The End of Sharīʿa? Adjudicating the Moroccan-Mālikī Legal Tradition in Colonial-Era Morocco (1921-1956)

Abstract

This dissertation addresses a long-standing question in Islamic legal studies: how did judges understand and apply the Islamic legal tradition in nascent twentieth-century nation states? It specifically examines the intellectual process of producing sharīʿa-based court rulings in colonial-era (1912-1956) Morocco. The question of sharīʿa’s relationship to twentieth-century state institutions has received widespread scholarly interest, yet there has been little attention to this history from the perspective of court decisions themselves. I contend that studying sharīʿa rulings in this era provides insight into two major issues: 1) the impact of the colonial state on sharīʿa court functioning, and 2) how sharīʿa judges applied Islamic legal norms in the era directly before state codification of sharīʿa (1957). To address these issues, I use original court records and archival documents to trace a paradigmatic legal dispute (“Case 52”) involving paternity, property, and slavery. The case was adjudicated separately in both Moroccan sharīʿa courts and Moroccan French courts from 1928-1944. Each court system claimed to adjudicate the matter on the basis of sharīʿa, yet each issued contradictory rulings. Through a broader examination of sharīʿa and French court rulings, I make two primary arguments: first, that colonial-era Moroccan sharīʿa judges conceptualized a distinct twentieth-century “Moroccan- Mālikī” legal tradition to adjudicate cases. The judges understood this tradition as a discursive corpus of post-classical Mālikī texts, inseparable from Morocco-specific norms of judicial practice (ʿamal), and mediated by their own social knowledge. Second, I demonstrate how colonial French courts in Morocco used legislative exceptions to adjudicate Muslim personal status and property disputes on the explicit basis of sharīʿa. In doing so, French judges adjudicated sharīʿa-based rulings by mimicking substantive Islamic norms while relying on their own legislation and discretion for evidence and procedure. In the end, I argue that the divergent French court rulings laid a foundation for the piecemeal state definitions of Islamic legal concepts that reconstituted sharīʿa the post-colonial polity.