An Introduction to English-Language Literature on Israeli Legal History
An Introduction to English-Language Literature on Israeli Legal History
This website is an impressive new resource for speakers of English who want to have access to the law of Israel. It is also a route into the legal culture of Israel and so it occurred to me that some visitors to this site may also be interested in the relatively new - but growing and vibrant - field of Israeli legal history. Most of the literature in the field is written in Hebrew, but a good number of books and articles have been written in, or translated into, English. It is the goal of this article to provide a short guide to some of that material.
Legal history is a relatively new academic field. Although jurists have always been interested in the development of the law and legal principles, legal historians, are typically concerned with more than the history of legal doctrine and legal institutions. They are preoccupied with the history of the law in context and the relationship between law and other historical forces and phenomena. Legal historians understand law to be embedded in history even as history itself is influenced by law. They therefore seek not only to understand the development of the law itself but to use the law to shed light on historical phenomena more generally. As such, legal history is concerned with the mutual relationship between the law and the formation of national identity as well as developments in society and economics and culture more broadly. Legal history is often also comparative in nature, highlighting aspects of the law and legal culture by placing them in conversation with other disciplines and modes of interpretation.
The list that follows is by no means comprehensive, but I hope it will be a useful introduction to English-language literature on Israeli legal history. I have generally restricted myself to legal history proper - works that approach law as embedded in historical or cultural context - rather than works that describe the law or make prescriptive arguments about it. (For a list of online resources in English about Israeli law more generally and many relevant links, see this site from the Library of Congress.) The literature is very large so I have chosen to proceed thematically. I deal here with works that pertain to the pre-history of Israeli law, particularly in the period of the British Mandate of Palestine, and the formation of Israeli law in the early years of the state. A future post to this blog will deal with resources in legal history that pertain to the role of Judaism in Israel.
The most comprehensive bibliography of Israeli legal history is that found in Harris (2002a), a book edited by some of the most prominent legal historians in Israel. (This bibliography was updated in January 2014 by the David Berg Institute for Law and History at Tel Aviv University and is available here.) I have relied heavily on that bibliography in composing what follows.) The opening chapter of the book, Harris (2002b), offers a helpful historiography of Israeli legal history, pointing out that before the late 1970s, Israeli legal history was largely confined to internal formalistic legal discourse focusing mainly on decisions of the Israeli Supreme Court and works written by legal practitioners like memoirs and biographies. After that time, under the influence of non-formalist schools of jurisprudence, the field of legal history began to establish itself more firmly. From the 1990s it expanded substantially as a series of younger historians and other scholars pursued work in this field. The article continues to survey some of the categories of Israeli legal history. It also places the field in the context of Israel as a relatively new state. It explains why historians of Israeli law tend to emphasize the investigation of constitutional questions and the role of the Supreme Court (and particularly its rights discourse.) It also connects trends in the field of legal history to that in Israeli historiography more broadly, particularly the “New Historians” who, in the 1980s, began to challenge Israel’s hegemonic historical narrative.
More recently, the most important book to be published in the field in English is Law and the Culture of Israel, by Menachem Mautner (2011), a professor of Law at Tel Aviv University. The book provides a good understanding of the changes and trends in Israeli law in since its establishment. Mautner is open about his adherence to a particular jurisprudential (and therefore also political) consideration that frames his narrative. He advocates a more formalistic jurisprudence and is concerned with the consequences of what he considers to be a move to a “values-based” judiciary, particularly in the Supreme Court under the influence of its President (1995-2006), Aharon Barak.
The Israel Law Review is Israel’s oldest English-language law journal. It is available on the usual online databases including Lexis and Hein. Since its establishment in 1966, it has published a great deal of material of interest to legal historians. Issue 24:3-4 from Summer-Autumn 1990 contains nearly thirty articles that offer useful overviews of different fields of Israeli law as they were seen on Israel’s 40th anniversary. Appearing about a decade later, Lahav (2001) is a discussion of the field of legal history by one if its pioneering practitioners.
Likhovski (2006) is technically not an overview of Israeli legal history. Nevertheless, it is such an indispensable book for the field, and offers such valuable historical and conceptual framing that it deserves to be mentioned here. The book deals with the place of the law during the British rule of Palestine in the lives of the British, Zionists and Arabs. It is an exemplary work that illustrates the role of law as a tool of politics and identity formation in the context of the colonial experience, state-formation and resistance.
Israeli legal historians, in their search for the context of the formation of Israeli law, are often preoccupied with the relationship between Israeli law and the law of other countries. At its best, research in this area goes beyond the question of mere influence and engages with the dynamic relationship between Israeli law and its foreign counterparts, as well as the social, political and intellectual processes through which that relationship is mediated.
A key interest of legal history is the development of the legal profession and its institutions and their place in wider society and culture. This area of research also has an important bearing on the history of the formation of Israeli law more broadly.
Likhovski (2006) deals extensively with the development of the legal profession in Mandate Palestine, as does his earlier study, (2002). Both of these works show the role of legal education and the legal profession in the Zionist state-building enterprise. Likhovski’s insight is that the formation of the legal profession in Israel must be understood against the backdrop of British colonial policies and the complicated dance of national identity formation of Zionist society. For another approach to the same topic, see Ziv (2002).
Lahav (1997) is a masterful biography of Justice Shimon Agranat who served on Israel’s Supreme Court almost from its inception and later (1965-76) served as its President. Along the way, Lahav’s treatment deals with the institution of the court in general and the development of its role in Israeli society, including the early assertion of judicial independence even during a time of early national formation and strong executive authority. Agranat was also the court’s only American-born president and Lahav discusses the American influences on his jurisprudence and on Israeli law more broadly. (Lahav (2009) discusses the American influence on Israel’s law schools).
Despite the undeniable influence of American law on Israel’s legal profession (which, according to Sandberg (2009), has only increased since the 1980s), for several decades most of Israel’s jurists were educated in the tradition of German jurisprudence, as shown in Oz-Salzberger and Salzberger (1998).
There is a wealth of material that relates to the impact of pre-state law on the law of the State of Israel. This is a particularly fruitful field given the quick succession of rule from Ottoman to British in 1917 and from British to Israeli in 1948. It is also fertile ground for the examination of the relationship between law and imperialism, colonialism, and nationalism.
Our understanding of the legacy of Ottoman law is greatly enhanced by Agmon (2005), a wonderful close cultural study of the Muslim courts of the Ottoman period. (It should be remembered that the control of religious courts in Israel over the personal law - marriage, divorce etc. - of their respective communities is itself a continuation of the Ottoman Millet System.) Eisenman (1978) and Friedmann (1975a) are both studies of the survival of aspects of Ottoman law into the British period, which focus more on the sources of law than its cultural context. Likhovski (2007) deals with the absence of a “legal revolution” in 1948 and the persistence of Ottoman (and British) law into Israeli law after independence.
In addition to his Law and Identity in Mandate Palestine (2006), mentioned above, Assaf Likhovski has written about the ways in which the Britain anglicized law in Mandate Palestine (1995) and law as a site of cultural conflict between England and France (2008). Friedmann (1975b); Friedmann (1975c) both touch on the ways in which British common law persevered as a source of Israeli law even after 1948.
A number of recent works deal with specific areas of British law in Mandate Palestine. Likhovski (2010) has pursued an interest in the tax law of the Mandate period in different communities, both in terms of British Mandatory law and the law and custom of the internal organization of the Jewish community of Palestine, the Yishuv. (On this topic, see also Dagan, Likhovski, and Margalioth (2008).) Harris and Crystal (2009) explores the extremely complicated ways in which the British imported certain aspects of English corporation legislations into Mandate Palestine, a very difficult project because of the dynamic nature of English company law at the time and the existence of foreign and multinational corporations in Palestine. Hofri-Winogradow (2012) deals with the way that Zionists approached English law, particularly British trust law, during the Mandate period and the ironic fact that in certain cases the British actually attempted to curtail Zionist use of British trust law to preserve their own interests. Birnhack (2012) is about English copyright law in Palestine. Schorr (2014) deals with state policies on forestry and water use. For a very extensive treatment of land law in Mandate Palestine, see Bunton (2009) as well as Bunton (1999) and Bunton (2007).
Although in many respects 1948 is, naturally, a watershed year in the history of Israel, Likhovski (1998) has pointed out that 1948 did not have as great an impact on Israeli law as in other spheres of life. Still, legal historians are justifiably interested in the early years of the state and a particular focus of scholarship has been the debates over the constitution. Israel’s Declaration of Independence called for a constitution to be ratified by October 1948. Debates over whether to adopt a constitution or not, and if so, what kind of constitution to adopt, began before independence and continue to this day.
The debates in committees of the Knesset in the first months of the state are well represented in Emanuel Rackman’s almost contemporaneous study of their protocols (Rackman 1955). It is a common misconception that the fact that a constitution was not immediately adopted was the result of religious parties rejection of any constitution that is not the Torah. Although it is true that many Jewish religious leaders did want the traditional Jewish law to play a central role in the state, Rackman (1953) showed that it was not their objections that prevented a constitution from being adopted. Rather, (see Strum (2012),) the principle reason that no constitution was immediately adopted was Ben Gurion’s opposition to it on the grounds of the necessity for a strong unhampered executive power in the state’s early days. Ben Gurion’s interest in the British precedent for an unwritten constitution has been investigated in Aronson (1998). Nir Kedar has written extensively about mamlakhtiyut, (commonly translated “statism” or “étatism”,) the political theory adopted by Ben Gurion, and its role in his opposition to the constitution (Kedar 2007). Kedar has noted the Russian origins of mamlakhtiyut (2002) and has also written about the formation of an autonomous judiciary in the context of Israel’s turbulent early years (2008).
Despite all this, in the months before and after the declaration of independence, Israeli jurists devoted great efforts to the drafting of a constitution, often in consultation with jurists abroad. (Indeed, the Declaration of Independence itself owed a debt to the American Declaration of Independence (Shachar 2009). And see Troen (1999) for a study of the Hebrew translation of the American Declaration of Independence and the insights that yields into the history of both Israel and the United States.) Many constitutional drafts were produced. The most developed draft – which was widely circulated among Israeli leaders and would surely have been adopted had the constitutional conversation not been sidetracked – was by Leo Kohn. Amihai Radzyner, a prolific legal historian, has written about Kohn’s constitution for Israel (Radzyner 2010) and in Radzyner (2012), he pointed out the ways in which Kohn drew on his experiences with drafting the Irish constitution when he was working on the Israeli constitution. In the same article, Radzyner noted that Chief Rabbi Isaac Herzog, one of the Kohn proposal’s critics, relied on his own knowledge of the Irish constitution to mount his critique.
After 1948, cooperation between jurists in Israel and abroad continued. Likhovski (2009) describes a common research project during the 1950s and 1960s between jurists in Israel and in Harvard, in which Brandeis University also participated. Likhovski showed that this project, like the contribution of Israeli “legal aid” to Africa in the same period were not only about sharing expertise but also about “signaling” messages about the place of Israel in the world to the international community.
Part 2 of this bibliography will be devoted to the English-language literature on Jewish law in Israel.
Agmon, Iris. 2005. Family & Court: Legal Culture And Modernity in Late Ottoman Palestine. Syracuse, N.Y.: Syracuse Univ Pr.
Aronson, Shlomo. 1998. “David Ben-Gurion and the British Constitutional Model.” Israel Studies 3 (2): 193–214.
Birnhack, Michael D. 2012. Colonial Copyright: Intellectual Property in Mandate Palestine. Also available as: eBook.
Bunton, Martin. 1999. “Inventing the Status Quo: Ottoman Land-Law During the Palestine Mandate, 1917-1936.” The International History Review 21 (1): 28–56.
———. 2007. Colonial Land Policies in Palestine 1917-1936. OUP Oxford.
Bunton, Martin P. 2009. Land Legislation in Mandate Palestine. Cambridge: Cambridge University Press.
Dagan, Tsilly, Assaf Likhovski, and Yoram Margalioth. 2008. “The Legacy of English Tax Law in Israel.” British Tax Review, 271–84.
Eisenman, Robert. 1978. Islamic Law in Palestine and Israel: A History of Hte Survival of Tanzimat and Shari’a in the British Mandate and the Jewish State. Leiden: E. J. Brill.
Friedmann, Daniel. 1975a. “Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period, The.” Isr. L. Rev. 10: 192.
———. 1975b. “Independent Development of Israeli Law.” Isr. L. Rev. 10: 515.
———. 1975c. “Infusion of the Common Law into the Legal System of Israel.” Israel Law Review 10: 324.
Harris, Ron. 2002a. The History of Law in a Multi-Cultural Society: Israel 1917-1967. Ashgate.
———. 2002b. “Israeli Legal History: Past and Present.” In The History of Law in a Multi-Cultural Society: Israel 1917-1967, 1–34. Ashgate.
Harris, Ron, and Michael Crystal. 2009. “Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine.” Theoretical Inquiries in Law 10 (2): 561–87.
Hofri-Winogradow, Adam S. 2012. “Zionist Settlers and the English Private Trust in Mandate Palestine.” Law and History Review 30 (03): 813–64.
Kedar, Nir. 2002. “Ben-Gurion’s Mamlakhtiyut: Etymological and Theoretical Roots.” Israel Studies 7 (3): 117+.
———. 2007. “Jewish Republicanism.” Journal of Israeli History 26 (2): 179–99.
———. 2008. “Democracy and Judicial Autonomy in Israel’s Early Years.” Bar-Ilan University Public Law and Legal Theory Working Paper 8 (3).
Lahav, Pnina. 1997. Judgement in Jerusalem: Chief Justice Simon Agranat and the Zionist Century. Berkeley: University of California Press.
———. 2001. “A ‘Jewish State. to Be Known as the State of Israel’: Notes on Israeli Legal Historiography.” Law and History Review 19 (2): 387–433.
———. 2009. “American Moment [S]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite US Law Schools?” Theoretical Inquiries in Law 10 (2): 653–97.
Likhovski, Assaf. 1995. “In Our Image: Colonial Discourse and the Anglicizatin of the Law of Mandatory Palestine.” Israel Law Review 29 (3).
———. 1998. “Between Mandate and State: On the Periodization of Israeli Legal History.” Journal of Israeli History 19 (2): 39–68.
———. 2002. “Colonialism, Nationalism and Legal Education: The Case of Mandatory Palestine.” In The History of Law in a Multi-Cultural Society: Israel 1917-1967, 75–93. Ashgate.
———. 2006. Law and Identity In Mandate Palestine. Chapel Hill N.C.: University of North Carolina Press.
———. 2007. “The Ottoman Legacy of Israeli Law.” Annales de La Faculté de Droit d’Istanbul 39: 71–86.
———. 2008. “Law as a Site of Anglo-French Cultural Conflict in Mandatory Palestine.” In La France, L’Europe Occidental et La Palestine, 1917-1948, 201–20. Paris: Mélanges du CRFJ, CNRS éditions.
———. 2009. “Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling.” Theoretical Inquiries in Law 10 (2): 619–51.
———. 2010. “Is Tax Law Culturally Specific? Lessons from the History of Income Tax Law in Mandatory Palestine.” Theoretical Inquiries in Law 11 (2): 725–63.
Mautner, Menachem. 2011. Law and the Culture of Israel. Oxford, New York: Oxford University Press.
Oz-Salzberger, Fania., and Eli. Salzberger. 1998. “The Secret German Sources of the Israeli Supreme Court.” Israel Studies 3 (2): 159–92.
Rackman, Emanuel. 1953. “Religious Problems in the Making of the Israeli Constitution (1948-1951), The.” Lawyers Guild Review 13: 72.
———. 1955. Israel’s Emerging Constitution, 1948-51. New York: Columbia University Press.
Radzyner, Amihai. 2010. “A Constitution for Israel: The Design of the Leo Kohn Proposal, 1948.” Israel Studies 15 (1): 1–24.
———. 2012. “The Irish Influence on the Israeli Constitution Proposal, 1948.” In The Constitution of Ireland: Perspectives and Prospects, edited by Eoin Carolan. West Sussex; Dublin: Bloomsbury Professional.
Sandberg, Haim. 2009. “Legal Colonialism-Americanization of Legal Education in Israel.” Global Jurist 10 (2).
Schorr, David. 2014. “Forest Law in the Palestine Mandate: Colonial Conservation in a Unique Context.” In Managing the Unknown: Essays on Environmental Ignorance, edited by Frank Uekotter and Uwe Lubken, 71–90. Berghahn Books.
Shachar, Yoram. 2009. “Jefferson Goes East: The American Origins of the Israeli Declaration of Independence.” Theoretical Inquiries in Law 10 (2): 589–618.
Strum, Phillipa. 2012. “The Road Not Taken: Constitutional Non-Decision Making in 1948-1950 and Its Impact on Civil Liberties in the Israeli Political Culture.” In Israel: The First Decade of Independence, edited by S. Ilan Troen and Noah Lucas. SUNY Press.
Troen, S. Ilan. 1999. “The Hebrew Translation of the Declaration of Independence.” The Journal of American History 85 (4): 1380.
Ziv, Neta. 2002. “Combining Professionalism, Nation Building and Public Service: The Professional Project of the Israeli Bar 1928-2002.” Fordham L. Rev. 71: 1621.
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