Evidence rules of colonial difference [electronic resource] : identity, legitimacy and power in the law of mandate Palestine, 1917-1939

This dissertation traces the developments of Palestine's law of proof under British rule to explore both the relationship between culture and the rules of evidence, and between law and British colonialism. The conventional wisdom has thus far been that evidentiary rules and legal procedures in the colonies were "anglicized" rapidly and comprehensively, stirring little or no controversy. Such assumptions, however, have until now gone untested. Using Mandate Palestine as a case study, this dissertation demonstrates that evidentiary reform in British dependencies was a great deal more involved and contested than previously assumed. Far from being "anglicized, " Palestine's evidence rules maintained important distinguishing characteristics throughout the Mandate era. Incorporating insights from the political, intellectual and social history of the Middle East, the history and philosophy of science, and legal anthropology, this dissertation explores the factors that coalesced to shape Palestine's unique rules of evidence between 1917 and 1939. Drawing on never before examined archival documents in English, Arabic and Hebrew, including official and personal correspondences, petitions, court records and memoirs, this dissertation provides a nuanced and multifaceted analysis of the creation of legal norms in the colonial context. The dissertation avoids reducing the nature and origin of colonial law to a single feature, exploring instead the ongoing interaction between factors: it analyzes legal debates as concurrently negotiations over national, ethnic and religious identity as well as opportunities to further personal, domestic or imperial interests; it views the colonial courtroom and legal system as simultaneously a site for establishing legitimacy, or furthering British control of the local population, as well as an arena for political contestation and resistance. Though focused in time, place and subject matter, the insights of this study bear directly on our broader understanding of the complex, multifactorial relationship between law and colonialism. The dissertation identifies three distinct phases in the evolution of evidentiary norms in interwar Palestine. The first, pre-1929 phase, is characterized by British attempts to emulate existing Ottoman and indigenous institutions. This attempt reflected a broader British policy of accommodating "custom" and traditional dispute resolution mechanisms, as part of "Indirect Rule." The dissertation traces the cultural filters through which the British interpreted existing law, indigenous criminality and custom, as well as the social, religious and political grounds for Palestinian resistance to British legal reform. In the wake of the 1929 "disturbances, " British anxieties concerning their ability to maintain order led to a new approach, which abandoned operation through traditional institutions. British officials instead aimed at founding the law of proof on purportedly universal principles of science and imported, common-law based legal codes. Yet in practice, evidence law remained marked by colonial difference: in Palestine the British applied experimental and imprecise forms of forensic science, still deemed unfit for English courtrooms. Limiting the availability of common-law procedural safeguards, they also curtailed defendants' ability to effectively challenge such evidence in criminal proceedings. Finally, the dissertation explores the role of law during the 1936 Arab Revolt. Rather than constraining the arbitrary use of emergency powers, legislation during this third phase was designed to mask and legitimate executive abuses and to evade the "rule of law." Experimenting with Palestinian law, British officials pushed the boundaries of common law doctrines governing martial law and administrative detentions, inventing a legal framework that would later serve them in other parts of the Empire.

Keywords: Law.
Advisor: Kessler Amalia D. primary advisor. Thesis advisor
Fisher George
Friedman Lawrence M. (Lawrence Meir)