Kreiner on Oppostion to the Legislative Council in Mandate Palestine

Maya Kreiner, a doctoral student at the Hebrew University of Jerusalem, has published online and open access British Imperial Constitutional Law and the Zionist Campaign against the Legislative Council in Mandatory Palestine in Law and History Review:

This article examines the role of British imperial constitutional law in the Zionist campaign against establishing a Legislative Council in Palestine during the early 1930s. At the time, the British government sought to introduce limited self-government in Palestine through a parliamentary institution that would include both locals and British officials. However, the Zionist leadership opposed this initiative, fearing that a representative institution reflecting the country’s demographics would threaten the development of the Jewish National Home. This article explores the Zionist engagement with the British imperial constitutional experience within its campaign against the Legislative Council, emphasizing the strategic application of British constitutional law by two Zionist officials, Leo Kohn and Chaim Arlosoroff. Through this case, the article highlights the influence of British constitutional law on interactions between national movements and the British Empire. It argues that the British imperial system offered an adaptable and flexible political framework. The Zionists’ attentiveness to this flexibility not only sheds light on the interplay between Zionism and the British Empire during the mandatory period but also underscores the place of constitutional flexibility in political debates within the British Empire.

Israeli Legal History Bibliography

[We have the following announcement.  DRE.]

The David Berg Foundation Institute for Law and History at the Tel Aviv University Faculty of Law maintains a bibliography of secondary sources on Israeli legal history. We are currently embarking on another round of updates (the last was in 2020), and we would welcome help in bringing publications, whether new or previously overlooked, to our attention.

We are looking for publications, in any language, with a substantial connection to the legal history of Israel, beginning with the late Ottoman period (from c. 1800) up to the year 2000. If you work in the field, we'd appreciate your looking over the current list and sending us bibliographic information on any sources we're currently missing.

Please send information on sources or any questions to Ms. Asil Sager (asilsager25@gmail.com) or to berg@tauex.tau.ac.il.

[H/t: H-Law]

Birnhack on Branding Jaffa Oranges

Michael Birnhack, Tel Aviv University Buchmann Faculty of Law, has posted The Emergence of a Brand: A Case of Jaffa Oranges from Mandate Palestine, which is forthcoming in the Research Handbook on the History of Trademark Law, edited by Lionel Bently and Robert Bone (Edward Elgar, 2022):

The Shamouti oranges grown along the Mediterranean coast of Palestine under the British Mandate (1922-1948) sparkled in European markets in the 1920s and 1930s. The oranges were known as Jaffa Oranges, or Jaffas, and gained economic importance during the Mandate. Today, the Jaffa Oranges brand is contested and has opposite national meanings for Israelis and Palestinians. This chapter explores the emergence of the brand, when Jews and Arabs worked alongside each other and on occasion together, albeit with growing national tensions.

The brand emerged in a multi-layered industry, with different kinds of competition in each of its segments: growers, traders, and foreign markets, and in a triangular legal setting. The law did not protect geographical indications, leaving JAFFA ORANGES free to all to use. The law did offer protection for distinctive trademarks. During the British Mandate, 102 trademarks for oranges were registered, by both Jewish and Arab growers and traders. Two-thirds of which used the geographical brand. Finally, a regulatory scheme established to assure the quality of the citrus exports, acted as a de facto certification, and resulted in numerous unregistered marks, known as markas.

This chapter offers a legal history analysis of the JAFFA ORANGES brand, by examining archival material and data from a reconstructed trademark registry of the period, along a legal inquiry, contextualized within the economic and national situation.

--Dan Ernst

Likhovski on Constitutional Duties in Israel

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Rise and Demise of Constitutional Duties in Israel, which is forthcoming in the American Journal of Legal History:

In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case-study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of duties discourse in Israel pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli law and society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.

–Dan Ernst.  H/t: Legal Theory Blog

Weekend Roundup

• In the op-ed pages of the New York Times: John Fabian Witt (Yale Law School) writes about how courts have historically responded to challenges to public health laws -- and how they are doing so today ("Republican Judges Are Quietly Upending Public Health Laws").

• In the Washington Post's "Made by History" section: Bruce J. Shulman (Boston University) on how "Court-packing — and other radical constitutional reforms — might save America"; Daniel S. Luck on how "Originalism threatens to turn the clock back on race"; and more.
  

• Via Religion & Politics: Ronit Y. Stahl (University of California, Berkeley) on "The Book of Ruth: Justice Ginsburg on Religious Freedom."
  

• The David Berg Foundation Institute for Law and History at Tel Aviv University has recently updated its bibliography of the history of Israeli law to expand its coverage down to 1977.  The compilers write that they have consulted Palestinian and Arabic-language sources and would be very happy to receive further references.
  

• We’ve previously noted that Linda Kerber will deliver the 2020 Charles Homer Haskins Prize Lecture from the College and Law at the University of Iowa at 3:00 PM Eastern Time on Wednesday, October 28 and our now please to pass along word that Constance Backhouse, ASLH delegate to the American Council of Learned Societies and a former ASLH president, and former ASLH Treasurer, Craig Klafter, nominated Professor Kerber was nominated for this prize.
  

• A recording of the 2020 Roger Trask Lecture of the Society for History in the Federal Government, delivered by Bill Williams, formerly Chief of the Center for Cryptologic History at the National Security Agency, is here.

• We just wanted to make sure you all knew about Aaron Sorkin’s The Trial of Chicago 7.  We still recall our viewing of the documentary William Kunstler: Disturbing the Universe, by the famous radical lawyer’s daughters.  

• The 14th Annual South Asia Legal Studies Workshop happened online this week, hosted by the University of Wisconsin Law School. It included a good crop of legal history papers (program here).

• "100 Years After the 19th Amendment: Their Legacy, and Our Future,” a traveling exhibit of the American Bar Association, opens at the University of Kentucky J. David Rosenberg College of Law on October 18.  Several events are planned, and the UK Law Library has created an accompanying website.  More.
  

• ICYMI: Jack Rakove on originalism and Judge Barrett (WaPo).  Sara Georgini, series editor for The Papers of John Adams, On the Peaceful Transfer of Power: Lessons from 1800 (AHA Perspectives).  Michael Koncewicz, Tamiment Library & Robert F. Wagner Labor Archives, on Loyalty and Duty in the Federal Bureaucracy, From Nixon to Trump (HNN).
  

• Update: Over at IEHS Online, the website of the Immigration and Ethnic History Society, Jane Hong interviews Lucy Salyer about Under the Starry Sky. (Also: it does have legs: I discussed Laws Harsh as Tigers in class this semester, too!  DRE.)
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

A Lost World? Jewish International Lawyers and New World Orders

[We have the following announcement.  The full--and footnoted--call is here.  DRE]

 Call for proposals: A Lost World?: Jewish International Lawyers and New World Orders (1917-1951)

The International Law Forum of the Faculty of Law at the Hebrew University of Jerusalem together with the Leibniz Institute for Jewish History and Culture –Simon Dubnow, at Leipzig and the Jacob Robinson Institute at the Hebrew University of Jerusalem are inviting proposals for papers to be presented at an international conference to be held mostly or partly online on 24-25 May 2021 (depending on the prevailing public health conditions). The conference will include invited speakers and other participants.

Stern on the Transition from Mandate Palestine to Israel

We don’t usually post abstracts for gated scholarship, but a pandemic is no time for foolish consistency.  Rephael G. Stern, a JD-PhD candidate in history at Harvard, has published Legal Liminalities: Conflicting Jurisdictional Claims in the Transition from British Mandate Palestine to the State of Israel in Comparative Studies in Society and History 62:2 (April 2020): 359-388:

This article explores the legal and temporal dimensions of the transition from British Mandate Palestine to the State of Israel on 15 May 1948. I examine the paradoxical character of Israeli jurisdictional claims during this period and argue that it reveals the Israeli state's uncertainty as to whether the Mandate had truly passed into the past. On one hand, Israel recognized the validity of the Mandate administration's jurisdiction until 15 May; I employ the Israeli trial of the British citizen Frederick William Sylvester to demonstrate how Israel even predicated its own jurisdictional claims on their being continuous with those of its predecessor. In this case, the Mandate administration was cast as having entered the realm of the past. Conversely, the Israeli state contested Mandate laws and legal decisions made prior to 15 May to assert its own jurisdictional claims. In the process, Israeli officials belied their efforts to bury their predecessors in the past and implicitly questioned whether the past was in fact behind them. By simultaneously relying upon and disavowing past British legal decisions, the Israeli state staked a claim on being a “completely different political creature” from its British predecessor while retaining its colonial legal structures as the “ultimate standards of reference.” Israel's complex attitude toward its Mandate past directs our attention to how it was created against the backdrop of the receding British Empire and underscores the importance of studying Israel alongside other post-imperial states that emerged from the First World War and the mid-century decolonizing world.

–Dan Ernst

Likhovski on Jewish Legal Scholars and Roman Law in Mandatory Palestine

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period, which appears in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie, ed. Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone (Torino: G. Giappichelli, 2019), 267-294:

In the early decades of the twentieth century, a group of Jewish legal scholars working in Eastern Europe, and later in Mandatory Palestine, sought to « revive » (i.e., modernize) Jewish law and turn it into the legal system of the Jewish community in Palestine — and later the legal system of the State of Israel. Inspired by the nationalist legal ideas of the German historical school, as well as the successful revival of the Hebrew language, the Jewish legal revival project created a body of scholarship on Jewish law, established the first Jewish law school in Mandatory Palestine, and even influenced the work of a unique communal court system that functioned in the Jewish community in Palestine until the end of British rule in that territory.

The Jewish legal revival project had an ambivalent attitude to Roman law (both ancient and modern). Modern scholarship on Roman law, especially nineteenth-century German legal scholarship, was seen as a model to be emulated by the Jewish legal revivers. Indeed, the Jewish legal revival project was often simply understood as a process of reorganization of the materials of Jewish law based on legal categories, models, and methodologies taken from modern Roman law scholarship. On the other hand, the legal revivers saw Roman law as the « other » of Jewish law, often arguing that the principles underlying the latter were utterly different from those of the former. Roman law was thus imagined and used by the early-twentieth-century Jewish law scholars discussed in this article in contradictory ways: sometimes as a legal system that should be emulated, and sometimes as a legal system whose norms and institutions should be shunned. Thus, as this article shows, Roman law, as it was described in the legal thought of the group of legal scholars I study, was used as a foil against which modern Jewish legal identity could be created.

 --Dan Ernst

Bhandar on colonialism and property

Brenna Bhandar, School of Oriental and African Studies, has published Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership with Duke University Press. From the publisher: 

In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.

Praise for the book: 

"I am obsessed with the force and eloquence with which [Bhandar] analyzes the birth of private property and its ongoing devastating effects. This book is going to be precious to me and many other people, too."  -Jordy Rosenberg

“Brenna Bhandar's enthralling book peels the veneer of property law from that which lies concealed beneath—the multiplicitous structures of dominance that define our contemporary settler-colonial world, all the way from Parramatta to Palestine. Here is a trenchant reassertion of the capacities of Marxist analysis to plumb dispossessions both historic and current, and to expose the entwined regimes of ownership and of racial hegemony that sustain them.” -Christopher Tomlins

“In this original study, Brenna Bhandar analyzes the constitutive role of colonialism in the development of modern property law and the modern legal subject. Bhandar's sophisticated comparative research on the political-economic imagination and legal infrastructure of settler colonialism is completely fascinating. And her stunning elaboration of what she names 'racial regimes of ownership' is utterly brilliant. A timely and essential book that will fundamentally change the way we think about race, property, and subjectivity.”  -Avery F. Gordon

Further information is available here.