Judicial Practice as Islamic Law: The ʿAmal of Fez in Post-Classical Mālikī Legal Tradition

Abstract ʿAmal (judicial practice) is a critical feature of post-classical Mālikī law in the Maghrib. The scholars who have examined ʿamal contend that it presents a paradigm of Mālikī law’s flexibility and judicial responsiveness to custom ( ʿurf ). However, ʿamal also constitute a significant part of the regional Islamic juristic literature produced from approximately the 17th to nineteenth centuries. In this article, I examine how ʿamal of Fez became not only widely practiced but part of the mainstream Mālikī jurisprudential discourse in Morocco. I argue that understanding Islamic law’s mechanisms for discursive stability is critical for its well-established capacity to change through principles like ʿamal . I do so by analyzing three practices that contravened the prevailing Mālikī rule yet were widely practiced as ʿamal of Fez: female witnesses for spousal defects, the ṣafqa unilateral shared property sale, and the lafīfiyya twelve-person testimony (plus a fourth “counter-example,” the abandonment of the mutual spousal cursing oath ( liʿān ), that reinforces the argument). I pay special attention to jurists’ discursive techniques for entrenching ʿamal in Mālikī history and precedence in classical substantive Mālikī rules. In the end, I call to acknowledge ʿamal ’s inextricable status as Islamic law in Morocco and beyond.