6 Shawwāl 1328. My information concerning the family’s stable is from an interview with Michael Maman, September 11, 2013. There is some indication that in Morocco, Jews were permitted to ride horses outside the city walls (though not inside them): Romanelli, Travail in an Arab Land, 90.

(p.227) (15.) There were a limited number of banks in Tangier after 1900, including those established by Moroccan Jews and branches of foreign banks. However, these mainly served to send money abroad or change currency and did not disrupt older forms of credit extension in Fez (Lahlou, “La banque à Fès,” 228–30; Le Tourneau, Fès avant le protectorat, 289–90).

(16.) On merchants as bankers in medieval Europe, see Jordan, Women and Credit, 19.

(17.) Fifteen days is the shortest period of time I found (e.g. TC, File #10, 18 Muḥarram 1306); the longest involved a debt of 360 riyāls which the buyer agreed to pay back at the rate of 12 riyāls every month (TC, File #10, 9 Dhū al-Ḥijja 1299).

(18.) On salaf, see Latham, “Salaf.” See also Schroeter, Merchants of Essaouira, 109, 112–13. For formulas for a salaf loan, see Binani, Al-wathā’iq al-fāsīya, 43. Out of the 166 bills of debt I analyzed in detail, I found eight that were for a salaf loan. See, e.g., TC, File #1, bill of debt owed by Muhammad b. Idris al-Miknasi to Shalom (for 65 riyals), dated 17 Ramaḍān 1309.

(19.) See, e.g., TC, File #10, 16 Dhū al-Qa‘da 1309. Among the 166 bills of debt analyzed in detail I found no more than four that concerned salam loans. On salaf and salam loans, see also Lydon, On Trans-Saharan Trails, 317–18; Schroeter, “Views from the Edge,” 186.

(21.) For instance, a bill of debt owed to Ya‘akov and dated 15 Muḥarram 1310 was guaranteed exactly four years later by the debtor’s son (on 15 Muḥarram 1314). There were formulas for a guarantor both as part of the original bill of debt and as a separate document: see Binani, Al-wathā’iq al-fāsīya, 47.

(22.) Between 1864 and 1882 (1281–1300 AH), Shalom is mentioned in an average of thirty-nine documents per year. However, if one disregards the years during which his activities were markedly low (1868–69/1285, 1872–75/1289–91, 1876/1293, and 1881–82/1299), then Shalom averaged forty-nine visits to court per year. The Assarraf collection preserves far more documents concerning Shalom than for any other member of the family: he is mentioned in 1,013 out of a total of 1,930 separate entries (his son Ya‘akov is a distant second with only 458 entries to his name).

(23.) Of the documents in the Assarraf collection, 73 percent are notarized contracts, as are 98 percent of the documents in other collections I consulted. Scholars working on the medieval and early modern periods have also observed that Jews mainly used shari‘a courts for notarial purposes: see, e.g., Goitein, A Mediterranean Society, 2: 400; Gil, A History of Palestine, 168; Wittmann, “Before Qadi and Vizier,” 71. Studies of how Muslims used shari‘a courts in Morocco have yet to be conducted, though the anecdotal evidence I gathered in the course of my research suggests that they, too, frequented ‘udūl far more than qadi courts.

(24.) About 12 percent (239 total) of the documents in the Assarraf collection concern appearances before a qadi.

(p.228) (25.) For instance, Yeshu‘a Corcos of Marrakesh was an even more successful merchant; the documents from his personal archives held at the University of Leiden—which represent only a small fraction of his papers (others are held by Yale, for instance)—include dozens of Islamic legal documents attesting his regular use of shari‘a courts. Nor was frequent recourse to ‘udūl unique to non-Muslims in Morocco; an Ottoman formulary for Islamic legal documents from the nineteenth century was written entirely with Christian clients in mind (see Ebied and Young, Legal Documents of the Ottoman Period, 2–5; Hallaq, “Model Shurūṭ Works,” 116–17).

(26.) Among the other shari‘a court documents I examined, about 52 percent were also bills of debt (154 out of 295).

(27.) Releases make up about 5 percent of the Assarraf collection; they constituted about 4 percent of the documents I examined from other collections. For a formula for a standard release document, see Binani, Al-wathā’iq al-fāsīya, 57. See also Schacht, An Introduction to Islamic Law, 148. On the use of quittances in court, see, for instance, the case of Joseph Suiry v. Menahem Nahon and udah Benguigui (in CADN, Tanger A 159), in which Suiry sued Nahon and Benguigui for money they supposedly owed him. Nahon and Benguigui produced what they claimed was a release signed by Suiry which confirmed that Nahon and Benguigui had fulfilled all their financial obligations. The qadi of Tangier ruled in Nahon and Benguigui’s favor on the basis of this release.

(28.) Hādhā l-maqāl di-sharīf mūl l-khurṣa … di-Maymon: TC, File #4, 10 Jumādā II 1297.

(29.) TC, File #4, no date. There are seven more such informal bills of debt in the Assarraf collection.

(30.) See, e.g., Flamand, Un mellah en pays berbère, 142, though it seems that Flamand largely misunderstood the nature of Islamic law and legal documentation in Morocco, making his claims somewhat questionable. (On Flamand, see Schroeter, “Views from the Edge,” 177–78.)

(31.) See, e.g., MAE Courneuve, CP Maroc 53, Féraud to Flourens, September 28, 1887. This seems to be more or less what Ghislaine Lydon describes as muḍ‘āf in the Saharan trade (Lydon, On Trans-Saharan Trails, 315–17). A similar strategy was also used to hide interest in loans made in the Ottoman Empire: Gerber, Crossing Borders, 154–55. On legal ways to charge interest, see Saeed, Islamic Banking and Interest, esp. 37–39. The Mālikī school was generally less tolerant of such legal fictions (see Khan, “The Mohammedan Laws Against Usury”; Schacht, “Riba”).

(32.) TC, File #1, 30 Rabī‘ I 1309. For similar claims that the Assarrafs charged hidden interest, see File #7, 4 Sha‘bān 1284; File #6, 19 Rabī‘ II 1292; File #8, 26 Ṣafar 1293.

(33.) TC, File #6, 19 Rabī‘ II 1292.

(34.) Al-‘Arabi’s brother ‘Ali guaranteed the debt on 2 Jumādā I 1292.

(35.) Indeed, in another case in which one of Ya‘akov’s creditors claimed he had been charged an even higher rate of hidden interest, the qadi completely (p.229) 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). See also TC, File #7, 4 Sha‘bān 1284 and File #8, 26 Ṣafar 1293.

(37.) Schroeter, Merchants of Essaouira, 110, 172–73; Kenbib, Juifs et musulmans, 253–62; Ennaji, Expansion européenne, 60–65. This seems not to have been the case in the medieval Islamic world or in most parts of the early modern Ottoman Empire, where Jews were just as likely to borrow from Muslims as were Muslims from Jews: Goitein, A Mediterranean Society, 1: 256–58; Gerber, “Jews and Money-Lending”; Gerber, “Muslims and Zimmis.”

(38.) This does not mean that Jews never borrowed from Muslims, only that they did so far less than Muslims borrowed from Jews; see, e.g., TC, File #5, 23 Muḥarram 1265; Bension Collection of Sephardic Manuscripts, University of Alberta, Ms. 188 (p. 248a), described in Aranov, Catalogue of the Bension Collection, 108.

(39.) BH, K 181, p. 120, 22 Rajab 1309.

(40.) Indeed, this qadi’s actions were considered problematic enough to prompt a petition from the Jewish community of Demnat directly to the sultan asking for his intervention (discussed further in Chapter 5).

(41.) See, e.g., Baron, History of the Jews, 4: 197–202; Bowie, “The Protégé System in Morocco,” 242; Laskier and Simon, “Economic Life,” 32. On the permissibility of lending at interest to non-Jews, see the Shulkhan ‘Arukh, Yoreh De‘ah, 159.

(43.) On Jews’ overrepresentation as merchants in rural areas in particular, see Deshen, The Mellah Society, 32–39.

(45.) TC, File #6, 12 Dhū al-Ḥijja 1291; File #6, 19 Rabī‘ II 1292.

(46.) I glean this from the third fatwā on the back of the maqāl in TC, File #1, 1 Rabī‘ I 1297.

(47.) See ibid., as well as TC, File #5, 14 Muḥarram 1297.

(49.) For a contemporary description of procedure in shari‘a courts see Maeterlinck, “Les institutions juridiques au Maroc,” 478–79. The plea was almost always made on the same day of the initial accusation (both of which were recorded in the maqāl, literally, a piece of paper): for an exception see TC, File #3, 21 Rajab 1329 (in which the defendant pleaded not guilty six weeks later). This procedure was quite similar to that observed in kadı courts of the Ottoman Empire: see, e.g., Jennings, “Limitations of the Judicial Powers of the Kadi,” 172–73; Ergene, “Evidence in Ottoman Courts,” 473. A good example (p.230) of using a qadi court to settle out of court occurred in March 1909, when Ya‘akov Assarraf and his business associate Eliyahu b. ‘Azuz Kohen reached an amicable settlement with the Muslim Idris b. Ya‘ish al-Najjar after suing him in a qadi court (TC, File #6, 8 Ṣafar 1327). Ya‘akov and Eliyahu claimed that Idris owed them 6,945 riyāls—a huge sum—for debts that Idris had guaranteed. Idris’s sons came to court and demanded that “the dhimmīs take an oath concerning the signature of their father [Idris] that [the two dhimmīs] presented.” Instead of taking the oath—something to be avoided if at all possible—the parties summoned two Jewish mediators (man aṣlaḥa baynahum): al-ḥazān Vidal b. al-ḥazān Avner al-Sal‘ati al-Fasi and the merchant Zubil b. Ya‘akov b. Samhun al-Fasi. With the mediators’ help, Ya‘akov and Eliyahu agreed to a reduced payment of 4,000 riyāls. Even if such settlements meant that creditors did not collect the full sum they had initially claimed, the amount saved in court expenses and time must have made up for much, if not all, of their losses. See also TC, File #3, 30 Muḥarram 1309; File #5, 16 Dhū al-Ḥijja 1292, 27 Sha‘bān 1309, and 9 Shawwāl 1332.

(50.) TC, File #5, 14 Muḥarram 1297.

(51.) About half of the cases in the Assarraf collection in which the debtor pleaded guilty resulted in his claiming bankruptcy (eleven out of twenty-three).

(52.) See especially al-‘Arabi, Shahādat al-lafīf. Binani offers a formula for declaring bankruptcy which, though not explicitly called a lafīf, nonetheless indicates that there must be twelve witnesses (Binani, Al-wathā’iq al-fāsīya, 65). René Bouvet, in his study of bankruptcy in Mālikī law, does not mention the use of a lafīf in declaring a person bankrupt; rather, he observed that the person must both produce witnesses and take an oath to that effect (Bouvet, Faillite en droit musulman, 18). Qadis often ordered the defendant to provide a copy of the lafīf document to the plaintiff: see, e.g., TC, File #3, 4 Rabī‘ I 1297.

(53.) On the same maqāl as above, dated 28 Ṣafar 1297.

(54.) Dated 10 Rabī‘ I 1297.

(55.) Jews were plaintiffs in 86 percent (sixty out of seventy) of the cases in the Assarraf collection. I located only five lawsuits in other collections, in which Jews were the plaintiff in three: see UL, Or.26.543 (1), 27 Dhū al-Ḥijja 12??, Haim Corcos, Marrakesh; 7 Sha‘bān 1298, Haim Corcos, Marrakesh; YBZ, 280, 6 Muḥarram 1234, Shlomoh b. Menahem b. Walid. (For the two cases in which Jews were the defendant, see UL, Or.26.543 (1), 18 Jumādā I 1295, ‘Amran Corcos, Marrakesh; YBZ, 280, 17 Dhū al-Qa‘da 1308, Rafael b. ‘Aziz Harosh.) The vast majority of the lawsuits initiated by Jews concerned unpaid debts (fifty-six out of sixty in the Assarraf collection, or 93 percent). For cases in which Muslims sued Jews concerning mules, see TC, File #8, 5 Ramaḍān 1301; File #8, 12 Jumādā I 1296. For failure to pay for goods, see File #2, 29 Dhū al-Qa‘da 1291; File #5, 15 Rabī‘ II 1292; File #5, 9 Dhū al-Qa‘da 1292.

(p.231) (56.) TC, File #1, 18 Ṣafar 1297.

(58.) Maeterlinck, “Les institutions juridiques au Maroc,” 479; Kellal, “Le serment,” 19–20; DNA, 2.05.15.15.81, George P. Hunos to John Drummond Hay, July 25, 1877; TC, File #9, 1 Rabī‘ I 1301; File #10, 7 Muḥarram 1302; File #1, 22 Dhū al-Qa‘da 1323; File #6, 8 Ṣafar 1327. This was not unique to Morocco; in pre-modern times most Jews’ religious sensibilities meant that they took oaths quite seriously: see, e.g., Goitein, A Mediterranean Society, 2: 340; Fram, A Window on Their World, 63–64. Naturally, there were some instances in which Jews and Muslims acquiesced to the request that they swear an oath. On Jews taking oaths, see TC, File #1, 6 Shawwāl 1283; File #1, 6 Jumādā II 1299 (on the back of a bill of debt dated 1 Rabī‘ II 1295). On Muslims taking oaths, see File #1, 29 Dhū al-Qa‘da 1291; File #9, 4 Ṣafar 1294.

(60.) This was recorded in an entry dated 10 Rabī‘ I 1297, under the initial maqāl.

(61.) TC, File #5, 27 Ṣafar 1297. The continuation of this lawsuit (including the relevant fatāwā) is on a separate document found in File #1, starting with a lafīf from 1 Rabī‘ I 1297.

(62.) In fact, Shalom sued Ahmad for two separate debts. One was for 196 riyāls, which was originally owed to him by Idris and Bu Shitta, Zaynab’s brothers, and for which Zaynab had guaranteed payment. This is the debt Ahmad denied having guaranteed. However, Ahmad also acknowledged owing 29 riyāls for a debt he had guaranteed for his relative Hamid b. Qudur b. ‘Ayad. The qadi ruled that he must pay the 29 riyāls, which he presumably did.

(63.) See the third fatwā on the back of the maqāl in TC, File #1, 1 Rabī‘ I 1297.

(64.) Al-Sanhaji was not particularly well known; he came from an elite Fasi family that originally belonged to the Sanhaja tribe (Hajji, Ma‘lamāt al-Maghrib, 16: 5566). A copy of this fatwā, as well as the other three solicited in connection to this case, is reproduced on the back of the lafīf from 1 Rabī‘ I 1297 (File #1).

(65.) Al-Sanhaji referred to the “source of their knowledge” as mustanad al-‘ilm. This is a point mentioned in two other fatāwā (see File #2, from lawsuit beginning 20 Jumādā II 1294 and File #10, from lawsuit beginning 23 Sha‘bān 1294). The argument about the acceptability of a lafīf in a city like Fez is also mentioned in another fatwā (see File #5, from lawsuit beginning 15 Muḥarram 1291). Al-Sanhaji cited a number of jurists in support of his position, including Muhammad b. Muhammad Ibn ‘Asim (d. 829/1426, author of Tuḥfat al-ḥukkām fī nukat al-ʿuqūd wa-’l-aḥkām), Ahmad b. Yahya al-Wansharisi (d. 914/1508, author of Al-mi‘yar), and the commentary by Muhammad b. Qasim al-Sijilmasi al-Ribati (d. 1214/1799) on ‘Amal al-Fāsī, the influential collection of Moroccan custom used widely by early modern and (p.232) modern jurists, compiled by ‘Abd al-Rahman b. ‘Abd al-Qadir al-Fasi (d. 1096/1675).

(66.) He explained that this was because “ignorance [of the sum] of guarantees is forgiven” (al-jahlu fī bābi al-ḍamāni mughtafar).

(67.) Idh al-rājiḥu wa-’l-ma‘mūlu bihi. For this he cited ‘Ali b. ‘Abd al-Salam al- Tusuli’s (d. 1258/1842–43) well-known commentary on Ibn ‘Asim’s Tuḥfa, Al-Bahja fī sharḥ al-tuhfa.

(68.) Ittifāqīyan. I am grateful to Professor Hossein Modarressi for his help in clarifying this part of the fatwā.

(69.) On non-Muslims submitting fatāwā to the divan-ı hümayun (the Ottoman sultan’s Imperial Council), see Wittmann, “Before Qadi and Vizier,” 146–47. Wittmann did not, however, find cases of non-Muslims submitting fatāwā to shari‘a courts (125). On the medieval period, see Goitein, A Mediterranean Society, 2: 406.

(70.) See also TC, File #5, from the lawsuit beginning 15 Muḥarram 1291 and from the lawsuit beginning 17 Rabī‘ II 1291; File #1, from the lawsuit beginning 1 Jumādā I 1292; File #2, from the lawsuit beginning 20 Jumādā II 1294; File #10, from the lawsuit beginning 23 Sha‘bān 1294; File #2, copy of three fatāwā (no date). The only fatwā I found which does not concern the validity of testimony discusses the nature of rights to a pious endowment (from File #9, copies of two fatāwā with no date).

(71.) Al-‘Iraqi was born in 1275/1858, and studied in Fez with numerous prominent scholars (including Ja‘far b. Idris al-Kattani). He was first nominated as qadi in Tetuan in 1303/1885–86, and later became qadi in New Fez and then in Fez in 1326/1908. He authored a number of works, including two books about the Mukhtaṣar of Khalil b. Isḥaq that were printed on the lithographic press in Fez. He died in Fez in 1348/1929: Hajji, Ma‘lamāt al-Maghrib, 18: 6027–28. See also al-Manuni, Maẓāhir, 2: 337–38, and Ibn Zaydan, Itḥāf a‘lām al-nās, 2: 391. Al-Wazzani was born in the town of Ouezzane in 1266/1849 to a sharīfī family. He moved to Fez to study at the Qarawiyin, where he later taught. His most famous work is a collection of fatāwā called Al-mi‘yar al-jadīd, after al-Wansharisi’s fifteenth-century Mi‘yar. He died on 1 Ṣafar 1342/September 13, 1923. On al-Wazzani, see Terem, Old Texts, New Practices, Ch. 2. The fatāwā by al-‘Iraqi and al-Wazzani are found on a loose, undated document from TC, File #2. Another prominent mufti found in the Assarraf collection is al-‘Abbas b. Ahmad al-Tazi (d. 1337/1919), who taught at the Qarawiyin: Hajji, Ma‘lamāt al-Maghrib, 6: 2047–48.

(72.) See the entry dated 19 Rabī‘ I 1297.

(73.) See the entry dated 10 Rabī‘ I 1297, in which the ‘udūl record that “the woman” (presumably Zaynab) took a copy of the second fatwā and was granted eight days in which to respond.

(74.) Wa-ḥāwala an yal‘abu bi-’l-sharī‘a.

(75.) See the entry dated 18 Rabī‘ II 1297.

(p.233) (77.) A clue to this effect is found in the third fatwā signed by Muhammad, who says that Shalom “refused to accept” the claims of bankruptcy of Bu Shitta and Idris, the original debtors, or of Zaynab. On the difficulty of knowing the motives behind litigation from legal records alone, see Roberts, “The Study of Disputes,” 23.

(78.) See, e.g., Tucker, Women in Islamic Law. As with Jews, Muslim women’s oral testimony was not deemed equal to that of Muslim men; yet presumably the predominance of notarized documents in Moroccan shari‘a courts meant that women could present written evidence on an equal footing with men.

(79.) See also TC, File #8, 25 Rabī‘ I 1271 and 12 Jumādā I 1296.

(81.) Berkovitz similarly observed that Jews in eighteenth-century Metz were often comfortable navigating French courts: Berkovitz, Protocols of Justice, esp. 99–100.

(83.) TC, File #4, 4 Ramaḍān 1273; File #4, 23 Ramaḍān 1286; File #7, 12 Rabī‘ I 1289; File #8, 15 Rabī‘ I 1289; File #9, 15 Rabī‘ I 1289; File #5, 15 Rabī‘ I 1289; File #5, 16 Ramaḍān 1289; File #8, 2 Dhū al-Ḥijja 1289; File #8, 17 Rajab 1291. In each power of attorney a different Muslim appointed Shalom as his agent. See also an example of a Jew acting as legal representative for a Muslim from early-twentieth-century Jerusalem: Cohen, Yehudim be-veit ha-mishpat, ha-me’ah ha-19, 191–93.

(84.) See, e.g., DAR, Yahūd, 10 Rabī‘ II 1310, in which a Jew named Dasan b. al- Qara‘ acted as the wakīl for Abu Bakr al-Ghanjawi, a Muslim living in Fez (who is discussed further in Chapter 3).

(85.) Santillana, Istituzioni di diritto musulmano malichita, 2: 337; Bashan, Yahadut Maroko, 61. However, it is clear that the prohibition on having a Jew act as a Muslim’s agent (i.e., the active partner) in a qirāḍ (commenda)—which is quite similar to the general prohibition on having a Jew represent a Muslim—was ignored, at least in the context of medieval Spain and the Maghrib (see Lehmann, “Islamic Legal Consultation,” 45–46).

(86.) TC, File #7, 4 Sha‘bān 1284. The term used here is nā’ib as opposed to wakīl, though it seems to denote the same legal meaning (in this case, a Muslim represents Shalom in a shari‘a court). There is also evidence that Jews in the Ottoman Empire appointed Muslims as their legal representatives; see, e.g., Cohen and Ben Shim‘on-Pikali, Yehudim be-veit ha-mishpat, ha-me’ah ha-18, 489.

(87.) In the Assarraf collection, Jews appointed other Jews as agents the vast majority of the time (all of the powers of attorney issued by Jews appointed other Jews as agent, and in all of the lawsuits, Jews represented other Jews). Eliezer Bashan claims that Moroccan Jews did not have the right to represent other Jews in a shari‘a court (Bashan, Yahadut Maroko, 61). Though he does not explain this assertion, he was probably referring to the fact that (p.234) Mālikī law prohibits employing an agent who is a different religion from that of the legal adversary (see Santillana, Istituzioni di diritto musulmano malichita, 2: 337). I found seventeen examples of powers of attorney among Muslims in the Assarraf collection (as opposed to six in which Muslims appointed Jews), though this is almost certainly not representative since the collection is from the personal archives of a Jewish merchant and thus naturally would overrepresent the extent to which Muslims appointed Jews as their wakīls.