The religious boundaries in nineteenth-century Morocco were, so we are told, among the most impermeable in the world. The vast majority of the population was Muslim, all belonging to the Maliki school of Sunni Islam. Jews were the country’s only non-Muslim indigenous group. Most lived in separate, walled quarters called millahs. Jews had a different legal status from Muslims; they were dhimmis, non-Muslim monotheists who occupied a place below Muslims in the social and political hierarchy. Intermarriage was relatively rare and often involved conversion from Judaism to Islam (the reverse would have been dangerous and, most likely, unthinkable). Jews dressed differently, lived separately, and organized their time according to a different calendar. They had an extraordinary degree of judicial autonomy, with Jewish courts that applied halakhah (Jewish law) to most matters involving only Jews and even, in some cities, Jewish-run prisons.
But scholars have been too ready to assume that this autonomy translated into isolation. For decades, Jewish historians have pointed to Jewish legal autonomy in the premodern world as enabling Jews to maintain their distinctiveness through hundreds of years of diaspora. This view of Jewish law—as a force by which Jews closed in on themselves—obscures the ways in which Jews regularly crossed the legal and religious boundaries separating their law from those of the non-Jews with whom they lived. Jews’ quotidian experience of law in Morocco was by no means an exclusively Jewish experience; on the contrary, Jews were regular patrons of Islamic legal institutions, state-run legal institutions, and—particularly in the second half of the nineteenth century—of foreign consular courts. In order to see these boundary crossings, we must look beyond the methodological borders usually imposed by Jewish and Islamic studies respectively. By using the records of Islamic legal institutions to do Jewish history, we gain insight into how Jews lived their lives across legal lines.
A common misconception about Islamic courts is that they were exclusively Muslim institutions. Sharia courts were Islamic in the sense that they applied Islamic law and were staffed by Muslims; but their clientele was by no means singularly Islamic. In Morocco (as elsewhere in the Islamic world), the very structure of the legal system meant that sharia courts regularly adjudicated cases involving Jews. Any case involving a Muslim fell under the jurisdiction of the sharia. Because Jews were in regular commercial relations with Muslims, they often found themselves in legal disputes over which sharia courts had jurisdiction. The case of the Assarraf family of Fez—successful Jewish merchants who made their fortune selling imported textiles—offers a concrete example of how economic pursuits led to regular engagement with Muslim legal institutions. Any time one of the Assarrafs needed to sue a Muslim client—usually for payment of goods sold on credit—he did so in a sharia court. Because Jews were economically integrated with the broader, Muslim-majority society in which they lived, they could not remain isolated within the Jewish legal system.
For the Assarrafs, as for most Moroccans, pursuing a lawsuit was a relatively extraordinary affair. People mainly engaged with legal institutions to pursue the more banal matters of buying, selling, lending, renting, and mortgaging. Even before any sort of dispute might arise about a particular transaction, Jews and Muslims alike sought out written documentation of their contracts. In Morocco, both Jewish law and Islamic law required such documentation to be written by legal experts—the equivalent of notaries public, trained in the legal formulae that would ensure the validity of a particular contract in court. But not all legal documents were valid in all courts. Jewish courts required documents written according to Jewish law; these were usually in a mix of Hebrew, Aramaic, and Judeo-Arabic or Judeo-Spanish (depending on the region). Sharia courts accepted only documents written according to Islamic law, signed by two notaries public (‘udul) considered to be trustworthy individuals knowledgeable in the law.
When the Assarrafs sold textiles to Muslim clients in and around Fez, they mostly did so on credit; few ordinary people had the cash on hand to pay outright. Like many businessmen in nineteenth-century Morocco, the Assarrafs doubled as merchants and moneylenders. In order to ensure that they could pursue recalcitrant debtors in court, the Assarrafs documented their extension of loans according to the requirements of Islamic law. This meant that for each sale they made on credit, they had notaries draw up a bill of debt in Arabic. These legal documents could then be brought before a sharia court to demand payment of the debt. If suing someone in court was a rather exceptional measure, hiring notaries to draw up legal documents was entirely mundane. Between the regular engagement of notaries to write up bills of debt and the occasional lawsuit in court, Jewish merchants like the Assarrafs found themselves in regular contact with Islamic law. The family’s patriarch, Shalom Assarraf (1830-1910), visited Islamic legal institutions nearly once a week during the height of his career.
Such quotidian contact with judicial officials, courts, and legal documents meant that Jewish merchants like Shalom acquired quite a bit of Islamic legal knowledge. This is not to say that Shalom had any formal legal training; he did not—nor could a Jew like him, as Islamic law was taught in purely sectarian institutions. Even more astonishing is the fact that Shalom—like the vast majority of Jews in Morocco—was illiterate in Arabic. His native language was the Arabic dialect spoken by the Jews of Fez, but the only alphabet he could read was the Hebrew one (he read and wrote in Judeo-Arabic—his native dialect written in Hebrew letters). Shalom’s knowledge of Islamic law was entirely practical, acquired in the process of using legal documents and pursuing his interests in courts of law.
Shalom was sufficiently savvy about the workings of Islamic legal institutions that he was regularly called upon to act as a legal representative in sharia courts—a function that was in some ways parallel to lawyers in Western law (called a wakil in Arabic). It is not surprising that Shalom’s Jewish friends and relatives ask him to represent them in sharia court; as a successful merchant with much experience with the law, Shalom was undoubtedly more knowledgeable than many other Jews. What is more surprising is that Muslims also appointed Shalom to represent them in court. Presumably, they felt that Shalom’s practical knowledge of Islamic law was greater than theirs. These Muslims must have had confidence that Shalom would do right by them. At times, crossing jurisdictional boundaries also involved crossing social boundaries, establishing interreligious relationships of trust along the way.
Traversing legal boundaries also went in the other direction: Although far rarer, it was not unheard of for Muslims to frequent Jewish legal institutions. Muslims were never required to appear before Jewish courts, as Jews were required to appear before Islamic ones. But sometimes Muslims preferred to get a legal document written up by Jewish notaries public (known as sofrim, the equivalent of ‘udul). Usually, Muslims sought out Jewish legal documents because they wanted to take advantage of a legal right that existed only in Jewish law (such particular types of usufruct rights to real estate). We must understand both sharia courts and Jewish courts as mono-religious institutions serving a multi-religious clientele.
In nineteenth-century Morocco, Jews regularly crossed the lines separating Jewish and Islamic legal institutions. Doing so did not involve a transgression of their religious beliefs, their communal commitments, or their social loyalties. On the contrary, Jewish judicial authorities recognized the reality of jurisdictional boundary crossing—and, under certain circumstances, even encouraged or required it. This sort of crossing becomes apparent only when one looks beyond the communal sources usually used to write Jewish (or any other minority) history. If one only reads Jewish legal documents, one gets a sense of a robust, largely autonomous Jewish legal system thriving in precolonial Morocco. This is not wrong; but to assume that this was the sum of Jews’ legal lives is to miss a whole other dimension of their quotidian experience. As soon as historians engage with sources in Arabic—produced by Muslim institutions—the extent of Jews’ involvement in Islamic law becomes apparent.
The social, religious, and spatial barriers separating Jews and Muslims in nineteenth-century Morocco were indeed high. But they were not impermeable. Nor did crossing these lines necessarily involve transgression; engaging with sharia was a way for Jews to manage their daily affairs, requiring no change of faith or betrayal of values. The legal history of nineteenth-century Morocco suggests that modern interreligious encounter was not the sole provenance of an imagined, Western-style secularism. Instead, we would do well to understand the institutions in which Jews and Muslims interacted according to their own internal logic—one in which law and religion could be both inseparable and non-exclusive.