World Congress for Middle Eastern Studies

Barcelona, July 19th – 24th 2010


Law in Action in the Colonial Middle East: A Site of Struggle and Negotiation between Collaboration and Resistance (1882-1948) (293) - NOT_DEFINED activity_field_Panel

· NOT_DEFINED date: THU 22, 9.00-11.00 am

· NOT_DEFINED language: English

· NOT_DEFINED description: Whereas the theme of “law and colonialism” has been quite widely studied by scholars of Asia and Africa since the 1980s (Hay & Wright 1982, Chanock 1985, Falk Moore 1986, Snyder & Hay 1987, Vincent 1988, Cohn 1989, Mann & Roberts 1991, Mommsen & de Moor 1992, Jeater 2007), it has received up to now little research attention on the part of the specialists of the Middle East (Eisenman 1978, Mitchell 1988, Brown 1990, 1995, 1997, Fahmy 1999, Strawson 2003, Ruiz 2004 [unpublished dissertation], Esmeir 2005 [unpublished dissertation], Likhovski 2006, Hanley 2007 [unpublished dissertation]).
This panel proposes to contribute to fill this gap of knowledge in the history of the region, by further investigating the avenues of research opened by the pioneering studies on the topic written on India and Sub-Saharan Africa. However, the papers presented in this panel will not approach law in the colonial Middle East from a theoretical perspective - which would highlight the pluralistic nature of the colonial legal system or the “reinvention” of native law and custom on the basis of textual evidence - , but rather from a socio-legal perspective, as a site of struggle and negotiation of the “colonial situation” among law-makers, law-practitioners and law-breakers, foreigners and locals, at various levels of society (Balandier 1951). With this general definition in mind, special attention will be given to the practices and interactions of these different actors, and more specifically to the complex dialectics of collaboration and resistance that took place among them within the multiple courtrooms that were used during this period (consular, mixed, shari‘a, and national courts, and special or military tribunals).

Chair: Prof. Dr. Gianluca Parolin (American University in Cairo, Egypt)

Discussant: Dr. Benjamin White (Princeton University - Dept. of Near Eastern Studies, USA)

Paper presenter: Binyamin Blum (Stanford University), “Subversive Legalities: The Rule of Law in Mandate Palestine”
Will offer an analysis of the transformation of the Palestine Supreme Court during the Arab Revolt (1936-1939). Binyamin Blum will argue that during the initial stages of the Revolt, far from serving as a rubber stamp for British actions, courts in Palestine were an important check on executive power. He will show more specifically how lawyers defending Arab individuals and organisations effectively used the British ‘rule of law’ vocabulary against the mandate government, and how until the end of 1936 they found an ally in Chief Justice McDonnell. Blum will then analyse the dismissal of Chief Justice Michael McDonnell, who was forced to step down in December 1936, and his replacement by Attorney General Harry Trusted, who proved more amiable towards the executive. By examining the criminal and administrative decisions taken by both judges, Blum will explore and contrast McDonnell’s and Trusted’s approach towards their conflicting roles and loyalties as members of the colonial service, who at the same time were charged with heading the judiciary. He will argue that, from 1937 onwards, with a mounting insurgency, growing tensions in Europe and increasing Cabinet oversight over events in Palestine, the mandate’s commitment to the rule of law began to slowly evaporate.

Paper presenter: Will Hanley (Florida State University), “The Pinnacle of Legal Pluralism: Egyptian Justice, 1875-1950”
Will explore the ways in which the empirical example of the Egyptian experience of legal pluralism between 1875 and 1950 conforms to or departs from recent theoretical studies of the phenomenon. On the basis of the study of the legal practices in an environment characterized by the parallel conversation and interaction of a dozen separate judicial systems (British, Egyptian, Ottoman, foreign and sectarian), Hanley will show, first that coercive power was the paramount determinant of the efficacy of legal institutions – thus underlining the key place of the forces of order in any study of legal pluralism –, and second that the concept of "forum shopping" demands revision in light of examination of the way that litigants actually used the pluralist legal landscape. Regarding this last point, Will Hanley will argue that, while forum shopping is typically cast as a dishonest practice, associated with individuals of unreliable allegiance, evidence from British Egypt suggests that the practice could equally be considered a sound and fair legal procedure.

Paper presenter: Nurfadzilah Yahaya (Princeton University), “The Uses and Reshaping of Islamic Law, English Law and the Law of Arabia by the Hadhrami Diaspora in the British Straits Settlements of Penang, Malacca and Singapore”
Will focus on how the members of the Hadhrami diaspora in Southeast Asia - who originated from Hadhramaut in present-day Yemen - engaged with common law in the British Straits Settlements of Penang, Malacca and Singapore. Although Arabs in the Straits Settlements attempted to utilize Islamic law as much as possible in matters of divorce, inheritance and ‘waqfs’, Nurfadzilah Yahaya will show how members of the Hadhrami diaspora were compelled for various reasons to use English law, sometimes to their advantage. More specifically, she will shed light on both the manner in which these Arab litigants constantly couched Islamic legal terms in terms of English legal discourse - that was understandably more accessible to English courts -, and the result of this process, i.e. the mutual influences and subsequent reshaping of Islamic law, English law, and the law of Arabia.