Written and Oral in Islamic Law: Documentary Evidence and Non-Muslims in Moroccan Shari‘a Courts

Abstract

This article begins from the premise that the margins can shine light on the center, and uses the experience of Jews (thought of as marginal in the Islamic world) in Moroccan courts (similarly thought of as marginal in Islamic history) to tell a new story about orality and writing in Islamic law. Using archival evidence from nineteenth-century Morocco, I argue that, contrary to the prevailing historiography, written evidence was central to procedure in Moroccan shari‘a courts. Records of nineteenth-century lawsuits between Jews and Muslims show that not only were notarized documents regularly submitted in court, but they could outweigh oral testimony, traditionally thought of as the gold standard of evidence in Islam. The evidentiary practices of Moroccan shari‘a courts are supported by the jurisprudential literature of the Mālikī school of Sunni Islam, the only one prevalent in Morocco. These findings have particular relevance for the experience of non-Muslims in Islamic legal institutions. Scholars have generally assumed that Jews and Christians faced serious restrictions in their ability to present evidence in shari‘a courts, since they could not testify orally against Muslims. However, in Morocco Jews had equal access to notarized documents, and thus stood on a playing field that, theoretically at least, was level with their Muslim neighbors. More broadly, I explore ways in which old assumptions about the relationship of the written to the oral continue to pervade our understanding of Islamic law, and call for an approach that breaks down the dichotomy between writing and orality.

Non-Muslims in the Qanun Jinayat and the Choice of Law in Sharia Courts in Aceh

“…Christian minorities also experience difficulties in the Middle East and Persia, especially Iran, when dealing with the Sharia Court (MS) (Rabo 2012;Iskander 2012;Robson 2010). Furthermore, Jews and Christians in Morocco are restricted from becoming witnesses and prohibited to testify in the Sharia Courts against Muslims (Marglin 2017). These earlier discussions primarily show how the implementation of Sharia leads to discrimination against women and minorities.…”