The Sharifian Decree of May 16, 1930 (the “Berber Decree”) promulgated eight articles that specified the administration of civil and penal justice for Moroccan Berber tribes. Interpreted by Moroccan nationalists as an affront against Islam and national unity, this document has become best known in history for the flurry of political protest that arose in its wake. However, the actual legal means by which the French sought both to systematize the Moroccan judicial system and leave local norms in place merit closer examination.
Background
Upon the signing of the Treaty of Fez on March 30 1912,[1] French authorities officially inaugurated Protectorat Maroc as a jointly-administered entity ostensibly to promote Moroccan and French interests. French officials thereafter launched a series of broad reforms intended to bring Moroccan institutions within administrative reach of Protectorate policy makers. Among these reforms, the structure of the Moroccan judiciary system represented one of the foremost challenges for the colonial administration to address. The regionally-dependent systems of justice based on religious and/or local customary norms comprised a nebulous and complicated layout for the French to administer. As such, colonial authorities set out to standardize and centralize the judicial system gradually, yet leave the essential frameworks of local and traditional jurisprudence in place.
The French administration thus sought to delineate and maintain four separate systems of justice. These included one system for Arabs adhering to shariʿa norms and another for rural Berber tribes adhering to their own customary norms.[2] The French political motivations for this legal separation have attracted wide speculation, particularly with regard to establishing an autonomy-for-loyalty paradigm with the Berber tribes.[3] In the first official iteration of the so-called Berber policy, a Sharifian Decree—an order officially signed by the monarchical Sultan of Morocco[4]—on September 11, 1914 vaguely declared that the government would allow Berber tribes to retain their own laws and customs out of “respect” and “deference”[5] for them.
In the following years, the administration attempted to codify parts of the legal systems that had existed only in a loose and diffuse form before the Protectorate. Civil matters (e.g. personal status and property matters) in shariʿa zones fell under traditionally-trained Islamic judges (qādīs) appointed by Sharifian Decree, while civil matters in Berber areas remained under the councils of tribal notables (jamāʿas) and their chiefs. In both jurisdictions, penal matters fell to the jurisdiction of a regional administrator (qāʾid in rural regions, pasha in urban regions) appointed by the Sultan, whose actual reach of authority varied by region.[6] The government continued to define (or perhaps leave purposefully ambiguous) jurisdictional and procedural adjustments over the next two decades,[7] yet the very premise of the so-called Berber policy required French administrators to maintain the local legitimacy of local institutions like the jamāʿa.[8] These gradual legal reforms rendered the Berber justice systems more administratively accessible and impervious to the influence of shariʿa norms.
The early French administration’s use of “circulars”—a sort of internal executive order from the Residence—presented a more circuitous way for authorities to enforce regulations without changing them explicitly. In the years leading up to the 1930, these circulars reacted to increasing anxiety that the jamāʿa system in particular—whose actual procedures and norms remained somewhat nebulous to French administrators—would lack credibility for the increasing foreign settlers in these jurisdictions.[9] This concern, along with the continuous paranoia that tribes could turn to shariʿa, led the French administration in the late 1920s to move beyond the set of official and unofficial means by which they had balanced their stance toward the Berber justice system.
The Sharifian Dahir of May 16, 1930
On May 16, 1930, Sultan Muhammad Ben Youssef (later King Muhammad V) signed a decree of eight articles concerning the “current state of justice for tribes of Berber customs.”[10] The Decree’s preamble first reaffirms the government’s commitment since the 1914 Decree to respect Berber customs. However, it states that with increasing tribes officially classified within the customary system, the time has come to “specify the particular conditions that justice will be rendered.”[11] Without any other justificatory or contextual reference in the document, the Decree proceeds with concise language to stipulate these changes, the most significant of which I will outline further below.
The first article affirms that tribal chiefs (and by extension, their respective jamāʿa) have competency analogous to the qāʾids in shariʿa territories, meaning both would adjudicate violations of civil matter. It then states that Article Four and Article Six will stipulate the adjudication of other violations. Having thus explicitly conferred legal legitimacy to traditional Berber authorities, the Decree then calls for the creation of a Customary Court of Appeals in Article Three. Article Four establishes the authority for these appellate courts to adjudicate appeals from decisions rendered by the tribal chiefs authorized in Article One.
The appellate court structure represented a procedural departure from tradition (as had the shariʿa appellate courts), but Article Six represented perhaps the most significant change to the Berber judicial system in the history of the Protectorate. It formally assigned all criminal proceedings in customary jurisdictions to French courts using French rules, regardless of the status of the alleged perpetrator. This subjected a distinct part of the Moroccan population to French courts, but it formally cut off the qāʾid from authority. Since the qāʾid essentially served as a Palace-appointed intermediary, the Decree thus galvanized the legal line between the Palace and the customary populations.
Analysis: Rethinking “Divide and Rule”
Undoubtedly, the Decree’s repute in scholarly literature and popular lore has far more to do with the political movement that it sparked than with the actual legal changes that it promulgated. Indeed, the success of early nationalist leaders in organizing mass opposition to the Decree sparked the crystallization of a tangible nationalist movement, and the organized uproar ultimately forced French authorities to hedge the policy. Most parts of the Decree were never enforced, and a 1934 Sharifian Decree officially rescinded Article Six of the 1930 Decree.[12] Nevertheless, the so-called Berber Decree remained a rhetorical linchpin of nationalist politics as well as a curious phenomenon from the perspective of colonial studies.
As Edmund Burke shows, there is considerable evidence that the long-term plan of the Berber policy intended actually to “assimilate” Moroccan Berbers into French culture—a goal achieved largely by keeping them firmly separate from the jurisdiction of shariʿa.[13] In light of this broader French vision, the Decree might appear simply as an ill-timed reinforcement of this strategy. However, understanding the Decree only in terms of its political tensions overlooks the complex and often subtle legal maneuvering of French-led reform. Classifying the 1930 Decree as the foremost representation of a “divide-and-rule” policy therefore requires careful qualification.
On the one hand, there remains little doubt that the French political vision of the Protectorate led them to negotiate willfully the tension between systematic legal centralization and keeping traditional Moroccan legal institutions. This, at least in part, was the primary rationale of retaining (if only nominally) local institutions like the jamāʿa, the qādī, and the qāʾid. On the other hand, the French enacted this vision by tweaking the mechanisms of a developing legal system. As the gradual adjustments made clear, tangible and systematic regulations were crucially important for this system. In this regard, the French approach to reorganizing Moroccan shariʿa and customary judiciaries actually appear quite similar.[14]
The overall trajectory of reforms to the formal legal structures thus shows how the French sought to grasp Morocco’s multivalent judicial system in order to gradually manipulate it through its own devices. As a result, the ultimate pitfalls of this maintaining the legal line between the Berber and shariʿa systems are not merely the result of a heavy-handed attempt to incite political destabilization. Rather, the precise mechanisms of this manipulation reveal an interminable process of imposing top-down judicial systemization onto local frameworks of justice.
[1] Following years of influence and pressure from France, Moroccan Sultan Abdelhafid signed the Treaty, whose eight articles subsumed Morocco under France’s military, political, and economic tutelage. In particular, Article Four of the Treaty called for any new measures to be implemented upon proposal of the French government and implementation by the Sultan (see Footnote 3). Stéphane Bernard, The Franco-Moroccan Conflict 654-655 (1968).
[2] The other two systems were Rabbinic law for Jews and royal (makhzani)) administrative law.
[3] This also included the notion that Berber law was more malleable compared to shariʿa (understood as religious and thus immutable). Moroccan nationalist leaders later derided the Berber policy as an attempt to deprive Berbers of Islam and fracture Morocco into disunity.
[4] Although Sharifian decrees officially emanated from the Palace (makhzen), French administrators regularly employed a variety of tactics throughout the Protectorate era to coerce the Sultan’s signature for these decrees.
[5] [Sharifian Decree of September 11, 1914], 73 Jarīda Rasmiyya 407 (September 14, 1914).
[6] “Serious crimes [in Berber territories]… were reserved for the Chambre Criminelle of the Haut Tribunal Chérifian… The matters which came before a caid were so minor and so dependent upon local knowledge that a lawyer could have confused rather than served the ends of justice by his intervention.” Robin Bidwell, Morocco under Colonial Rule 270 (1973).
[7] Notably, a 1922 Decree outlined special rules for property transfer to strangers within Berber jurisdictions, ostensibly to resonate with the emphasis on protecting property in customary law. Id. 271.
[8] A Sharifian Decree in 1916 conferred jurisdiction over public properties to the tribal jamaʿas [Sharifian Decree of November 21 1916] 958 Jarīda Rasmiyya 190 (December 18, 1916).
[9] Id. at 275; Caillé, supra at 82-83
[10] [Sharifian Decree of May 16, 1930] 919 Jarīda Rasmiyya 1322 (June 6, 1930).
[11] Id.
[12] [Sharifian Decree of April 8, 1934] 476 Jarīda Rasmiyya 1120 (April 13, 1934).
[13] Edmund Burke, The Image of the Moroccan State in French Ethnological Literature: A New Look at the Origin of Lyautey’s Berber Policy, 197 Arabs and Berbers (Ernest Gellner and Charles Micauds ed.s, 1972).
[14] As pointed out in: Dörthe Engelcke, Processes of Family Law Reform: Legal and Societal Change and Continuity in Morocco and Jordan 71 (PhD Dissertation, 2014). In both jurisdictions, the government sought to codify the legitimacy of traditional authorities while also introducing new phenomena like appellate courts.