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Orientalism and legal education in the Middle East: reading Frederic Goadby's Introduction to the Study of Law1

Published online by Cambridge University Press:  02 January 2018

John Strawson
John Strawson*
Affiliation:
School of Law, University of East London
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Abstract

Frederic Goadby's Introduction to the Study of Law, written for law students in British occupied Egypt and later Palestine, provides a significant record of colonial attitudes about Western law and the legal cultures encountered in the Middle East. Edward Said's Orientalism offers a deconstructive methodology which reveals the legal narrative of Goadby's work as offering an invitation to the students to become spectators, along with the colonists of their own legal culture. Once imbued with the spirit of English law, Egyptian and Palestinian students passed the test of civilisation. Goadby's book reminds us that while colonial occupation of territory may have ceased the impact of cultural occupations continue. For both coloniser and colonised this discourse becomes part of their legal inheritance, which creates much work for contemporary legal scholars.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 4 , November 2001 , pp. 663 - 678
Copyright
Copyright © Society of Legal Scholars 2001

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Footnotes

1

This essay is based on a paper given at the Middle East Studies Association Annual Meeting, Washington DC, November 1999. I would to thank Camille Mansour and Ghassan Faramant of the Birzeit University's Institute of Law for drawing my attention to Goadby's work. I would also like to thank Beverly Brown and the reviewers of this journal for the comments on earlier drafts.

References

2. Cromer, Lord Modern Egypt (London: Macmillan, 1911) pp 882–883.Google Scholar

3. Goadby, F M Introduction to the Study of Law: A Handbook for the use of Egyptian Students (London: Butterworths, 1910) p 4.Google Scholar

4. See generally, Fromkin, D A Peace to End All Peace: Creating the Modern Middle East 1914–1922 (London: Andre Deutch. 1989)Google Scholar; on Britain's role in Egypt, see Vatikiotis, P J The History of Modern Egypt (London: Wiedenfeld and Nicholson, 1991)Google Scholar; on Britain's role in Palestine, see Shepherd, N Ploughing Sand: British Rule in Palestine 1917-1948 (London: John Murray, 1999).Google Scholar

5. See Shehadeh, R ‘The Weight of Legal History: Constraints and Hopes in the Search for a Sovereign Legal Language’ in Cotran, E and Mallat, C (eds) The Arab-Israeli Accords: Legal Perspectives (London, The Hague, Boston: Kluwer Law International, 1996) pp 3–20.Google Scholar

6. See Shehadeh, R From Occupation to Interim Accords: Israel and the Palestinian Territories (London, The Hague, Boston: Kluwer Law International, 1997) pp 145–155.Google Scholar

7. See Shamir, R The Colonies of Law: Colonidism, Zionism and Law in Early Mandate Palestine (Oxford: Oxford University Press, 2000).Google Scholar

8. For the discussion on Law and Postcolonialism, see Fitzpatrick, P The Mythology of Modern Law (London: Routledge, 1992)CrossRefGoogle Scholar; Darian-Smith, E and Fitzpatrick, P (eds) Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999).CrossRefGoogle Scholar

9. Said, E W Orientalism (Harmmondsworth: Penguin Books, 1978)Google Scholar. See also Said, E W Culture and Imperialism (London: Chatto and Windus, 1993)Google Scholar.

10. Goadby, F M Introduction to the Study of Law: A Handbook for the use of Egyptian Students (London: Butterworths, 1910)Google Scholar.

11. Goadby, F M Introduction to the Study of Law: A Handbook for the use of Egyptian Students (London: Butterworths, 1914).Google Scholar

12. Goadby, F M Introduction to the Study of Law: A Handbook for the use of Students in Egypt and Palestine (London: Butterworths, 1921).Google Scholar

13. Goadby, F M International and Inter Religious Privute Law in Pulestine (Jerusalem: ‘Hamadpis’ Press, 1926).Google Scholar

14. Goadby, F M and Doukhan, M J The Land Law of palestine, (Tel Aviv: Shoshany's Printing Co, 1935)Google Scholar. A reprint of this has recently appeared: see Goadby, F M and Doukhan, M J The Land Law of Palestine (Holmes Beach: Gaunt Inc, 1998)Google Scholar.

15. Goadby, above n 12, p v.

16. Goadby, above n 12, p 72.

17. For a discussion of the Egyptian legal system, see Hill, E Mahkama! Studies in the Egyptian Legal System (London: Ithaca Press, 1979)Google Scholar; for a discussion on Palestinian legal culture, see Ay Nizam Qanuni li-Falastin? [Which Legal System for Palestine?] (Birzeit: Law Center, Birzeit University, 1996) in Arabic.

18. Said, above n 9, p 78.

19. The existence of legal narratives in popular and ‘high’ culture has a significant impact on the way in which law is socially constructed, and should increasingly form part of legal studies: see Redhead, S Unpopular Cultures: The Birth of Law and Popular Culture (Manchester and New York: Manchester University Press, 1995)Google Scholar. See also: Manji, A ‘Like a Mask Dancing? Law and Colonialism in Chinua Achebe's Arrow of God’ (2000) 27 J Law and SOC 626–642 CrossRefGoogle Scholar; Strawson, J ‘Legal Story-Telling After Diana and Dodi: The Disappeared of the Postcolonial’ in Tahirolgu, M, Ismael, T Y and Ismael, J S (eds) Globalization in World Affairs: Socio-Economic and Political Dimensions (Gazimagusa: Eastern Mediterranean University Press, 1999) pp 311–328 Google Scholar.

20. For a general review of Said's work, see Ashcroft, B and Ahluwalia, P Edward Said: The Paradox of Identify (London: Routledge, 1999).Google Scholar

21. Said, above n 9, p 20.

22. Sprivak, G C A Critique of Postcolonial Reason: Toward a History of the Vanishing Present (Cambridge, Mass and London: Harvard University Press, 1999) p 215.Google Scholar

23. For alternative views on Said, see: Bhabha, H K The Location of Culture (London: Routledge, 1994)Google Scholar; Ahmad, A In Theory: Classes, Nations and Literatures (London: Verso, 1994).Google Scholar

24. See Guha, R and Spivak, G C (eds) Selected Subaltern Studies (New York and Oxford: Oxford University Press, 1988).Google Scholar

25. Goadby, above n 10, p 4.

26. Goadby, above n 10, p IX. The use of the term ‘Mohammedan law’ will be discussed below.

27. See Strawson, J ‘Islamic Law and English Texts’ in Darian-Smith, E and Fitzpatrick, P (eds) Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999) pp 109–126.Google Scholar

28. Goadby, above n 10, p 1–2.

29. Goadby, above n 10, p 2.

30. Goadby, above n 11, p 3.

31. See Strawson, J ‘A Western Question to the Middle East: “Is There a Human Rights Discourse in Islam?”’ (1997) 19 Arab Studies Quarterly 31–58.Google Scholar

32. Sir William Hayter Recent Constitutional Developments in Egypt (Cambridge: Cambridge University Press, 1924) p 5.

33. Ibid, p 6.

34. Ibid.

35. It was the revolt against the Khedive by the nationalist Ahmad Urabi that provided the pretext for British intervention in 1882.

36. Above n 32, p 11.

37. Ibid, p 15.

38. Ibid, p 16.

39. Ibid, p 17.

40. See Brown, N J ‘Law and Imperialism: Egypt in a Comparative Perspective’ (1995) 29 Law and Society Rev 103–125.CrossRefGoogle Scholar

41. Goadby, above n 10, p 7.

42. Goadby, above n 12. pp v–vi.

43. For an intriguing discussion of the impact of the British on Law in Palestine, see Likhovski, A ‘In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine’ (1995) 29 Israel Law Rev 291–359 CrossRefGoogle Scholar. This is a very interesting piece, although its suggestive use of relational histories may be rather too soon in the still unequal Palestinian-Israeli conflict.

44. See Luke, H C and Keith-Roach, E The Hundhonk of Palestine (London: Macmillan, 1922) p 142.Google Scholar

45. Ibid.

46. By art 46 the 1922 Order in Council specified the law that the courts would apply in Palestine, this included Ottoman Law in force in 1914, Orders in Council and English common law and the doctrines of equity. On the situation in Palestine at this time, see: Storrs, R Orientations (London: Ivor Nicholson and Watson, 1937)Google Scholar; Bentwich, N England in Palestine (London: Kegan Paul, Trench, Tuner, 1932)Google Scholar; Keith-Roach, E Pasha of Jerusalem: Memoirs of a District Commissioner under the British Mandate (London and New York: Radcliffe Press, 1994).Google Scholar

47. For an insight into how British officials at all levels saw their role in Palestine, see Sherman, A J Mandate Days: British Lives in Palestine 1918-1948 (London: names and Hudson, 1997)Google Scholar.

48. He refers particularly to: Sir Henry Maine Ancient Law (London: John Murray, 1861) (ten editions were published by 1917); Sir Henry Maine Early English Institutions (London: John Murray, 1875).

49. Goadby, above n 10, p 8.

50. Fyzee, A A A An Introduction to the Study of Mohamedan Law (Calcutta: Oxford University Press, 1931) p 8.Google Scholar

51. Shari'a is the Arabic term for Islamic law (‘the path’), whereas quanun means ‘law’ or ‘a law’ in the secular sense, such as norms which might result from legislation.

52. Goadby, above n 10, pp 21–22.

53. Maine's thesis that the legal moves from status to contract as ‘progressive societies’ develop has a resonance within colonial legal thinking.

54. Goadby, above n 10, pp 25–21.

55. Ibid, pp 30–31.

56. Austin argues that law is the command of the Sovereign and that the test of the command is that that it is an order backed by a threat: see Austin, J The Province of Jurisprudence Determined (London: Weidenfeld and Nicholson, 1954).Google Scholar

57. Goadby, above n 10, pp 38–39.

58. Ibid, p 39.

59. Ibid, p 42.

60. Ibid, p 51

61. This mission is well recorded in Berriedale Keith, A The Constitution, Administration und the Laws of Empire (London: Collins, 1924)Google Scholar; the references to Palestine appear at pp 301–304. The work is part of a 12-volume series edited by Hugh Gunn under the title The British Empire—an attempt at a comprehensive look at the project.

62. Sir Holdworth, W S ‘Foreword’ in Levy-Ullmann, H The English Legal Tradition: Its Sources und History (trans Mitchell, M; revised and edited Goadby, F M) (London: Macmillan, 1935) p v.Google Scholar

63. I have attempted to argue that it might to be possible not so much to recover as to reconstruct legal cultures in these circumstances: see Strawson, J ‘Palestine's Basic Law: Constituting New Identities Through Liberating Legal Culture’ (1998) 20 Loyola of Los Angeles International and Comparative LJ 411–432.Google Scholar

64. For information on the Birzeit Institute of Law including the Masters course, see http://www.birzeit.edu/law (last visited 15 January 2001).