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Published online by Cambridge University Press: 26 January 2016
Colonial regimes tended to change existing legislation and judicial structures, and to introduce new legal systems. When the previous legal system was partly upheld, and especially when a number of legal systems were already in effect, a complex and plural system would emerge, often with contradictory principles and normative assumptions. As a result, the colonial government faced inevitable dilemmas regarding the priorities it should grant to the different legal systems, and the means it should use to mediate conflicts among the different perspectives. Much has been written over the last few decades concerning the interrelation of colonial expansion and the transformation of law. The colonial government emphasized the necessity of changing existing legal systems, often portrayed as backward and unsuitable for the functioning of an empire and the global relations embedded in it. New colonial legislation was intended to achieve greater efficiency and the unification of colonial rule and to advance the “civilizing mission” by negating elements of existing traditions and introducing what the colonial rulers considered to be higher levels of morality. However, such changes ran the risk of being perceived as excessive intervention in the subordinated societies, and, therefore, might undermine the legitimacy of the colonial government.
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11. Regarding the term “clitoridectomy,” in academic literature pertaining both to the colonial past and to the present, different terms are used to convey the intervention in women's genitals. Erika Sussman uses the term “female circumcision,” and also presents the criticism raised against that term. Susan Pedersen and Claire Robertson use the term “clitoridectomy,” while noting the ritual significance of this act as part of age group initiation. Authors dealing with current debates and legislation use either the term “female genital mutilation” or “female genital cutting” (to avoid the strongly judgmental term “mutilation”). Finally Wairimu N. Njambi, herself from Kenya, uses the ritual term referring to women's age group initiation, in the local language: Irua ria Atumia..See Sussman, Erika, “Contending with Culture: An Analysis of the Female Genital Mutilation Act of 1996,” Cornell International Law Journal 31 (1998): 193–250Google Scholar; Pedersen, “National Bodies”; Robertson, Claire, “Grassroots in Kenya: Women, Genital Mutilation and Collective Action, 1920–1990,” Sings 21 (1996), 615–42Google Scholar; Njambi, Wairimu N., “Irua Ria Atumia and Anti-Colonial Struggles among the Gikuyu in Kenya: A Counter Narrative on ‘Female Genital Mutilation’,” Critical Sociology 33 (2007): 689–708CrossRefGoogle Scholar.
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19. In her article “Seduction,” Abu Lughod locates her criticism in the context of the growing animosity toward Muslim immigrants in the West. She expands on the political significance of the static culture-related portrayal of “honor killing,” liable to reinforce negative stereotypes of Muslim immigrants to Western countries, and to condemn Islamic culture as a monolithic entity. She claims that honor should be understood not as a sensational, extraordinary (and possibly exotic) performance, but as an important element internalized as a part of the way of life and identity of both men and women, young and old.
20. Norman Bentwich, England in Palestine (London: Kegan Paul, 1932), 284.
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24. Sussman, “Contending with Culture,” 229–30, 238–39; Pedersen, “National Bodies.”
25. Yang, “Whose Sati?”; Sussman, “Contending with Culture,” 229–35.
26. Sussman, “Contending with Culture,” 229–30.
27. Ibid., 234; Pedersen, “National Bodies,” 660–66.
28. Efrati, Women in Iraq, 20–40.
29. Ibid., 23–24.
30. Spivak, Gayatri Chakravorti, “Can the Subaltern Speak: Speculations on Widow Sacrifice,” Wedge 7/8 (1985): 120–30Google Scholar; Yang, “Whose Sati,” 17–27; Loomba, “Dead Women Tell No Tales”; Ashish Nandy, “Sati, A Nineteenth Century Tale of Women, Violence and Protest,” in Exiled at Home: At the Edge of Psychology, Essays in Politics and Culture (Delhi, Oxford University Press), 1–31.
31. Anghie, Antony, “Colonialism and the Birth of International Institutions, Sovereignty, Economy and the Mandate System of the League of Nations,” NYU Journal of International Law and Politics 24 (2001–2002): 523–28Google Scholar.
32. The special character of the British Mandate in Palestine and its impact on the later conflict between Jews and Palestinians, and between Israel and Arab states, led to a vast body of work. We will refer only to a very small number of such studies from a variety of scholars, British, Palestinian, Israeli, and others; Albert Hyamson, Palestine Under the Mandate 1920–1948 (Westport, CT: Greenwood Press, 1976); Tom Segev, One Palestine, Complete: Jews and Arabs under the British Mandate (New York: Henry Holt and Company, 2000); Henry Cattan, The Palestine Question (London: Saqi, 2000); Zeina Ghandhour, Discourse on Domination: Imperialism, Property and Insurgency (London: Routeledge, 2009); Ann M. Lesch, Origins and Development of the Arab–Israeli Conflict (Westport, CT: Greenwood Press, 2006); and Stein Kenneth, The Land Question in Palestine, 1917–1939 (Chapel Hill: University of North Carolina Press, 1985).
33. Mustafa Kabha, The Palestinian People: Seeking Sovereignty and State (Boulder, CO: Lynne Rienner, 2013), 9–23.
34. The position of Mukhtar, the state appointed head of a village or of an urban district, was first established by the Ottomans and further reinforced by the British Mandate administration. Ghandour, Discourse on Domination, 96–120.
35. Ted Swedenburg, Memories of Revolt: 1936–1939 Rebellion in the Palestinian Past (Fayetteville, AR: University of Arkansas Press, 1995).
36. Ibid., 40.
37. Salim Tamari, Mountain against the Sea: Essays on Palestinian Society and Culture (Oakland: University of California Press, 2008); Doumani, Beshara, “Rediscovering Ottoman Palestine: Writing Palestinians into History,” Journal of Palestine Studies 21 (1992): 5–28CrossRefGoogle Scholar; and Bernstein, Deborah and Hasisi, Badi, “Buy and Promote the National Cause: Consumption, Class Formation and Nationalism in Mandate Palestinian Society,” Nations and Nationalism 14 (2008): 127–50CrossRefGoogle Scholar.
38. Weber, Making Common Cause, 88–121.
39. Manar Hasan and Ami Ayalon, “Arabs and Jews, Leisure and Gender, in Haifa's Public Spaces,” in Haifa before and after 1948, ed. Mahmoud Yazbak and Yfaat Weiss (Dordrecht: Institute for Historical Justice and Reconciliation Republic of Letters, 2012), 81–96.
40. Bentwich, England in Palestine, 284.
41. Colonial Office, 1929–1933, 733/172, ISA.
42. Article 188, in The Imperial Ottoman Penal Code, trans. John Bucknill and Haig Utidjian (London: Oxford University Press, 1913).
43. Between the years 1939–1943, the High Commissioner sent the full minutes of court cases of murder to the Colonial Office in London. Thirty-five such court cases are available in TNA, of which five deal with murder of women on the grounds of family honor. Regrettably, we have no way of knowing if these are all the cases, or who initiated the sending of the minutes. This was not done before 1939 or after 1943. The high commissioner reported his decision to either endorse the capital punishment approved by the Supreme Court of Appeal, or to commute the sentence to long-term imprisonment.
44. Regrettably, among the cases that appeared before the SC, not all are available in the ISA or in the archive of the ISC.
45. All but four cases took place in rural Palestine, north and central. We have not yet come across any case from southern Palestine, despite the Bedouin concentration in that part, with their strict codes of honor and control of female sexuality. The Bedouin tribal court was not granted the right of adjudicating crimes of homicide, but such cases may well have remained unreported. Three cases took place in Jaffa. but at least one of them involved people from a village in southern Syria. One more case took place in Gaza.
46. In one of the two cases, the brother's claim to have suspected his sister's immorality seemed too far-fetched, whereas in the other. the accused killed two women, his former wife and mother-in-law, and neither the Court of Criminal Assize nor the SC recommended clemency.
47. The composition of the Court of Criminal Assize was decided, ad hoc, for each case. The chief judge was always appointed from the ranks of the justices of the SC.
48. According to the King's Order in Council 1922, the high commissioner was the representative of the king, and appeals regarding judicial verdicts were to be directed to him, and to be decided in consultation with the Advisory Council (at times referred to as Executive Council).
49. Our observations are similar to those made by Natalie Zemon-Davis in her Fiction in the Archives: Pardon Tales and Their Tellers in 16th Century France (Stanford: Stanford University Press, 1987). She demonstrated that petitions for pardon in sixteenth century France were structured along lines following accepted discursive norms.
50. Attorney General (AG) v. Kamel Ahmed Hussein el-Majdoub, (1944), ISA.
51. AG v. Atiyeh Faraj, 42/47 (1947), ISAGoogle Scholar.
52. AG v. Mahmoud Hassan Abdul Mun'em el-Soury, 39/47 (1947), ISAGoogle Scholar.
53. AG v. Imkheibir Kataf, 8/46 (1946) ISAGoogle Scholar.
54. Ibid.
55. Ibid.
56. Assaf Likhovski, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006).
57. AG v. Muhammad Salem Ishreim, 98/42 (1942), ISAGoogle Scholar.
58. AG v. el-Soury, 1947.
59. AG v. Ali Ibn Salameh Jadii, 57/40 (1940)Google Scholar, TNA. Court of Criminal Assize, judgement, 2
60. Ibid.
61. AG v. Muhammad Hassan Said Shihadeh, District Court, 43/45 (1945) ISAGoogle Scholar.
62. Judith E. Tucker, The House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Oakland: University of California Press, 1998).
63. Bailey, Bedouin law from Sinai and the Negev, 107–113.
64. AG v. Shihadeh, 1945, Conviction by District Court, 9 (Emphasis added).
65. AG v. Khader and Hamad Ibn Musa Tamam, 6/33 (1933). ISAGoogle Scholar.
66. The other brother was released, as two out of four judges accepted his claim not to have been involved in the killing.
67. AG v. Khader and Hamad Ibn Musa Tamam, 1933. The majority judgment was signed by Francis H. Baker (British), A. Guy Sherwell (British), and Shafiq Dajani (Arab).
68. Minority opinion of Judge A. Daoudi, AG v. Khader and Hamad Ibn Musa Tamam, 1933.
69. Ibid.
70. AG v. Kataf, 1946.
71. Ibid., Supreme Court of Appeal, Judgement, 2 (emphasis added).
72. AG v. el-Majdoub, 1944.
73. Ibid., Judgement of Supreme Court, 2 (emphasis added).
74. Nathan Brun, Judges and Lawyers in Eretz Israel (Jerusalem: Magnes Press, 2008), 289–92 (Hebrew).
75. Chief Justice Trusted to High Commissioner, AG v. Ali Ibn Salameh Jadii, 1940 (emphasis added).
76. AG v. Faraj, 1947.
77. Ibid., Letter of President of Court of Criminal Assize Justice Currie to High Commissioner, 2.
78. Justice Currie to High Commissioner Cunningham, Alan, in AG v. Mahmoud Abdel Hadi el-Kassas 67/47 (1947) ISAGoogle Scholar.
79. Justice Copland to High Commissioner MacMichael, AG v. Ishreim, 1942.
80. Justice Trusted to High Commissioner MacMichael, AG v. Jadii, 1940.
81. Justice Copland to High Commissioner MacMichael, AG v. Ishreim, 1942.
82. Peters claims that the British colonial government strongly opposed the role allotted to the victim and the victim's family in the judicial procedure. This was one of the grounds for British opposition to Islamic law, both in northern India and in Nigeria, both studied by Peters. Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2005).
83. Omri Paz, “Crimes, Criminals and the Ottoman State, Anatolia between the Late 1930s and the Late 1960s” (PhD diss., Tel Aviv University, 2010).
84. Petitions to the High Commissioner A. Cunningham, AG v. el-Majdoub, 1944.
85. AG v. Kataf, 1946.
86. In the case of Saleh el-Zawawi, the minutes of the trial are missing, and all we have are the petitions sent to the High Commissioner, John Chancellor. Mukhtars of Jerusalem, July 22, 1932. ISA M-268/23 (emphasis added). This does not necessarily mean that the writers were portraying the precise Shari'a position on murder aimed at redressing “family honor.” It does mean that in this case and in most other letters, the writers used religion as one of their major points of reference and as a powerful argument that the high commissioner could not easily reject.
87. Dignitaries of Hebron Distrtict to High Commissioner Cunningham, AG v. el-Majdoub, 1944.
88. Dignitaries of Hebron District to High Commissioner Cunningham, AG v. el-Kassas, 1947.
89. Petition of organizations in Jaffa to Cunningham, AG v. Kataf, 1946. The petition included two versions of the word “honor,” both related to women's sexuality: sharaf and ard. Both these terms are highly emotive terms dealing specifically with honor related to sexuality.
