In 1953 a musical titled The Adventures of Nasseradin opened in Tel Aviv. One of its tunes, the “Song of Law,” had music and lyrics so appealing that overnight it became the most popular song in Israel. The subject of the lyric was a tyrant, the Emir of the Kingdom of Buchara. Two brothers were arguing over a pot, and the Emir in his capacity as judge, presided over their trial. His decree: plaintiff and defendant should be executed and the pot thrown into the royal treasury. The refrain was particularly catching: [1]
Citizens, raise your voices and sing
For truth and justice is the law of the Emir.
Almost immediately an anonymous artist transformed the lyrics, and the Israeli street found itself singing cheerfully:
Citizens, raise your voices and intone
For truth and justice is the law of Ben-Gurion
Citizens raise your voices and chant
For truth and justice is the law of the state.
I remember singing the refrain along with my friends. We thought it was funny, but at the age of eight we neither worried about the relationship between law, truth, and justice, nor concerned ourselves with the meaning of the ideology of statism under the reign of Ben-Gurion. The refrain and its incarnation came to memory only recently when I read about plans for the third revival of The Adventures of Nasseradin in Tel Aviv.
What, if anything, can this anecdote tell us about Israeli legal culture? In the spirit of formalism, should we dismiss it as thoroughly irrelevant? Should we assume that in the eyes of Israeli popular culture positive law was synonymous with truth and justice? Should the transformed lyrics be taken literally as a display of the admiration of Israelis for Prime Minister David Ben-Gurion, founding father of the state and by 1953 a towering figure in Israeli politics? Does it express the euphoric devotion to the five-year-old state, an intuition that Ben-Gurion and the state were somehow one and the same? Can one trace a hint of Utopian Zionism, the idea that in the new-old state truth and justice were the foundations of the law, contrasted, if you wish, with the law of the Emir in the kingdom of Buchara? Or perhaps a subversive reading is more illuminating, exposing some unhappy similarities between the law of the Emir and the law of Ben-Gurion and the fledgling state, both systems containing travesties of justice that could be overcome or tolerated only through humor and irony.[2]
Israeli legal history is a discipline much younger than the history of its fifty-three-year-old state. It began developing in the 1980s and gained momentum in the late 1990s.[3] In the entire state with its four major law schools and several law colleges[4] only five scholars consider legal history to be their main field of expertise.[5] And yet, Israeli legal history has proven to be an extremely exciting intellectual discipline, attracting many more scholars than these five. Asher Maoz and Leora Bilsky are only two of a growing number who find legal history an intellectually stimulating enterprise. The field’s vitality and zest are reflected in the decision of Law and History Review to publish the fine essays and commentary and to invite me to contribute more general reflections.
Let me begin by stating what I do not intend to write about. I shall neither offer more commentary on the splendid works of Maoz and Bilsky nor attempt to summarize what has been accomplished by Israeli legal historians so far.[6] Nor shall I provide a “Pocket Guide to the Common and Exotic Varieties of the Social/Legal Histories of Israel” à la Robert Gordon.[7] My premise is that this essay is an invitation to those unfamiliar with Israeli history and unversed in Hebrew to taste some of the milk, honey, and bitter herbs offered by the discipline. I shall present nine major ingredients in the Israeli legal history pot. More may be thrown into the dish, but I believe that these nine, taken together, clarify the recipe and stimulate the appetite. By way of conclusion, I shall throw a tenth ingredient in: the transformation of Israeli legal thought and its effects on the study of Israeli legal history.
Before I present the nine let me introduce the events and texts on which I plan to rely. Assuming that Law and History Review readers either have read or have easy access to the Maoz and Bilsky essays, and to the excellent commentaries offered by Abraham, Douglas, Luban, and Moglen,[8] I shall use the Arlosoroff and Kasztner affairs discussed in these works as reference points. For those unfamiliar with the basic facts, I provide a short summary in the footnote.[9] In addition, I shall address Israel’s Proclamation of the Establishment of the State (otherwise known as Israel’s Declaration of Independence, hereafter the Proclamation.)[10] The Proclamation provides what Lawrence Friedman has called the baseline against which legal historians work. Friedman suggested that “all legal history is, in a sense, critical; . . . it is directed against something, it revises something, it explores and criticizes something; and the question, in each period, is what exactly is it aiming to refute or replace.”[11] Following Friedman, I focus on the text of the Proclamation as the dominant narrative of Israeli history against which legal historians may apply a critical approach.
The nine ingredients I wish to highlight may be divided into three clusters. The first cluster comprises issues less or more conspicuously present in the Maoz and Bilsky essays: 1. The tension between land and people; 2. Partisan politics and conflicting visions of political truth; and 3. The Holocaust. The next cluster raises issues that are either dormant or marginal in the Maoz and Bilsky essays. This is not because the authors are unaware of their significance but because they have little to do with the problems the authors chose to address: 1. The Arab-Israeli conflict; 2. The status of women; and 3. The status of Mizrahim (Sephardi or Oriental Jews).[12] The third cluster concerns general issues that frame and illuminate the previous six: 1. The tension between universalism and particularism; 2. The question of Jewish identity as it is related to the Zionist/post-Zionist debates; and, to a lesser extent, 3. America’s legal system as an inspiration for Israeli legal developments and as an arena where Israeli legal conflicts are played out and displayed. As I shall try to show, each and every one of the nine ingredients finds expression in the Proclamation.
The First Cluster: Land/People, Politics, Holocaust
1. Land and People
Israel’s foundational document, delivered on May 14, 1948, states:
ERETZ-ISRAEL [(Hebrew)—the Land of Israel, Palestine] was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.
After being forcibly exiled from their land, the people kept faith with it throughout their dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom.
Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland. In recent decades they returned in their masses. Pioneers, ma’apilim [(Hebrew)—immigrants coming to Eretz-Israel in defiance of restrictive legislation] and defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, and created a thriving community controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood.[13]
This is the well-known narrative of exile and redemption, the return of the Jewish people to their homeland after two thousand years of absence. It is a tale of two millennia of steadfast commitment to faraway and beloved Zion, of pioneers, ma’apilim,[14] and defenders returning to their land, reviving a sacred language hitherto unused in everyday life, and sacrificing self-interest in order to build an agricultural base to the “new” old nation; of their holding an olive branch in one hand (loving peace) and a gun on the other (knowing how to defend themselves); of their devotion to the idea of progress for all. It is the grand opus of Utopian Zionism and it makes the spirit soar. For members of my generation, the first to grow up in the independent Jewish State, this tale has been a source of infinite pride and inspiration. The Proclamation was memorized in the classroom, read in school assemblies on every Independence Day (with great pathos and pomp), and it filled us, the little Maccabeans, with patriotism and righteousness. We felt intimately connected to our land, infinitely blessed not to have been born in exile, unquestionably entitled to our state and confident about the imminent realization of the “blessings of progress” for all.
The narrative assumes a unity between land and people. But no one could deny that “the people” arrived from elsewhere only recently. What then, is the legal history of Israel? Is it the legal culture of the land? If that land was “a desert,” was there no law before it was made to bloom? If there was law before the Zionist arrival, should it be ignored as irrelevant? If the history of the law to be studied is that of “the people,” should one start with the “pioneers, ma’apilim and defenders” or should one be interested in those who stayed or were trapped behind? Perhaps one should focus on “the inhabitants”? But then, should one distinguish between the Jewish community, that minority commonly called “the old Yishuv,” or should one study the majority of non-Jewish “inhabitants”?
The Arlosoroff and Kasztner affairs are rooted in the history of the Jewish people in Europe. Haim Arlosoroff, head of the political department in the Jewish Agency, was murdered two days after he returned from Germany, where he had negotiated a deal with Hitler’s government, known as the transfer agreement.[15] Rudolf Israel Kasztner[16] was accused of collaboration with the Nazis in Budapest. Thus, whereas the official narrative in the Proclamation is “Israel based,” opening, significantly, with “the land of Israel” and emphasizing the historical relationship between people and land, the legal history offered by Maoz and Bilsky is rooted in Europe. It concerns matters that did not happen, to use the terminology of the Proclamation, “in the homeland,” but rather in “exile.”[17] The intense interest of Israelis, Fifty years into statehood, in matters rooted in Europe seems to exist in tension with the implicit expectation of the Proclamation that Israeli culture would be fundamentally homeland-anchored and based. The unity between land and people appears to be much more problematic and tentative than that posited by the official narrative.
Israeli legal historians, thus, have (at least, and for purposes of simplification) three options: (1.) They may ignore the divide between life in exile and life in the homeland and examine the history of the people wherever it took place, provided that some connection to the Land of Israel is assumed. This, it seems, is what Maoz and Bilsky are doing. (2.) They may decide to make the land the focus of their study. At the same time, they may accept some “Zionist cutoff point.” Thus they may begin their study with the arrival of the “pioneers, ma’apilim and defenders” to the land (1882) or with the arrival of the British in Palestine (and the recognition of a National Jewish Home by the Balfour Declaration). Within these parameters, they may choose to treat the newcomers as special or strip them of their Zionist mystique and treat them as colonizers, no different from the British in India, the Dutch in South Africa, or the French in Algeria. They may choose to follow the footsteps of Assaf Likhovski who presents a marvelous picture of the interrelationship between the British, the Arabs, and the Jews in Palestine.[18] (3.) They may focus on the land but ignore any Zionist cutoff point. They may observe the Ottoman cutoff point of the Tanzimat (the reforms introduced between 1839–1876) or study the history of the land over the last several thousand years, from the law of the ancient Cna’an through the ancient Kingdom of Israel, Greece, Rome, Byzantium, and so on. Their study will thus include all governments and communities (Jewish as well as other).[19] Each of these options is bound to challenge the official narrative in the Proclamation. The dilemmas posed by each option reflect the infinite complexity of Israeli legal history.[20]
2. Partisan Politics and Conflicting Visions of Political Truth
The Proclamation presents us with a homogeneous group of Jews (“pioneers, ma’apilim and defenders”) who returned to rebuild the homeland in a spirit of progress and liberty.[21] Consensus and solidarity are projected and implied.[22] Nevertheless, both the Arlosoroff and Kasztner affairs expose Israel as we know it from the contemporary press: a nation polarized between Left and Right,[23] each side claiming a monopoly over “Zionism’s regime of truth.”[24] From the Arlosoroff affair we learn that very early on a fundamental abyss opened between the Socialist Camp led by David Ben-Gurion and the Nationalist Camp led by Vladimir Zeev Zabotinsky and later by Menachem Begin.[25] The two camps agreed on one fundamental idea: that the only solution to the Jewish problem is Jewish sovereignty over Jewish land. They did not agree on the borders of the homeland; on the appropriate means to accomplish the task of sovereignty; on if and when the end of sovereignty would justify the means to accomplish it; on the need or desirability of a Jewish working class, or on how high a place to assign to “Jewish” values in the reconstructed Israeli nation. The Left viewed socialism as the only road to progress, the Right preferred varying versions of capitalism.[26] Each side demonized the other and attributed to it treacherous and conspiratorial tactics as well as politics detrimental to “Jewish interests.” Arlosoroff was one of the most intellectual and articulate thinkers of the Zionist left and his writings addressed many of these questions.[27]
The Left maintained that spokesmen for the Right led a vile campaign against him, which ended in his assassination.[28] The Right maintained that the accusations, as well as prosecution of right-wing activists, amounted to blood libel, designed to hijack the imminent elections to the World Zionist Organization away from the Right and ensure the hegemony of the Left.[29] As eminent political philosopher Shlomo Avineri notes, the Arlosoroff affair “created an emotional and ideological rift within the nascent Jewish body politic in Palestine, parallel in its intensity perhaps only to the impact of the Dreyfus affair on French politics.”[30]
The Kasztner trial may be interpreted as a repeat performance. Its text concerned events in Europe, but its subtext was the conduct of the Zionist leadership in Palestine during World War II. In the eyes of the Right, the Left-dominated leadership was too meek and subservient, too willing to sacrifice the interests of Jews in Hitler-occupied Europe, too eager to curry favor with the British rulers of Palestine.[31] The Right felt that the establishment of the Jewish State was the direct result of its guerrilla warfare against the British and that, like the Zionist Congress, the state was hijacked and placed in the hands of weak and dishonorable opportunists (Ben-Gurion’s government). It was in this context that Kasztner was assassinated, after he, too, compared himself to Dreyfus.[32] It is no wonder that Israeli scholars like Maoz and Bilsky are drawn to study the history of these events. We are, in fact, presented with a Rorschach test of Israeli culture and society.
For Israeli legal historians, the historical intensity of the hostility between Left and Right may lead to interesting investigations. I shall mention only three:
First, today Israel is listed among the free market economies. Convention teaches that in the 1950s a series of pro-Labor statutes were enacted, which laid the foundations for a socialist Israel. To what extent were these statutes indeed pro-Labor? What was the position of the Right? What was the process by which change, cultural, economic, and legal, has occurred?[33]
The second is political liberalism. Caught between Left and Right, could Israel develop a liberal spirit or was liberalism the victim of these and other factors active in post-independence Israel? How were the foundations for political and civil liberties established, and how did the intense partisan conflicts affect them?[34]
Third, it is generally held as “self-evident truth” that Israeli judges are the ones who carried the liberal banner[35] and that the process of judicial appointments was insulated from the frenetic political climate. One may wish to study the history of the appointment process. In the early 1950s the process was deliberately removed from the Knesset and placed in the hands of an appointments committee, composed of two members of the executive, two members of Parliament, two members of the bar and three members of the court.[36] It would be interesting to study the trajectory of the members of the appointment committees (members of the Left? Right? Center?) and how much influence each yielded behind the scenes. For example, as Bilsky and Maoz tell us, there was no love lost between the attorney general, Haim Cohn, who represented the state at the trial, and Judge Benjamin Halevi, who decreed that Kasztner had sold his soul to Satan. Cohn was highly valued by the dominant party, Mapai, whereas Halevi became the darling of the Right. In 1960 and 1963, Cohn and Halevi, respectively, were appointed to the high bench. Was this a political deal or sheer coincidence?[37]
3. The Holocaust
The sixth paragraph of the Proclamation addresses the Holocaust as an “additional” justification for the necessity of a Jewish state:
The catastrophe which recently befell the Jewish people—the massacre of millions of Jews in Europe—was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State.
The Proclamation then enlists the Jewish survivors as supporters of the Zionist cause and proceeds to address the loaded question of “what did the Jewish community in Palestine do to help”:
In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be recognized among the peoples who founded the United Nations.[38]
In recent years a heated debate has been conducted about the place of the Holocaust in the struggle to gain statehood,[39] about whether the survivors were a means to an end (in the campaign over international public opinion to establish the state),[40] and whether the Yishuv (the Jewish community in Palestine)[41] indeed could claim to have done all that could be done to assist their brothers and sisters in Europe.[42] The Holocaust is an open wound in the Israeli psyche. It is no wonder that Maoz and Bilsky are drawn to study its impact on the legal system. Underlying the Arlosoroff and Kasztner affairs is a terrible question: what did the Zionist leadership do in the face of the rising menace of Nazism and could it have done more? Feeding the obsessive attraction to the Holocaust is guilt: did we do enough? Indeed, Maoz does not touch on this issue, but it lurks behind his analysis since Arlosoroff’s murder was intimately related to the socialist statesman’s negotiations with Hitler’s government. Kasztner’s “pact” with Eichmann was the focus of the judicial opinions analyzed by Bilsky. Close to the surface of the Kasztner trial lay an even more charged question: what did Ben-Gurion and other high-level officials of the Jewish Agency do to assist Central and East European Jewry?
Thus the assertion of the Proclamation that the Jewish community in Palestine had “contributed its full share” was a paper cover over a cauldron of boiling oil. Two observations come to mind. First, a careful reading of the paragraph in the Proclamation concerning the “full share” reveals that it is limited to the contribution made to the Allied effort in fighting the “forces of Nazi wickedness.” Thorny questions are left unasked: whether assistance to the Allies was in conflict with assistance to the trapped Jews or whether any subversion of the speedy execution of genocide would have detracted from the overall war effort against the German war machine.[43] Anger and bitterness over Jewish conduct in Palestine and in Nazi-occupied Europe were festering with full vigor during the 1940s and 1950s and erupted uncontrollably during the Kasztner trial.[44] The second observation is of a much lower magnitude but no less intriguing. How did Israeli legal culture approach the Holocaust in general and the Kasztner trial in particular?
Readers of Maoz and Bilsky should not assume that the Kasztner trial has been studied and debated in a way that, say, Dred Scott or Brown v. Board of Education have been in American legal historiography.[45] Indeed, Bilsky is right in stating that the Kasztner trial had been “almost forgotten.” Judge Halevi’s opinion (where he declared that Kasztner had sold his soul to Satan) was not immediately published in the official series of court opinions. That was a clear violation of the norm obtaining in Israel at the time, that important opinions by the district court would be published. The opinion appeared in print only ten years later, following the Eichmann trial and Halevi’s elevation to the Supreme Court.
Until the 1990s very little attention was paid to the trial. Furthermore, to this day, and certainly through the 1950s and 1960s, works addressing the Kasztner trial have focused mainly on Halevi’s opinion, ignoring the fact that it was overruled by the Supreme Court. A good example is the cameo appearance of the trial in Hanna Arendt’s Eichmann in Jerusalem. Arendt refers to Eichmann’s negotiations with Kasztner and concludes: “in Halevi’s opinion, Kasztner had ‘sold his soul to the devil.’ Now that the devil himself was in the dock he turned out to be an ‘idealist,’ and though it may be hard to believe, it is quite possible that the one who sold his soul had also been an ‘idealist.'”[46] Arendt neither cites the case (it was still unpublished when she wrote her book) nor tells us that the Supreme Court had a different view. It may well be that she relied on two other major works, both by partisan journalists, who similarly failed to mention the appeal.[47]
The failure of Israel’s government to provide for the timely publication of Halevi’s opinion, coupled with the failure of journalists and philosophers to pay attention to the appellate decision, make one wonder about the need for forgetfulness in the course of the search for truth. It is also worth mentioning that the Kasztner trial was not taught in Israeli law schools until the late 1990s and that despite the important place assigned to the Holocaust in the official narrative and ethos of Israeli society, Israeli law professors have not developed courses to study its legal ramifications during the first fifty years of statehood.[48]
I have said enough to show that the Holocaust has been an event of such dimensions and proportions as to make its full impact on Israeli culture and society almost incomprehensible. As Israeli legal historians begin to approach this issue in depth, they are bound to make important contributions to the field. The histories of the Law of Return, the Law Against the Nazis and the Nazi Collaborators, the Reparation Agreement with the Federal Republic of Germany and its legal administration (who received, how much, how did the mechanism of implementation work) and more will make fascinating studies. And there is more. As scholars wrestle with these materials, they will have to grasp the Holocaust in the larger picture of Israeli historical development. Have we trained our minds to look at Arabs and see Nazis?[49] Has the Arab/Israeli conflict been affected by the unbearable pain of the Holocaust?
II. The Second Cluster: Arabs, Women, Mizrahim
1. The Arab-Israeli Conflict
Arabs and the Arab-Israeli conflict do not appear in the above quotation from the Proclamation, yet their presence occupies much of the subtext. The opening words, Eretz-Israel, as well as the assertion that this is the homeland of the Jewish people implicitly banish the term Palestine and ignore the question of other peoples who may have a claim to the land.[50]The Palestinians are discreetly referred to, at the end of the quotation above, as inhabitants of the land. Arabs do appear at the very end of the Proclamation in the form of a direct appeal to both the Palestinians and the Arab states:
WE APPEAL—in the very midst of the onslaught launched against us now for months—to the Arab inhabitants of the State of Israel to preserve peace and participate in the building of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.
WE EXTEND our hand to all neighbouring states and their peoples in an offer of peace and good neighbourliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land.[51]
The official narrative tells the following story: the “pioneers, ma’apilim and defenders” came to Eretz Israel to reclaim their homeland and bring the blessings of progress to all. Their assumption was that the Arab inhabitants as well as the neighboring Arab states (all members of the undifferentiated “Arab nation”) would or could be content with the many Arab states already in existence, would recognize the noble mission and good intentions of the Zionists, and would embrace them with brotherly goodwill. This did not come to pass. Violence soon erupted, in the course of which the Jewish community was peace loving and adept at self-defense.[52] The Jews were willing to partition the land (give up a part of their homeland) in accordance with the United Nations Resolution of November 29, 1947, but the Arabs declined the offer and plunged the region into war.[53] The two paragraphs addressed to the Arab nations and to Israel’s Arab inhabitants make clear that the Arab-Israeli conflict is in fact two conflicts: a regional conflict between Israel and the Arab states and a domestic conflict between the Israeli Arabs and Israeli Jews. The third part of the triangle, the conflict between Israel and the Palestinians over the West Bank and the Gaza Strip, came only in the aftermath of the Six Day War of 1967. I shall say more below about the relationship between the Proclamation and the status of Palestinians under Israeli law.
Neither Maoz nor Bilsky mentions the Arab-Israeli conflict, nor do they have a reason to. The conflict is not a part of the events and texts that form the basis of their inquiry. But from the larger perspective, is it possible to argue that what has been known as “the Arab question” is interwoven into the very fabric of Israeli historiography? That no matter what issue one elects to study, one will always detect the thread of the conflict woven into the materials?
Take the Arlosoroff affair. I have already referred to the significance of Arlosoroff, the political leader, and to his intellectual weight in the Zionist movement. Consider now an example of his views on the Zionist-Palestinian conflict. In 1929 riots erupted in Palestine, triggered by disagreement over the status of the Holy Sites [the reader of current events may have the feeling of déjà vu, rightly so]. Dozens of innocent and defenseless Jewish civilians were murdered. The immediate spark that caused the conflagration was the effort by Jews affiliated with the Zionist Right to assert “national rights” over the holy sites. Arlosoroff responded:
How did we allow ourselves to be pushed into a hopeless policy of prestige; how did it happen that around us a system of provocations should develop, built up and directed with cunning; that we make out of an issue which has never been at the centre of our world [the Wailing Wall] a new idol; that we gave the Arab radicals a weapon which they can turn against us, not only with regard to the Palestinian fellah [peasant], but also with regard to the whole of the Muslim world; that we conduct a politics of bravura, which runs contrary to our main interests and which culminated in the bloody weeks we have experienced. . . .[54]
Arlosoroff’s strong views in favor of moderation and restraint vis à vis the Arabs’ rights in Palestine could not endear him to the Zionist Right. This, coupled with his willingness to negotiate with the Nazi government, turned him into an evil figure in the eyes of right-wing nationalists.[55]
It is also worthwhile to dwell on the alternative solution offered for the mystery of Arlosoroff’s murder. If right-wing zealots were not involved, who then murdered Arlosoroff? The conventional alternative story was that Arabs from nearby Jaffa were the perpetrators. Some suggested that these Arabs had a political motive; others thought it was a botched robbery attempt, or even an attempt to rape Mrs. Arlosoroff who was walking with her spouse on the beach.[56] As Maoz points out, the truth has not been found.[57] But what we do understand, more today than then, is the psychology of otherness and ethnic prejudice. Historically, Israeli social culture painted stereotyped Arabs in the dark colors of base criminality. The suspicion of the dark man who lusts after the white man’s woman lurks just below the surface of the theory that Arabs murdered Arlosoroff.[58] The prejudice against Arabs was shared by Left and Right. It is therefore not at all surprising that the alternative solution to the foul act focused on Arab criminality. The idea that a native Arab was the murderer probably leaped from the depth of the European immigrant subconscious. The political advantage of such an explanation was evident. If indeed Arabs were responsible, then all Jews, Right and Left, could rally in solidarity and indignation. That the Left insisted that Jews murdered Arlosoroff is an interesting comment on the political climate of 1930s Palestine.
It is easier to find a connection between Arlosoroff and the Arab-Israeli conflict than between Kasztner and the Arab question. After all, Kasztner arrived in Israel only in 1947 and was consumed with matters related to his activities in Budapest.[59] But even here the intuition that things do not happen in a vacuum proves useful. In 1956 Israel invaded and occupied Egypt’s Sinai Peninsula, in collaboration with England and France. In a moment of dizzy euphoria, Prime Minister Ben-Gurion declared that the Third Kingdom of Israel was at hand.[60] After all, what is more precious to Jews than Mount Sinai, where Moses delivered the Torah to the children of Israel? It was indeed one of these moments when both Left and Right rejoiced in the extraordinary display of Israeli prowess, a prowess that served as balm on the wounds inflicted by the Holocaust. The joy, alas, did not last long. President Dwight D. Eisenhower issued an ultimatum to Israel to withdraw forthwith. Ben-Gurion complied. Israelis felt hurt, disappointed, and humiliated. Ben-Gurion was denounced as a coward who had failed to protect the national honor and the nation’s security interests. Historian Yechiam Weitz, chronicler of the Kasztner assassination, recounts the events of the strenuous month of February 1957 as Abba Eban, Israel’s ambassador to the United States, negotiated the final details with John Foster Dulles, the U.S. Secretary of State. Hovering over the negotiations was the U.S. threat of severe sanctions. On February 28, Minister of Foreign Affairs Golda Meir announced that Israel would withdraw from every inch of territory occupied during the invasion. Kasztner was assassinated during the following week of pandemonium.[61] It is not difficult to imagine how persons who were overcome by anger and shame could see Ben-Gurion as reenacting the Kasztner debacle. In both instances we have a Jewish leader (Ben-Gurion, Kasztner) negotiating with a very powerful and evil power (Eisenhower, Eichmann) and caving in to its dictates to the detriment of the national honor. It is not entirely far-fetched to assume that the angels of fury who roamed the streets of Tel Aviv in humiliated frustration perceived Kasztner to be an easy substitute for the despised Ben-Gurion.[62]
Was Israel’s legal system tolerant of the prejudice against Arabs? To answer this question we should return to the text of the Proclamation. In the middle, between recounting the official narrative of exile and redemption and appealing to the Arabs for peace and cooperation, the Proclamation presents its vision of Israel’s constitutional system:
THE STATE OF ISRAEL . . . will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex. It will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions.
Volumes will be written on the status of Israeli Arabs and the question of the extent to which this lofty and grand commitment has been fulfilled. Scholars will have to ponder the contradiction between the promise of full equality on the one hand and “appropriate representation” on the other hand.[63] The history of Israel’s land law, education law, conscription law, martial law, defense (emergency) regulations, and more will have to be examined (some of the work is already under way).[64] A sober assessment of the question of national security will be required. To what extent was the legitimate need to protect security fairly and legitimately deployed, and to what extent was it abused for purposes of marginalizing the native inhabitants?
The issue gains in complexity because the conflict has not yet come to an end. It is not clear that one has the necessary perspective to assess these events. Perspective may be distorted because of the volatility of the political situation, the “short” temporal distance from the historical events (when one gets to the ripe age of fifty-Five, a historical distance of fifty years looks short), and the powerful influence of the Holocaust on Israeli collective memory. I have suggested elsewhere that Israeli law is torn between the lofty ideas of Utopian Zionism and the anxiety produced by Catastrophe Zionism, the notion that Jewish history is about an endless chain of persecutions and pogroms.65 In this context, it may well be that the Arab too quickly replaced the Cossack, the pogromchik, and the Nazi. What was real and what was imagined, what was justified and what was unfair—that work has only begun.
2. Women
A central paragraph in the Proclamation promises that “THE STATE OF ISRAEL . . . will ensure complete equality of social and political rights to all its inhabitants irrespective of . . . sex.”[66] Thus Israel may proudly consider itself one of the first countries to recognize the notion of gender equality in its foundational document. Indeed, early Zionist social thought contains daring and insightful discourse on the status of women.[67]But those familiar with Israeli social history know that the struggle over gender equality inside the Zionist movement has been fierce and that women have largely lost the battle. By the time that the Women’s Equal Rights Law was passed in 1951 much of the radical fire in the quest for equality had been snuffed and women were recast in the traditional roles of wives, mothers, and (if necessary) providers of a second and extra income.[68]
The Proclamation promises women full equality, and yet actual women are not easily found in its text. Hebrew is a gendered language. In everyday interaction, terms like judge, attorney, prime minister, general, and professor designate the male, not the female, subject. The rule of modern Hebrew is that the female is subsumed under the male. Upon learning to read, the young female pupil is instructed to read male and think of the female as included. Therefore, when the Proclamation rhapsodizes about the “pioneers, ma’apilim, and defenders” in the male form, a female reader is expected to think not only of men but also of female “pioneers, etc.”
Should women be suspicious of the overwhelming domination of the male form in the Hebrew language? As usual, it all depends. The Proclamation does not mention women, but it does allude to a romantic relationship: that between the Jewish people (male) and its homeland (female). The love between the people and the land is a well-known attribute of Zionist culture. It dominates the poetry, Fiction, and popular songs of the period. The fascinating thing about this state of affairs is that here Zionism has managed to turn traditional Jewish culture on its head. Traditionally, the Jewish people was conceived as female (the daughter of Israel, Bat Israel) betrothed to the male Lord. With the rise of nationalism and the marginalization of the role of God in Zionist ideology, the people became male and the (newly reclaimed) land became the feminine beloved. The Zionist, heterosexual female reader was called upon not only to read male and imagine female but also to develop ingenuity in experiencing the same (sexual) passion for the land as would those (male) “pioneers, ma’apilim and defenders.”
One may argue that this analysis is too subtle and therefore that it proves little about the status of women at the time of the Proclamation. Certainly such interpretation cannot trump the clear and explicit commitment to gender equality in the text itself. Still, one hurdle remains: how should we explain the fact that of the thirty-seven signatories of the Proclamation, only two were women (about 5 percent). One thing is beyond dispute. The under-representation of women cannot be attributed to a lack of qualified candidates. There were scores of active women in Zionist politics, many of them formidable feminists.[69]
The identity of the two women signatories is important. One was Rachel Cohen-Kagan, a feminist who in 1949 formed the Women’s Party and was elected as its representative to the first Knesset. The second was Golda Meir. Cohen-Kagan’s ideas about genuine women’s equality failed to have an impact on Israeli law or culture and she quickly faded from the political scene. Golda Meir stayed, served in powerful cabinet positions, and in 1969 became Israel’s Prime Minister. The comparison between the histories of the two is, in a nutshell, the history of the status of Israeli women. Golda Meir is for some a mythical figure, a walking proof of Israel’s gender equality. The quintessential career woman, she embodied all the typical attributes of women who rose to power in the patriarchal world. In the 1960s and 1970s she was fondly referred to as “the only man in the cabinet.”[70] She never promoted women and jealously guarded her exclusive status as the only bird-of-paradise in the bouquet.[71] In the early 1970s, when the women’s movement in the United States began to make a mark and exported some of its ideas to Israel, Golda Meir caricatured and vulgarized it, thereby signaling the politically correct position for Israelis. In a 1972 interview with Oriana Fallaci, Prime Minister Meir had this to say about the Women’s Liberation Movement:
Do you mean those crazy women who burn their bras and go around all disheveled and hate men? They’re crazy. Crazy. But how can one accept such crazy women who think it’s a misfortune to get pregnant and a disaster to bring children into the world? And when it’s the greatest privilege we women have over men! Feminism . . . Listen, I got into politics at the time of the first World War . . . and I have never belonged to a women’s organization. When I joined the Zionist Labor movement, I found only two other women—ninety percent of my comrades were men. I’ve lived and worked among men all my life, and yet to me, the fact of being a woman has never, never I say, been an obstacle. It’s never made me uncomfortable or given me an inferiority complex. Men have always been good to me.[72]
While Rachel Cohen-Kagan, the sophisticated feminist who championed women’s rights disappeared from the political stage, Golda Meir went onward to amass power and prestige. It was she who became a role model for other successful women. It became a part of good etiquette for career women to emphasize that they were not feminists, that they never [sic] experienced discrimination, and that whatever help they got came from men, not women. The question of how and why the ringing promise of sex equality in the Proclamation failed to materialize and how the legal system chose to incorporate Meir’s view of gender relations rather than Cohen-Kagan’s view are topics that will yield fascinating studies in Israeli legal history.
Women are nowhere to be found in either the Maoz or Bilsky discussions, and rightly so.[73] Both the Arlosoroff and the Kazstner affairs reflect the domination of patriarchy in the Zionist movement, from its inception onward. Is it altogether impossible to find “the gender question” in these affairs?
Seema Arlosoroff, the slain leader’s wife, did occupy a central role in the Arlosoroff drama. She witnessed the murder and was the one who identified right-wing zealots Abraham Stavsky and Zvi Rosenblatt as the murderers. She served as the main witness for the prosecution, and her testimony was found credible by the Court.[74] Was she coached or otherwise steered in the direction of identifying the defendants as the murderers? Did the British put pressure on her? Did Ben-Gurion or his lieutenants? How did she feel when the defense claimed that it was she who had murdered her husband?[75] Was she used? Did she feel abused? A study of this lone, beautiful woman at the center of this maelstrom could tell us a lot about the status of women in Palestine of the 1930s.
During his trial, Kasztner was surrounded by women, almost all made invisible. There were his wife Elisabeth and his daughter Suzy. The pain of the relatives of such protagonists of political trials is not generally explored, but maybe it should be. Consider Elisabeth, a passenger on the Bergen-Belsen train, who arrived in Israel to learn that she was not an admired Holocaust survivor who had escaped death by the skin of her teeth but rather a villain, wife of a villain. Consider Suzy Kasztner, a young child subjected to verbal abuse by righteous Sabra children in her school and in her neighborhood. Consider Hanzi Brand, Kasztner’s female partner in the negotiations with Eichmann, who was unwelcome in the Kasztner home.[76] A study of the role of these women will turn the Kasztner trial into a richer, more human affair.
More than the others, one woman in the Kasztner affair deserves attention for the purposes of exploring Israeli legal history: Hanna Szenes. Szenes, a young Hungarian Zionist who arrived in Palestine burning with the commitment to build the homeland, sets the imagination on fire. Szenes volunteered to return to occupied Hungary, under British auspices, there to assist the resistance forces against the Nazis. She was captured, tortured, and executed. One argument against Kasztner was that he deliberately refrained from using his contacts in order to assist her. Szenes’s mother, who lived in occupied Hungary during the war and like the Kasztners survived and immigrated to Palestine, testified against him. Maoz has referred to the enduring significance of Hanna Szenes in the Israeli ethos.[77] Indeed, Szenes has been a mythic figure. In elementary school Szenes was our heroine. We memorized her poem “Happy is the match that burnt while igniting the fire.” It was a metaphor for the values of self-sacrifice and collectivity. Sacrificing yourself (burning) for the nation made you virtuous. Igniting a fire, whose flames stood for national renewal and freedom, was a positive good. We admired Hanna, who trained to be a paratrooper, for how she bravely landed in Nazi-occupied Hungary, and how, despite horrible torture, she refused to disclose her secrets to the enemy. What an inspiring model of gender equality: a young woman paratrooper who fought shoulder to shoulder with men.
As young girls, I and my classmates did not ponder the discrepancy between Szenes and our own future prospects. We were proud of the fact that when the time came we, too, would be drafted to do our military duty. We also knew that we should not dream of becoming paratroopers. That was a dream (complete with a red beret, a lovely blue pin depicting wings to be worn on the shirt of your uniform, and immense prestige)[78] reserved for men. If we were really attracted to parachuting, the (female) teacher explained (I am not making this up), we could aspire to become parachute folders, an honorable, responsible, and difficult task. Nor could we dream of applying to the highly competitive school for combat pilots. That, too, was the exclusive privilege of men. In the 1960s the popular slogan was “the best [men] to [combat] piloting and the best [women] to the pilots.” Ben-Gurion had foreseen it all when he wrote to his father in 1905: “The Hebrew Renaissance, here it is! . . . Here you cannot doubt, you cannot disbelieve! . . . Here is a Hebrew boy riding with assurance on a galloping donkey, a Hebrew girl . . . rides on a donkey loaded with freight—These are the visions of revival!”[79]
Only in the 1980s did Israeli women launch a program of legal challenges that would gradually change the gendered perception of women and bring down some of the significant discriminatory practices against them.[80] 43
3. Sephardie/ Oriental/ Mizrahi Jews—The Non-Ashkenazi Component of Israel’s Jewish Population
Between the Arlosoroff and the Kasztner affairs dramatic demographic changes occurred in Israeli society. In 1948 there were about 717,000 Jews in Palestine. Within a decade roughly a million more Jews arrived in Israel.[81] During Arlosoroff’s time most Jews in Palestine were Central and Eastern European. After 1949 the number of Mizrahi Jews swelled as the Jewish communities in Iraq, Yemen, Egypt, and the North African countries were liquidated. The timing is important because the “pioneers, ma’apilim and defenders” mentioned in the official narrative were mostly Ashkenazi, not Mizrahi Jews.
The history of Mizrahi Jews in Israel is captured by the various terms used to define them. Just as African-Americans have changed from colored people to Negroes to blacks to African-Americans, so have the Mizrahi Jews changed their preferred appellation. In the beginning they were called Sepharadim (those from Spain) to denote their origins in Spain before the expulsion in 1492. They were then dubbed “members of the Eastern sects” to designate the fact that they had arrived from various countries of the Orient (in English, Orientals) as distinct from the West. In the 1990s, as Israeli society became more sensitive to issues of equality and prejudice, the term was changed to Mizrahim (those of the East).[82] Historically, the Zionist community in Palestine, and later in Israel, identifying the Mizrahim with Arabs (whom we resemble in skin color and culture), saw us as inferior and gave us pejorative names such as “shwartzes” (“blacks” in Yiddish, as distinct from the “white” Europeans) or “Fraenks” (Yiddish for the ones from Southern France, as distinct from those from Germany—the Yiddish term for German is Ashkenaz). In my south-Tel Aviv neighborhood of the 1950s, Mr. Shouchman, the shopkeeper, was a good and honest man from Poland.[83] I remember him selling pickled fish and rye bread (the Eastern European staples—I would have loved to tell readers that he sold milk and honey, but in those days milk was distributed by the milkman and honey was a luxury rarely sold or bought) in his tiny store always full of customers. He was fond of proclaiming, “A Fraenk is a Chaye, a Fraenkina is a mechaya.” Everyone except for my mother would burst out laughing. The English translation for this Yiddish saying is: “A Mizrahi Jew (“Nigger” will also do) is a wild animal. A Mizrahi woman is a delight.” My mother did not know enough to analyze this as a reduction of herself to the position of sexual object, or of her husband to something other than human, but she would carry her groceries home feeling pained and humiliated.
The history of Mizrahi Jews in Israel is complex. On the one hand, there is prejudice, chronicled extensively in the literature and symbolized by the fact that only two of the thirty-seven signatories of the Proclamation were Mizrahi Jews.[84] On the other hand, the massive Israeli efforts at integrating the Mizrahim into Israeli society were formidable and deserve admiration. The government saw itself as responsible for Mizrahi integration, and within a decade all were settled, not happily, certainly with tremendous feelings of resentment and deprivation, but settled nonetheless. It is interesting to contemplate and study how prejudice lived side by side with the goodwill, generosity, and efficiency of Israel’s policymakers in the 1950s and 1960s.[85]
What were the legal manifestations of the status of Mizrahi Jews? The issue is much more subtle than that of the status of Israeli Arabs or women. In the case of Arabs and women, explicit legal norms discriminated or at least recognized differences. With regard to the Mizrahim, Israeli law appears to have been blind. Formally they have been treated as equal; any discrimination was justified on the basis of merit. Why was there no Mizrahi justice on the Supreme Court until 1962? Because there were no qualified candidates. Why was there a “Sephardic seat” on the Supreme Court if “we are all the same”? See above. Why has there been a dearth of Mizrahim among high school graduates? See below. Why have we seen so few Mizrahim among law school graduates, law faculties, and so forth? Because there were no qualified candidates.
Legal research into this question requires ingenuity and creativity. A splendid description of the ways by which prejudice against Mizrahim influenced law is Ron Harris’s essay, “Legitimizing Imprisonment for Debt: Lawyers, Judges and Legislators.”[86] Harris explores an intriguing question: if the Israeli legislature has been so committed to ideas of westernization, progress, and the protection of the working class, why then has the Ottoman law permitting the imprisonment for debt survived? Time and again, Harris finds, judges and lawyers opposed liberalization efforts by the Ministry of Justice. Harris provides a very complex and sophisticated analysis of the reasons for this history and adds:
The third [reason] is the tension between European Jews and Sephardi, or Oriental, Jews. Though European law was generally considered by Israelis of European origin as superior to non-European law, and particularly to Ottoman, Muslim and British (made for natives) colonial law, when it came to imprisonment for debt, these Israelis preferred to retain non-European law. The reason for this was more often hinted at, than explicitly stated; quite clearly, the population of Israel was not composed only of European Jews. Debtors of Oriental origins had to be disciplined by Oriental law, one that allowed imprisonment, otherwise they would not pay their debts. The correlation between socio-economic class and ethnic origin remained quite strong at the end of the twentieth century.[87]
Is the issue of Mizrahim anywhere present in the Arlosoroff and Kasztner affairs, where judges, lawyers, litigants, witnesses, and journalists covering the events were all Ashkenazi? As Maoz tells it, in 1982 Prime Minister Menachem Begin decided to appoint a commission of inquiry to review the fifty-year-old Arlosoroff affair.[88] In accordance with the law, the president of the Supreme Court, Moshe Landau, appointed a justice to chair the commission. The appointee was Justice David Bechor. Maoz does not tell us, and there is no reason why he should, that Justice Bechor was a Mizrahi Jew.
How did the Mizrahi origin affect the status and performance of the Mizrahi justices? The first Mizrahi judge to serve on the Supreme Court was Justice Eliyahu Manny. Although Manny served for sixteen years, his legacy remains an enigma. He wrote few opinions and was especially known for joining the majority opinions, writing simply “I concur.” Indeed, in my law school class of 1969 Manny was the subject of some ridicule for being such a predictable judge (always concurring without further elaboration). This is a phenomenon worth dwelling on. By all accounts, Manny was a substantial person with solid legal skills. Why, instead of growing into his role and developing a distinct voice, did Manny sink into silence? Was he overwhelmed by the knowledge that he was being observed? Did he dread the possibility of stumbling? Did he feel that his marginalized position would not allow him to participate in the judicial dialogue about national values?
Justice Manny was succeeded by Justice Bechor, who later chaired the commission of inquiry into Arlosoroff’s murder. I recently sent a flurry of e-mails to my Israeli colleagues in several law schools asking about Justice Bechor’s legacy. No one could remember anything except that he “Filled the Mizrahi seat.”[89] From the legal perspective, is there meaning to the fact that these two Mizrahi justices are remembered for their ethnicity and nothing else? Were they appointed because they were so docile as not to rock the boat? Were they marginalized on the bench? Did they experience any distrust of their abilities, any prejudice? Is this the reason for their silence? Is it possible that the president of the Court appointed Justice Bechor to the Arlosoroff Commission because he felt that it was a marginal commission that did not need an appointment of the best and the brightest? Or was Bechor appointed because his Mizrahi origin distanced him from a very “Ashkenazi” controversy?
It is also worth mentioning that Israelis tend to observe a hierarchy among Mizrahim. At the top of the ladder stand those known as “pure Sepharadim,” whose genealogy traces them directly to Spain of the middle ages. (America has its own small share of the pure Sepharadim, among them Justice Benjamin Nathan Cardozo.) These are considered to be the aristocracy, the Mizrahi equivalent of the American descendants of the Mayflower passengers. Down the ladder one finds Jews of Iraqi, Egyptian, Yemeni, and North African origins. It is interesting that both Justices Manny and Bechor were “pure Sepharadim” who, as Justice Haim Cohn tells us, are known for their civilized manners and restrained demeanor.[90]
The Kasztner affair may serve as a refutation of my argument. It is a reminder that prejudice and ethnic hierarchy were not only the lot of the Mizrahim. Israel of the 1950s was a harsh environment where immigrants of all colors and origins competed for a place; where negative stereotypes of the newcomers ran riot and intolerance of the other was the norm. Kasztner was repeatedly mocked for his heavy Hungarian accent and “exilic manners.”[91] The Ashkenazim may have been united in their prejudice against Mizrahim, but among themselves they observed a firm hierarchy according to which Hungarians were rather low on the totem pole and Romanians (across the Hungarian border, in Transylvania) fared even worse.[92]
Viewed from the perspective of prejudice against immigrants, the issue of Mizrahim is merely an illustration of a universal sociological phenomenon: immigrant societies are not kind to newcomers. This observation leads us to our third and final cluster: is Israel a unique phenomenon? The homeland of ingathered exiles? Or is Israel just another example of an immigrant society, different only in size from the United States, Australia, and South Africa?
III. The Third Cluster: Universalism and Particularism; Jewishness, Zionism, and Post-Zionism; America as a Mirror of Israeli Legal Culture
1. Universalism and Particularism
Orit Kamir observed that the Proclamation of the State of Israel contains not one, but two proclamations. One of its hearts pumps blood into a particularist vision, that of the uniqueness of the Jewish experience and the Jewish State; the other throbs with the commitment to shape Israel as a nation among nations, a democratic state respecting due process and individual liberties.[93] While the particularist commitment appears forcefully in the opening part of the Proclamation, its universalist twin appears in the middle:
WE DECLARE that . . . until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.”
THE STATE OF ISRAEL will be open for Jewish immigration and for the ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.
The first of the two paragraphs quoted above guarantees general elections, a constitution, and a parliamentary form of government, the second promises equality and liberty. Together, they project a commitment to a democratic, constitutional form of government. A constitution did not come to pass and enough has been written on why that was so and what constitutional structures have developed instead.[94] Political and civil liberties were slowly interwoven into the legal fabric.
This state of affairs raises an important question that is at the root of much scholarship on Israel: Is Israel a unique and singular phenomenon, something the like of which the world has never seen or is it just an immigrant society with a colonialist past, struggling to form itself as a modern nation?[95] Take the notion of treason and betrayal. At the core of the Arlosoroff and Kasztner affairs was a perception that the two were traitors to the cause. Both Arlosoroff and Kasztner negotiated with the quintessential enemies of the Jews: the Nazis. Each was accused of dishonorable conduct. Indeed, neither was formally accused of treason, but the public atmosphere during the 1930s and then the 1950s oozed incriminations of betrayal, treachery, and base character.
One may study the two affairs as reflective of the unique and special Jewish history, the urgent need to find a solution to “the Jewish problem” (as the Proclamation itself makes clear), the unbearable physical and moral burdens on the Jewish judenrat under the Nazi boot. But one may also turn to the comparative history of constitutional law and nation building. Using the second option, one finds that the formative years of a state or nation are fraught with insecurity and uncertainty about the capacity of the new governmental structures to withstand threats from within and without. Those in power may be inclined to identify opposition and disagreement with sedition and disloyalty, and those who lose power may equally see the ones who take over as traitors to the cause. The history of the Alien and Sedition Act in the late eighteenth-century United States is a good example.[96] Another example is South Korea, established three months after Israel gained statehood. In December 1948, South Korea enacted the National Security Act, designed to outlaw “anti-State” activities likely to endanger national security. The statute was extensively used to strike at political dissent.[97]
The never-ending tension between the particularist and universalist proclamations (also manifest in the Zionist/post-Zionist debate, see below) also appears in Maoz and Bilsky. Both authors explore universal issues of truth and justice. Maoz asks whether legal institutions and processes can yield a final, uncontested version of truth. Bilsky considers the effects of literature on judges as they search for tools to reach a just verdict. The materials they use, however, are extremely particularistic, dealing primarily with European Jewish history preceding and during World War II. The particular in the universal and the universal in the particular have yet to be fully developed in the study of Israeli legal history.
2. Jewishness, Zionism, and Post-Zionism
Israel prides itself on being a Jewish state. As the Proclamation makes clear, the commitment of the Jewish people to return to its land is its raison d’être. But what does Jewish mean? By now most readers probably know that Jews have not yet reached a consensus on this issue. The controversy over the values embedded in the phenomenon of Jewishness has been historically fierce and full of contention. The official narrative of the Jewish State is itself a bold attempt to replace another dominant narrative, that of Jewish orthodoxy.[98]
Rabbi Joel Teitelbaum, founder of the Satmar Hasidim community in the United States, is known to American legal scholars. Kiryas Joel (the town or village of Joel), named after the famed Rabbi, entered the canon of American constitutional law when the Supreme Court of the United States invalidated a statute that turned it into a school district.[99] The personal history of Rabbi Teitlebaum leads us back to the Kasztner affair. The rabbi was one of the leaders of the Jewish community in Hungary and one of the staunchest anti-Zionists in Eastern Europe. As the Nazis finalized their plans to deport his Hasidim to Auschwitz, Rabbi Teitelbaum and forty of his hand-picked disciples embarked on the Bergen-Belsen train organized by Kasztner and traveled to safety in Switzerland. The incident is not mentioned in the official Satmar history and it is reported that Rabbi Teitelbaum refused to assist Kasztner during the trial.[100] After a brief sojourn in Jerusalem, Rabbi Teitelbaum settled in the United States and rebuilt the Satmar Hasidic community.[101] One criterion by which to judge the renaissance of the Satmarers in New York is their political power. The followers of Rabbi Teitelbaum have enough power successfully to lobby the New York legislature to pass statutes advantageous to themselves. No small feat for the rabbi and his followers, who only fifty years ago were in the belly of the Nazi death machine.[102]
Clearly, Rabbi Teitelbaum has considered himself and has been considered by his followers as the true guardian of the Jewish flame, the one in charge of the secret of that “Jewish essence.” From this rabbi’s perspective, Jewishness was rooted in the Covenant between God and the Jewish people. As the Jewish anti-Zionist narrative tells it, exile occurred because the Jews violated God’s commands embedded in the Torah. After exile, God took pity on his people and entered a bilateral contract with the Gentiles and the Jews. The Gentiles agreed not to destroy “their Jews,” provided that the Jews do nothing to upset the status quo. The Jews agreed to honor the laws of their respective lands of residence until the arrival of the Messiah, at which time God would redeem them and return them to the land of Israel.[103]
The Proclamation, presenting the Zionist point of view, rejected this religious understanding of Jewish history. Zionists perceived Jewish exile as caused by political, not divine, force[104] and insisted that Jews had a “natural and historic” (as distinct from divine) right to reoccupy their land.[105] Jewish religion is mentioned in the Proclamation as a mere attribute of Jewish nationhood, one among three.[106] The hegemony of God’s commands is rejected by the Proclamation’s explicit promise of the free exercise of religion. In fact, a secular person will not find God in the Proclamation. The original Hebrew text of the Proclamation declares: “PLACING OUR TRUST IN THE ROCK OF ISRAEL, WE AFFIX OUR SIGNATURES TO THIS PROCLAMATION.” A study of the framers’ intent shows that the term “The Rock of Israel” was chosen as a compromise between the devout secularists who would not accept any mention of God and their religious partners. In rabbinic literature “the Rock of Israel” is a reference to God. But one may also read it as referring to the national backbone, a secular concept.[107]
Legal historians will find the tension between the religious and the secular fertile soil for research. One may focus on the fierce battle between Zionists and anti-Zionists and its ramifications in law,[108] one may inquire into efforts to modernize and integrate Jewish law into the Israeli legal system,[109] or one may explore the presence (or lack thereof) of Jewish pluralism in the early decades of the state. This, of course, is not a complete inventory of the possibilities for research in this area. Let me dwell on one issue. What has formed and informed Jewish identity in Israel and how has it changed historically? For example, when Israeli judges approach the tasks of judging, what do they bring into the opinion in addition to their doctrinal understanding of the law and their mastery of the facts? Take two judges in the Kasztner trial: Judge Halevi, who delivered the opinion of the District Court, and Justice Agranat, who delivered the opinion on appeal. Halevi was born in Germany and acquired his academic education there. Agranat was born in Louisville, Kentucky, and received his education at the University of Chicago.[110]
As Bilsky explains, Judge Halevi understood the negotiations between Kasztner and Eichmann through the prism of contract law and relied on the following literary metaphor: “But—’timeo Danaos et dona ferentis’ [beware of Greeks bearing gifts]. In accepting this gift K. sold his soul to the devil.”[111] The first clause in this sentence is a quotation from Virgil’s Aeneid, in which the fall of Troy is recounted.[112] The Greek stratagem of leaving a seemingly innocent gift—a wooden horse—before abandoning their siege of Troy proved lethal for the Trojans. By allowing the horse in they precipitated their own demise.
Bilsky brilliantly analyzes the tension between the two clauses of Halevi’s statement, one referring to the law of gifts, the other to contract law. She focuses primarily on the Faustian pact with the devil. But it is equally beneficial to reflect on the cultural associations of Israeli judges. A judge’s job is to interpret the law and apply it to the facts. His or her cultural associations inform the interpretive enterprise. For Judge Halevi, Virgil and Goethe came to mind and framed the problem. Halevi’s spontaneous reference (and it does appear to be spontaneous) is probably the result of his German gymnasium education. Can one argue that his thought process was “more German than Jewish?” And if it is Jewish, is it also Israeli? Are native Israeli cultural sensibilities different from the ones imported by the immigrants? Can one argue that at the time the quote was made, it was accessible to the majority of Israelis? Can one argue today that more than 1 percent of the legal profession would get it without Bilsky’s help?
Upon reflection, however, Virgil’s admonition not to trust the Greeks sits well with Israeli and Jewish consciousness. Halevi equated Kasztner’s situation with that of a city under siege. Surely, Hungarian Jewry of 1944 was under German siege and that alone could explain the reliance on Virgil. But Israel, too, was a state under siege. When Halevi spoke of Troy, did he have in mind Hungary or Israel? Maybe both?[113] The issue is important for the following reasons. Halevi had presided over two previous trials that could be very loosely described as related to treason. In the first, Sylvester v. Attorney General,[114] Halevi convicted an English officer and a mandatory employee of spying against the state during the Jordanian siege of Jerusalem in 1948. The conviction was overturned on appeal (the very first criminal appeal in Israel) for lack of adequate evidence. In 1953 Halevi accepted a commission as a military judge to preside over the trial of the right-wing underground movement known as “The Third Kingdom of Israel.” He convicted all of the defendants and dispensed rather harsh sentences.[115] Was Halevi so overwhelmed by the state-of-siege mentality that he was prone to see spies, traitors, and parties to pacts with the devil in every defendant?[116] What was Jewish and what was “simply” human about this thinking?
Compare this position with American-born and American-educated Justice Simon Agranat. His appellate opinion in the Kasztner trial overturned Halevi’s findings and held that Kasztner, while perhaps morally blameworthy, was not a collaborator. Halevi used Virgil and Goethe. What did Agranat use? As was his habit, Agranat dipped into American history, this time invoking Chief Justice John Marshall’s advice in the Burr treason trial. Marshall cautioned Americans about the grave danger embedded in the notion of treason and other “offenses against the state.”[117] Agranat borrowed his words to caution Israelis about the very same dangers.
We have before us two Israeli judges who wielded much influence over the development of Israeli law in its formative years. They were interpreting the same law and were expected to apply the same rules of interpretation. Both were Jewish, Zionist, men. Both were the same age and had lived through the fearful years of war and turmoil. One was rooted in German, the other in American culture. What accounts for the profound difference between the willingness of the one to divide the world into us and them (the others, who sign pacts with the devil)? The culture? If so, which one? The German, the Jewish, the “Israeli in the making”? Is there a Jewish essence that informed either one of them and was missing in the other?
Questions about the meaning of Israeli identity, of Jewish identity, and the relationship between the two require attention to the debate between Zionists and post-Zionists. In his book The Postzionism Debates, scholar Laurence Silberstein summarized the conflict:[118]
In a general sense, postzionism is a term applied to a current set of critical positions that problematize Zionist discourse, and the historical narrative and social and cultural representations that it produced. Like the term zionism, postzionism encompasses a variety of positions. The growing use of the term postzionism is indicative of an increasing sense among many Israelis that the maps of meaning provided by zionism are simply no longer adequate. To critics and detractors, postzionism presents a challenge to the basic principles and values of zionism. To its advocates, the postzionist critique is a necessary prerequisite to Israel’s emergence as a fully democratic society.
The controversy is raging along many fronts and this forum is scarcely the place to review it seriously and do it justice. I shall mention only the major divides. A school called “The new historiography” carefully combs newly opened archives and consults comparative history in an effort to assess well-known Israeli “truths.” One example is the Palestinian refugee problem. Was it caused “primarily [by] the actions of the Palestinian Arabs who, encouraged by the promises of their leaders that they would return as victors, Fled their homes and villages?”[119] A school called “critical sociology” studies the academic discourse in Israeli universities in order to identify the “mainstream and worthy of study” and the marginalized or even taboo topics unworthy of scholarly time and funding. Critical sociologists show how questions of nation building and the Zionist telos served as the focus of Israeli academic study whereas issues of the status of Palestinian-Arabs, women, or Mizrahim have been either ignored or marginalized.[120] Philosophers and scholars of Israeli culture have focused on the invention of tradition in Israeli memory and the roles of myths in the national ethos.[121]
These debates touch a sensitive nerve in the Israeli psyche. In what sometimes appears to be a repeat of the frenzied agitation of the Arlosoroff and Kasztner eras, one gets the uneasy feeling that those on the “Zionist” side consider the contenders not as legitimate adversaries in an intellectual debate but rather as traitors and apostates. Israel’s legal community has not been spared. A good example is Israel’s Supreme Court, otherwise known as the High Court of Justice. The Court has been at the forefront of applying the principles of free exercise of religion, the separation of church and state, equal protection of the laws, and due process. Perforce, such applications of principle affect certain perceptions of “Jewishness,” invalidate historical segregationist practices (separating Arabs from Jews), and subject arguments from raison d’état and national security to requirements of due process.[122]
In an article published in the daily Haaretz on April 27, 2000, titled “Is the High Court on Our Side or on the Side of Our Enemies?” right-wing commentator Israel Harel accused the Court of undermining the “Jewish survival instinct”: “The High Court of Justice . . . proves in some of its recent opinions that it no longer sees the state of Israel as the exclusive homeland of the Jewish people, as it was seen by classical Zionism and as was declared in the Proclamation. It represents a small sector that aims at a totally new definition of the state, far from Zionism and Jewish nationalism. . . .”[123] Harel is not alone. He is speaking for a growing camp that is willing to sacrifice even the Court in the name of “the nation’s treasures.” Proof that this attack was neither random nor marginal came when Chief Justice Aharon Barak responded in person to the accusations. In a speech delivered one month after the publication of the Harel attack, Chief Justice Barak warned Israelis that lack of tolerance and resort to violence have spread so that “recently judges and prosecutors are subjected to threats to their lives.”[124] In another speech, delivered in the same week, on the occasion of receiving an honorary doctorate from Tel Aviv University, Barak found it expedient to deny accusations that he was a post-Zionist: “Of late we hear that the application of the equal protection of the laws to Arabs as well as to Jews is tantamount to the end of Zionism, or that it amounts to a post-Zionist philosophy. Nothing could be more fraught with error. . . . our holding is neither anti-Zionist nor post-Zionist. It is a fully Zionist holding.”[125] The question is not whether Barak is a good Zionist. Barak is as good a Zionist as Chief Justice John Marshall was a good American. Anyone familiar with his voluminous writings and opinions would easily conclude that he passes any litmus test required by patriotism. The important point is that the Chief Justice of Israel found it imperative to testify publicly that he was a loyal Zionist. There is something chilly in a climate that calls for such a statement.
At this point, it should be emphasized that post-Zionism may well be a red herring. Most critical scholars deny that they are post-Zionists. At present it does not appear that any Israeli legal scholars volunteer to define themselves as post-Zionists. However, even the expression of a critical position, free of the label of post-Zionist, is not an easy task. One needs to develop an awareness of the hidden and distorted, to sift the historical from the ideological. One needs to overcome the patriotic reluctance to expose the unseemly side and accept the risk of being labeled as a scholar who strayed from the path at best or who has fallen to apostasy at worst (the everlasting process of promotions at Israeli universities and the, admittedly remote yet real, menace of academic retaliation add anxiety to this predicament). Last but not least, one needs to accept the fact that the fruits of historical research become informational ammunition in the hands of Israel’s adversaries. The task is doubly difficult when done in English, for a foreign audience to read and use. The Arab-Israeli conflict is raging and innocent blood is being spilled as this essay is being written. Propaganda wars are a part of the interaction between Arabs and Jews in the United States, and public relations campaigns are as important as ever. Under these circumstances, it is not easy to publish materials that one knows could be misused by parties seeking to undermine the legitimacy of Israel.
3. America as a Mirror of Israeli Legal Culture
Zionism and America are intimately connected. In 1915 Justice Louis D. Brandeis admonished American Jews that “to be Good Americans we must be better Jews and to be better Jews we must become Zionists.”[126] Justice Felix Frankfurter, we are told, advised Israelis to refrain from including a due process clause in their constitution.[127] Over the last few years, much has been published concerning “American influence over Israeli Law.”[128] Similarly, the Zionism/post-Zionism debate has been raging in the United States as much as it has in Israel. Recently, Yoram Hazoni, the son of Israeli immigrants in the United States, now settled in Israel, published a book attacking Israeli academics, particularly those at the Hebrew University, as responsible for weakening Israel’s Zionist-Spartan spirit.[129] As eminent sociologist Baruch Kimmerling pointed out in his review: “I would never have expended the least effort on this book if not for the attention it has attracted among the Jews of North America.”[130] The kulturkampf is being waged not only in the Middle East but in America as well, and many of Israel’s intellectuals are frustrated and disappointed at the willingness of American Jews to embrace a simplistic, unproblematized conception of Israel.
The United States has served as an arena where Israeli political fights may be waged. Eben Moglen reminds us that Prime Minister and Likud leader, Ariel Sharon, who served as minister of defense during the Sabra and Shatila massacre, sued Time Magazine for defamation in New York City.[131] Then Minister Sharon was undoubtedly pursuing truth and justice, but one would underestimate his sophistication if one failed to see the relationship between politics and the choice of forum. Vindicating his reputation in the eyes of his American supporters was as important as doing so before the Israeli voters.
Not surprisingly, the Kasztner trial also had more than one day in the American court of public opinion. The engine behind the effort to alert the American public to the trial was Ben Hecht. Hecht may appear to some as American as apple pie. He was known as a gifted reporter for the Chicago Daily News and as the writer of such famous Hollywood scripts as The Scoundrel, Gunga Din, and Notorious. Hecht was also a staunch disciple of nationalist Zionism and a gifted fund raiser for the the right-wing underground organization, the Irgun. In Perfidy, a book he published in 1961, Hecht promised to disclose the “truth” about the Kasztner affair. The gist of the book was clear from the dedication. It was devoted to “Samuel Tamir. A man stood up in Israel.”[132] Hecht did in English what Tamir, the feisty right-wing lawyer in the Kasztner trial, did in Hebrew: he used the trial to deliver a ringing J’accuse against Ben-Gurion and the Mapai leadership.[133] For American consumption, Hecht went so far as to tell his readers that Kasztner died on St. Patrick’s Day and that “Halevi’s verdict was an emancipation proclamation for the soul of Israel. But a soul is harder to set free than Uncle Tom. The soul of a people is no eagle soaring toward the sun, but a ground hog blinking out at it.”[134] Hecht offered his own version of the history of the Zionist movement in Palestine, including the Arlosoroff affair[135] and painted Ben-Gurion’s government as cowardly, meek, and treacherous.[136] In Hecht’s view, Kasztner was merely the reflection of other Jewish collaborationists with the Allied Forces, chief among them Ben-Gurion and the Jewish Agency. Hecht attacked the American Jewish community for its silence during the Holocaust. Perhaps the deepest wound experienced by Hecht was his failure to persuade American Jews to decry the Nazi plans of genocide in the early 1940s. Hecht saw himself as the victim of a propaganda campaign of discreditation. “[We were called ] liars, publicity seekers, race racketeers and, at best, misinformed cases of hysteria. We were, they said, the Wrong People.”[137]
Perfidy is early proof that the conflicts discussed by Maoz and Bilsky were not contained in Palestine and Israel but spilled over to the United States, tearing its Jewish community apart.[138]Perfidy forcefully raises the question of the meaning of truth, of the distinction between facts and values. Only one paragraph in the main text and a footnote of seven pages, presenting selected quotes from the opinion, mentioned that the Supreme Court of Israel held that Kasztner was not a Nazi collaborator.[139]
An Excursus on Translation
This aspect of Israeli legal history—its reflection in America—is fascinating material for study, to both Israeli and non-Israeli scholars. Nevertheless, the scholar unversed in Hebrew is bound to face a preliminary problem: the question of access in general and, more specifically, of translation. A scholar can find the means to collect materials, either in Israel or elsewhere.[140] But the non-Hebrew reader must rely on translations. Translation always separates the scholar from the text. The less loyal the translation is to the intrinsic ambiguities embedded in the original text, the thicker the wall it raises between the scholar and comprehension. Let us return, for the last time, to the Proclamation. As expected, the Proclamation is translated into English. Also as expected, the state of Israel sports an elaborate website, and both Hebrew and English versions of the Proclamation are accessible with a click of the mouse. The official English version sounds like the speech of a Bar Mitzva boy, trying to please all factions of the family. It not only flattens and deprives the text of its complexity but also conceals the layers of historical change and ideological influences so crucial for understanding. It is a splendid example of how translation can obstruct rather than enhance inquiry. One only hopes that ignorance rather than a deliberate determination propelled the translator.[141] I shall not provide a thorough examination of the translation but instead offer three examples of major discrepancies between it and the original Hebrew version. The one that leaps to mind immediately is the presence of God. As explained above, the framers deliberately chose the term “Rock of Israel” in order to avoid a reference to God while allowing religious readers to feel that God has made an appearance. The translation saves us the trouble, declaring that the signatories “trust in the Almighty.”
The second example relates to the collective Zionist voice, addressed to Israel’s Arabs. The translation reads: “WE APPEAL— in the very midst of the onslaught launched against us now for months—to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.” Whereas the original Hebrew promises Arabs “appropriate representation” the English pledges “due representation.” The latter term would appear to be more expansive and constitutionally objective, reminding one of the promise of due process in the American Fifth and Fourteenth Amendments. The Hebrew, it seems, is somewhat less generous.
The third example appears in the paragraph addressed to the Arab nations. The English reads: “WE EXTEND our hand to all neighbouring states and their peoples in an offer of peace and good neighbourliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land.” The original Hebrew does not refer to the Jewish people but rather to the “Hebrew people [presently] independent in its own land.” Is there a difference between “Hebrew people” and “Jewish people?” From the perspective of Zionist ideology there certainly is. A Hebrew person and, by extension, a Hebrew People, was a term aiming to capture the emerging identity of the “new Jewish [or better, Hebrew] person,” the one who is rooted in the land, who sheds religious bonds in favor of a secular-national identity. The terms “independent” and “in its own land” fortify and amplify this construct. The distinction between Hebrew and Jewish becomes even more significant when one considers the context in which it appears. The previous paragraph refers to “the Arab inhabitants of the state of Israel.” The following paragraph refers to “the Jewish people throughout the Diaspora.” Thus it appears that the framers considered the Hebrew people as fully equivalent to the sovereign peoples in the neighboring countries and as distinct from the “Arab inhabitants” as well as from the Jews of the Diaspora.
Conclusion
Morton Horwitz suggested that “whenever a new nation enters into a critical reexamination of its past, it will also adopt methodologies that produce a critical history of law.”[142] Horwitz is right to observe that the anti-formalist trend in Israeli legal thought, which began in the 1970s and gained momentum in the late 1980s and 1990s, is intimately related to the thriving interest in legal history among Israeli scholars. Legal thought is a crucial tenth addition to the nine ingredients already listed. It is the egg without which the nine months of pregnancy cannot begin.
Through the 1970s the way to academic recognition and prestige was treatise writing, known in the profession as Kommentar (evidently following the German lead).[143] Happy was the young lecturer invited to undertake the task, which was typically reserved to the more senior academics. The writer would collect the relevant case law in a studious and comprehensive manner, classify and categorize it in Langdellian fashion, and include a comparative chapter on the state of the positive law in Europe and the Common Law jurisdictions. Today, I would assume that most mid-level and junior Israeli faculty members would feel quite miserable if their careers depended on the publication of treatises. The shift from technical, doctrinal legal thought to “law and” scholarship is crucial for understanding the historical development of Israeli law. Much of the contemporary legal discourse is rooted in the decline in formalist thinking and the concomitant rise in various forms of interdisciplinary jurisprudence. Among these are the fundamental changes in the rhetoric of the Supreme Court, the intense interest in the meaning of judicial review and the will to deconstruct discriminatory practices. The best indication of the changing times is Menahem Mautner, recently appointed dean of the faculty of law at Tel Aviv University, whose book analyzing the shift from legal formalism to anti-formalism has become a benchmark for legal scholarship.[144] The contemporary revival of formalism in the United States may well restore its luster in Israel.[145] And yet, without the liberation from formalism, most of the work cited in this essay could not have been written.
Indeed, the field of Israeli history is so exciting that it has brought Laura Kalman to state that “if I knew Hebrew and Arabic”—she is smart enough to know translations are problematic—”I would seriously consider switching fields. For in Israel today, as opposed to the United States, political history is ‘hot.'”[146] Let me acknowledge, by way of conclusion, the debt owed by Israeli scholars to their American colleagues. Without the deep analysis of the trajectory of American legal thought and without the inspiring work done by American legal historians, Israeli scholars would still be struggling to make the desert bloom. The recognition of Israeli scholarship by the Law and History Review in this and recent issues is an important moment, signaling the end of isolationism on both sides of the ocean. Comparative legal history may come next, enabling each side to build on their strengths while benefiting from exposure to faraway lands.
Professor of Law, Boston University. I wish to thank Christopher Tomlins for suggesting that I write an essay introducing the non-Hebrew reader to Israeli legal history. Special thanks are due to Oren Bracha for expertly preparing the footnotes and for his comments. Thanks also to Ron Harris, Laura Kalman, and Assaf Likhovski for their comments on an earlier draft. Asher Maoz, a walking encyclopedia of Israeli law, generously helped with suggestions and references and deserves my eternal gratitude. Yoram Shachar, who presently is working on the definitive history of the Proclamation of the Establishment of the State of Israel, enlightened me on the history of the document in a telephone conversation. I am very grateful for his help as well. Thanks are also owed to Kathleen Much, a wonderful editor who considerably improved this manuscript. This essay was prepared while I was a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford. I am grateful for the financial support provided by the Center General Funds and by Boston University School of Law.
The title of this article is a quotation from the Proclamation of the Establishment of the State of Israel.
Notes
1 RaFi Ilan, “A Comparison of Scripts: Day and Night We Shall Sing to Hawaja Nasseradin,” Haaretz, 16 June 2000.
2 For a discussion of the philosophy of statism obtaining in Israel of the 1950s (mamlachtiut), see, e.g., Mitchell Cohen, Zion and State: Nation, Class and the Shaping of Modern Israel (New York: Basil Blackwell, 1987), 201.
3 Before the 1980s there were only a few works concerning Israeli legal history. See, e.g., Eliezer Malchi, The History of the Law of Palestine (Tel Aviv: Dinim, 1953); Daniel Friedman, “Independent Development of Israeli Law,” Israel Law Review 10 (1975): 536–62; Yoram Shachar, “Mekoroteha Shel Pkudat Ha’hok Ha’plili 1936 [The Sources of the Criminal Code Ordinance 1936],” Tel-Aviv University Law Review 7 (1979): 75–113; Elyakim Rubenstein, Shoftey Eretz [Judges of the Land] (Tel Aviv: Shocken, 1980). For a full bibliography, see: “Israeli Legal History: A General Bibliography,” in The History of Law in a Multi-Cultural Society: Israel, 1917–1967, ed. Ron Harris, Alexander Kedar, Pnina Lahav, and Assaf Likhovski (Ashgate: Dartmouth, forthcoming), and Pablo Lerner, “Legal History of Israel: Its Place in Law Studies,” in Israeli Reports to the XV International Congress of Comparative Law, ed. Alfredo Mordechai Rabello (Jerusalem: Sacher Institute, 1999).
4 For legal education in Israel, see Assaf Likhovski, “Colonialism, Nationalism and Legal Education: The Case of Mandatory Palestine,” in The History of Law in a Multi-Cultural Society; Assaf Likhovski, “The Invention of ‘Hebrew Law’ in Mandatory Palestine,” American Journal of Comparative Law 46 (1998): 339–73; Asher Grunis, “Legal Education in Israel: The Experience of Tel Aviv Law School,” Journal of Legal Education 27 (1975): 203–18; Menachem Mautner, “Legal Education in Transition: The Israeli Law School Between the University, the Bar and the Courts,” Tel-Aviv University Studies in Law 13 (1997): 271–98.
5 They are, by order of seniority, Yoram Shachar, Ron Harris, Alexander Kedar, Assaf Likhovski, Yifat Holzman-Gazit, and Nir Kedar.
6 See Asher Maoz, “Historical Adjudication: Courts of Law, Commissions of Inquiry, and ‘Historical Truth,'” Law and History Review 18 (2000): 559–606; Leora Bilsky, “Judging Evil in the Trial of Kastner,” Law and History Review 19 (2001): 117–60.
7 Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125.
8 See David Abraham, “Where Hannah Arendt Went Wrong,” Law and History Review 18 (2000): 607–12; Lawrence Douglas, “Language, Judgment, and the Holocaust,” Law and History Review 19 (2001): 177–82; David Luban, “A Man Lost in the Gray Zone,” Law and History Review 19 (2001): 161–76; Eben Moglen,”Making History: Israeli Law and Historical Reconstruction,” Law and History Review 18 (2000): 613–17.
9 Haim V. Arlosoroff was born in Ukraine but immigrated to Germany at a young age and was educated there. A socialist intellectual, he rapidly rose to a position of leadership in the Zionist movement. In 1933 he was murdered on a Tel Aviv beach, two days after he had returned from Berlin, where he negotiated an agreement with the Nazi government on behalf of German Jews. The question “Who murdered Arlosoroff” caused a turmoil in Zionist circles. Labor circles blamed right-wing propaganda, which was particularly venomous preceding the murder. The Right, crying foul, vigorously denied responsibility. The British government in Palestine brought indictments against two right-wing zealots. Both were acquitted but one was acquitted on a technicality only. The case has remained a mystery to this day and its traumatic effects are still visible.
Rudolf Israel Kasztner, a Jewish journalist in Budapest, was chair of the Jewish Relief and Rescue Committee during the Nazi occupation of Hungary. His task was to save Jews from Nazi genocide. Most Hungarian Jews were murdered in Auschwitz. During Kasztner’s negotiations with Eichmann, the Nazi official allowed a train with 1865 passengers to leave Hungary for Switzerland. A disproportionate number of Kasztner’s relatives left on the train. After the war, Kasztner was accused of intentionally withholding the “Auschwitz news” from the majority of Jews in order to guarantee the safe departure of the “Bergen-Belsen train.” Kasztner immigrated to Israel and occupied a mid-level position in the ministry of trade and industry. In 1953 he was pushed by the attorney general into launching a defamation suit against one Malkiel Gruenvald, who accused Kasztner of being a Nazi collaborator. Formally a witness, Kasztner found himself a “defendant” in a trial that touched off a tumultuous political squall in Israel of the 1950s. After the solitary judge in the trial declared that “Kasztner has sold his soul to the devil” Kasztner was assassinated by right-wing zealots. Following the assassination, the Supreme Court held that Kasztner could not be considered a Nazi collaborator.
10 On the Proclamation, see Yoram Shachar, “Yomano Shel Uri Yadin [The Diary of Uri Yadin],” Tel-Aviv University Law Review 16 (1991): 542–53; Yoram Shachar, “The History of the Proclamation” (in progress); Orit Kamir, “La-‘Megila’ Yesh Shtey Panim; Sipuran Ha’muzar shel ‘Hachrazat Ha’medina Ha’tsionit’ Ve-‘Hachrazat Ha’medina Ha’demokratit'[The Interesting Story of the ‘Zionist Declaration of Independence’ and the ‘Democratic Declaration of Independence’],” Tel-Aviv University Law Review 23 (2000): 473–538; Elyakim Rubinstein, “The Declaration of Independence as a Basic Document of the State of Israel,” Israel Studies 3.1 (1998): 195–210.
11 Lawrence M. Friedman, “Legal History: Israel and the United States: Some Remarks,” in The History of Law in a Multi-Cultural Society. Emphasis in the original.
12 All three issues: Arabs, women, and Mizrahim are rooted in identity politics. To these at least a fourth should be added, related to the status of homosexuals and lesbians in Israel. I realize that my failure to do justice to this issue leaves my discussion incomplete. The curious about scholarship on gay rights in Israel should consult Lee Walzer, Between Sodom and Eden—A Gay Journey through Today’s Changing Israel (New York: Columbia University Press, 2000); Alon Harel, “Gay Rights in Israel: A New Era?” International Journal of Discrimination and the Law 1 (1996): 262; Alon Harel, “The Rise and Fall of the Israeli Legal Revolution,” Columbia Human Rights Law Review 31 (2000): 443; Yuval Yonai and Dori Spivak, “Between Silence and Condemnation: The Construction of Gay Identity in Israeli Legal Discourse, 1948–1988,” Israeli Sociology 1 (1999 [Hebrew]): 257; Aeyal Gross, “Challenges to Compulsory Heterosexuality: Recognition and Non-Recognition of Same-Sex Couples in Israeli Law,” Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, ed. Robert Wintemute and Mads Andenas (Oxford: Hart, forthcoming).
13 For a Hebrew text of the Proclamation, see http:/www.knesset.gov.il/knesset/docs/megilat.htm. For an English text, see http://www.mfa.gov.il/mfa/go.asp?MFAH00hb0.
14 The term “ma’apilim” has a special meaning in the Zionist-Israeli ethos and cannot be reduced to “immigrants.” It denotes “climbing a particularly steep and difficult terrain,” implying that Israel is geographically located at the apex of the universe. It also implies a particular determination and discipline associated with mountain climbing. The three groups mentioned by the Proclamation, “pioneers, ma’apilim and defenders” were thus special people, members of a small and dedicated elite who made the Zionist dream possible.The other side of the phenomenon of “Ha’apala” is that, at the time, Jewish immigration to Palestine was illegal. Thus, in the Israeli ethos, “illegal immigration” was a positive value and the term “illegal” thereby lost its conventional meaning as designating negative conduct. In order to preserve this meaning, I use the term “ma’apilim” in Hebrew and avoid the more common and accessible term “immigrants.”
15 Whereby Jews would be allowed to take their capital with them in the form of German (Nazi) goods. See Shlomo Avineri, Arlosoroff (London: Peter Halban, 1989), 1–2; Maoz, “Historical Adjudication,” 561.
16 In deference to Mr. Kasztner and in order to retain the flavor of his Hungarian background, I decided to keep the European spelling of his name (with the letter Z after the S) rather than the Americanized “Kastner” as preferred by Maoz and Bilsky. The reader will also note that Kasztner had several names. Rudolf or Rezso to his friends, his German and Hungarian names, respectively, which he used in Hungary, and the name Israel, which he used upon immigration to the state of Israel. The question of “what’s in a name” is important from the perspective of identity studies. It also poses a methodological problem. An Americanized spelling may make the materials more accessible, but at the same time the sense of a foreign culture might be diminished.
17 And that are German or Hungarian legal history, respectively, as much as they are Israeli history.
18 See Assaf Likhovski, “Colonial Discourse and the Anglicization of the Law of Mandatory Palestine,” Israel Law Review 24 (1995): 291; Assaf Likhovski, “Between ‘Mandate’ and ‘State’: On the Division of the History of Israeli Law into Periods,” Journal of Israeli History 19 (1998): 5–34; Assaf Likhovski, “Law as a Site of Anglo-French Cultural Conflict in Mandatory Palestine,” in La France, L’Europe Occidental et La Palestine, 1917–1948, Melange du CRFJ, ed. Dominique Trimbur (Paris: CNRS Editions, forthcoming.) I wish to thank Assaf Likhovski for helping me think through this option.
19 On the choices made in Zionist historiography in these and other respects, see Baruch Kimmerling, “Academic History Caught in the Cross-Fire: The Case of Israeli-Jewish Historiography,” History and Memory 7 (1995): 41–65; Uri Ram, “Zionist Historiography and the Invention of Modern Jewish Nationhood: The Case of Ben Zion Dinur,” History and Memory 7 (1995): 91–124.
20 The question of perspective should also be raised in this context. Given that Israel has been a state for “only” Fifty-three years, the more “Israel” bound the scholar is, and the more she recognizes the “Zionist dividing line,” the more she risks the loss of a detached perspective. As most scholars of the twentieth century know, it is quite difficult to research and come to conclusions about issues when the principal players are still alive or when the scholar is tempted to rely on personal memory to strengthen the scholarly conclusion.
21 See the third part of the Proclamation, stating that the state of Israel “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”
22 Thus the signers refer to themselve as “we, members of the people’s council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement.” For the “collective voice” as it appears in the Proclamation, see Kamir, “La-‘Megila’ Yesh Shtey Panim,” 499–500.
23 See Ehud Sprinzak, Brother against Brother: Violence and Extremism in Israeli Politics from Altalena to the Rabin Assassination (New York: The Free Press, 1999).
24 Truth not only about who killed Arlosoroff or whether Kasztner was a collaborator but truth concerning major policy decisions of the Zionist movement, such as the supremacy of the value of national honor or the question of how much physical force to use. For the concept of Zionism’s regime of truth, see Laurence J. Silberstein, The Postzionism Debates: Knowledge and Power in Israeli Culture (New York and London: Routledge, 1999), 19–20.
25 Prime Minister Begin had not yet immigrated to Palestine during the Arlosoroff affair, but he was sufficiently affected by it to insist, more than fifty years after the facts, on a commission of inquiry, hoping that it would clear the nationalist camp from charges of assassination.
26 See Ehud Sprinzak, The Ascendance of Israel’s Radical Right (New York and Oxford: Oxford University Press, 1991), 25–30; Dan Horowitz and Moshe Lissak, Origins of the Israeli Polity: Palestine under the Mandate (Chicago and London: University of Chicago Press, 1978), 120–56; Shlomo Avineri, The Making of Modern Zionism: The Intellectual Origins of the Jewish State (New York: Basic Books, 1981); and note 33 below.
27 Shlomo Avineri writes: “Arlosoroff was one of the few people in the [Zionist] leader- ship . . . who was also a European intellectual of the first order and an original social thinker, who had to his name a number of books and many articles in several languages in such varied fields as socialist and anarchist thought, economic history, Jewish social studies, Financial theory and social analysis. . . . His biography epitomizes the burden of a whole generation of Eastern and Central European Jewish intellectuals, who were nurtured, in the vortex of World War I, on the heady concoction of Russian revolutionary thought and German fin de siècle romantic idealism, rooted in the Judaic tradition yet estranged from any normative structure of religious Judaism, tossed between Russian and German culture, immersed in both, yet alienated from each.” Avineri, Arlosoroff, 4.
28 Arlosoroff was described in some right-wing attacks “as a traitor who should be eliminated.” Avineri, Arlosoroff, 2. See also Shabtai Tevet, Retzah Arlosoroff [The Arlosoroff Murder] (Jerusalem and Tel Aviv: Shoken, 1983), 41.
29 Compare Shlomo Avineri’s account of what led to the murder of Arlosoroff (the transfer agreement with the Nazi government) with Yoram Hazony, The Jewish State: The Struggle for Israel’s Soul (New York: Basic Books, 2000). Hazony’s polemic was published to great acclaim in the United States in 2000. He refers to Arlosoroff’s murder in the context of skirmishes between Right and Left about unionization, ignores the negotiations with the Nazi government altogether, and implies that disagreements about the right to unionize were the reason for the venomous campaign against Arlosoroff. Hazony then asserts that ” . . . the accusation of the politically motivated murder was sufficient to do substantital damage to the Revisionists’ public standing. In the elections held on July 23 [about six weeks after Arlosoroff died], Labor for the first time became the largest party in the Zionist Organization. . . .” This, Hazony explains, allowed Ben-Gurion to dominate Israeli politics for the next three decades. Ibid., 221–22. Compare this version with Ben Hecht, Perfidy (New York: Julian Messner, 1962). For a more balanced view, see Sprinzak, Brother against Brother, 33–34.
30 Avineri, Arlosoroff, 2.
31 Yehiam Weitz, Haaish She’nirtsah Paamayim: Hayav, Mishpato U’moto Shel Yisrael Kastner [The Man Who Was Murdered Twice] (Jerusalem: Keter, 1995), 117–22; Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997), 141–42. For a poignant theory of law as traumatic events that tend to repeat themselves, see Shoshana Felman, “Forms of Judicial Blindness, Or the Evidence of What Cannot Be Seen,” Critical Inquiry 4 (1997): 738.
32 Weitz, Haaish She’nirtsah Paamayim, 274. One may see the assassination of Prime Minister Yizhak Rabin on Nov. 4, 1992, as a repetition of the same trauma (the sense that the state has been hijacked, is skidding dangerously, and that elimination of one man will “cure” the political situation). See Sprinzak, Brother against Brother, 244–85.
33 See, for example, Ron Harris, “Legitimizing the Imprisonment of Poor Debtors: Lawyers, Legislators, Judges,” in The History of Law in a Multi-Cultural Society; Uri Ram, “The Promised Land of Business Opportunities: Liberal Post-Zionism in the Global Age,” in The New Israel: Peacemaking and Liberalization, ed. Gershon Shafir and Yoav Peled (Boulder and Oxford: Westview Press, 2000), 217–40; Likhovski, “Between ‘Mandate’ and ‘State.'” For a critique of the thesis that the ideology of the historically dominant Zionist labor movement was genuinely socialist, see Zeev Sternell, The Founding Myths of Israel: Nationalism, Socialism, and the Making of the Jewish State (Princeton: Princeton University Press, 1998).
34 See, in general, Lahav, Judgment in Jerusalem, 79–120. Ben-Gurion’s iron rule in the 1950s was that no coalition government would include either Herut (the right-wing party formed after the disbanding of the Irgun) or Israel’s Communist Party (the slogan was “without Herut or Maki”). The other side of this coin was persecution of members of these two groups in an effort to delegitimize them in the eyes of the public. Israel’s Supreme Court took a leading role in curtailing the government’s powers to achieve its aims.
In Kol Ha’am v. Minister of the Interior the Court struck down an administrative order suspending the publication of the Communist party newspapers, holding that the right to freedom of expression is an integral part of Israel’s living constitution. See ibid., 107–12. In Cr.A. 49/58 Heruti v. Attorney General, 12 P.D. 1541 (1958), the Court limited the powers of emergency legislation to curb freedom of association and acquitted a right-wing activist of the charge of membership in a terrorist organization. See ibid., 280, note 18. For a discussion of Israeli liberalism, see Yaron Ezrahi, Rubber Bullets: Power and Conscience in Modern Israel (New York: Farrar, 1997). See also Ilan Peleg, “Israel as a Liberal Democracy: Civil Rights in the Jewish State,” in Review Essays in Israel Studies, ed. Laura Zittrain Eisenberg and Neil Caplan (Albany: State University of New York, 2000), 63–80; and Asher Maoz, “Defending Civil Liberties without a Constitution—The Israeli Experience,” Melbourne University Law Review 16 (1988): 815.
35 See Menachem Mautner, Yeridat Ha’formalizm Ve’aliyat Ha’arakhim Ba’mishpat Ha’yisraeli [The Demise of Formalism and the Rise of Values in Israeli Law] (Tel Aviv: Magele Daat, 1993).
36 For a discussion of the judicial appointment process in Israel, see Shimon Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Boston: M. Nijhoff Publishers, 1994).
37 It is also known that Justice S. J. Cheshin was appointed to the bench in 1948 because of, among other things, his centrist orientation. Lahav, Judgment in Jerusalem, 81. It is widely thought that Bechor Shetreet, the only Sephardi minister in the first cabinet, held hostage the permanent appointment of Justice Moshe Silberg to the Supreme Court until the government agreed to promote the Mizrahi Judge Yaacov Azoulai to the presidency of the district court of Haifa. Ibid., 82, n. 7. For a discussion of the judicial appointments of the first three decades, see Rubenstein, Shoftey Eretz.
38 The original Hebrew for “the Jewish community” is “Yishuv Ivri.” “Yishuv,” literally “settlement,” is the term used by Israelis to designate the pre-independence Jewish community in Palestine. Traditionally the Yishuv was described as a “quasi state which in many spheres of political and social activity operated in a statelike manner.” See Horowitz and Lissak, Origins of the Israeli Polity, 2. For a critique of Horowitz and Lissak’s account of the history of the Yishuv, see Gershon Shafir, Land, Labor, and the Origins of the Israeli-Palestinian Conflict, 1882–1914 (Cambridge and New York: Cambridge University Press, 1989), 1–7.
39 In a speech at Auschwitz-Birkenau, Israel’s President Ezer Weitzman declared: “Israel was not established as a result of the Holocaust. The right of the Jewish people to independence in Eretz Israel is as strong as the right of any nation in the world. It would have been fulfilled even without the tragedy of the millions who were sacrificed at the altar of Nazi racial theories.” Haaretz, 3 May 2000. For an analysis, see Tom Segev, One Palestine Complete (New York: Metropolitan Books, 2000), 491.
40 Nor is it clear that most survivors chose to come to Palestine, as the Proclamation and Zionist ideology implied.
41 See note 38 above regarding the term “Yishuv.”
42 See Hava Eshkoli, Elem: Mapai Le’nochah Ha’shoa, 1939–1942 [Silence: Mapai in Front of the Holocaust, 1939–1942] (Jerusalem: Yad Ben Zvi, 1994); Tuvia Friling, Hetz Ba’arafel: David Ben-Gurion, Hanhagat Ha’yishuv Ve’nisyonot Hatsala Ba’shoa [Arrow in the Dark: David Ben-Gurion, the Yishuv Leadership and Rescue Attempts during the Holocaust] (Sede-Boker: The Ben-Gurion Research Center, 1998); Dalia Ofer, Escaping the Holocaust: Illegal Immigration to the Land of Israel, 1939–1944 (Oxford and New York: Oxford University Press, 1990); Dina Porat, The Blue and the Yellow Stars of David: The Jewish Leadership in Palestine and the Holocaust, 1939–1945 (Cambridge: Harvard University Press, 1990); Shabtai Teveth, Ben-Gurion and the Holocaust (New York: Harcourt Brace, 1996); Yehiam Weitz, Mudaut Ve’hoser Onim: Mapai Le’nochah Ha’shoa, 1942–1944 [Awareness and Helplessness: Mapai in Front of the Holocaust, 1942–1944] (Jerusalem: Yad Ben Zvi, 1994); Idith Zertal, From Catastrophe to Power: Holocaust Survivors and the Emergence of Israel (Berkeley: University of California Press, 1998).
43 Ofer, Escaping the Holocaust, 23–27.
44 One interesting aspect of this history is how Israel’s government tried to achieve reconciliation and put matters to rest in the Eichmann trial. See Leora Bilsky, “In a Different Voice: Social Criticism in the Shadow of Israel’s Holocaust Trials,” Theoretical Inquiries in Law 1 (2000): 509–47; Yechiam Weitz, “The Holocaust on Trial: The Impact of the Kasztner and Eichmann Trials on Israeli Society,” Israel Studies 1.2 (1996): 1–26.
45 Scott v. Sanford, 19 How. (60 U.S.) 393 (1856); Brown v. Board of Education, 347 U.S. 483 (1954). David Luban comments that Bilsky is mistaken to state that the Kasztner Trial has been forgotten. Luban, “A Man Lost in the Gray Zone.”
46 Hannah Arendt, Eichmann in Jerusalem : A Report on the Banality of Evil (New York: Viking Press, 1963), 42.
47 Shalom Rosenfeld, Tik Plili 124: Mishpat Gruenvald-Kastner [Criminal Case 124: The Gruenvald-Kasztner Trial] (Tel Aviv: Karni, 1955); Hecht, Perfidy. Rosenfeld does not refer to the appeal. Hecht mentions it in passing and gives it a long footnote. For other works on Kasztner before the 1990s, see Emanuel Pratt, Ha’Mishpat Ha’gadol: Parashat Kastner [The Great Trial: The Kasztner Affair] (Tel Aviv: Or, 1955); Dov Dinur, Kastner: Giluyim Hadashim al Ha’ish U’poalo [Kastner Leader or Villain] (Haifa: Gestelist, 1987). In the 1980s a play on Kasztner renewed the Israeli interest in his moral dilemma, see Moti Lerner, Kastner (Tel Aviv: Or-Am, 1988).
48 The Kaztner trial was briefly mentioned in criminal law classes as an example for the distinction between action and omission and the special standard of proof developed by Justice Agranat for libel cases in which the defendant accuses the plaintiff of severe criminal deeds, but that was all. For a discussion, see Lahav, Judgment in Jerusalem, 129–30, 138. Similarly, the Eichmann trial was periodically mentioned but only for technical, doctrinal reasons. Until the late 1990s the substantive legal issues concerning the Holocaust were not addressed.
49 In the early 1960s a series of cases sustained the outlawing of the radical Palestinian group El-Ard. In justification the Court relied on the failure of the Weimar Republic to outlaw the Nazi party. The implication was that had the Weimar courts outlawed Hitler’s party, the catastrophic results of the rise of Fascism would have been avoided. See Lahav, Judgment in Jerusalem, 192.
50 See Kimmerling, “Academic History Caught in the Cross-Fire,” 48. The question of when Palestinian peoplehood has been crystallized is intimately connected to this inquiry. Compare Baruch Kimmerling and Joel S. Migdal, Palestinians: The Making of a People (New York: Free Press, 1993) with Rashid Khalidi, Palestinian Identity: The Construction of Modern National Consciousness (New York: Columbia University Press, 1997).
51 It continues: “The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.” See also: Kamir, “La-‘Megila’ Yesh Shtey Panim,” 498.
52 The original Hebrew was rendered in the English translation as “loving peace but knows how to defend itself.” In the original, however, there is no “but.” Instead, the word “and” connects the qualities of loving peace and self defense.
53 The Proclamation declares that “THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947” and mentions the “onslaught launched against us.”
54 Avineri, Arlosoroff, 70. Arlosoroff continues: “Thus [the Arab extremists] were given an opportunity to inflate artifically a religious conflict, to manipulate the fanaticism and ignorance of the Arab masses and to mobilize for political purposes the dark forces of religious animosity.” Ibid.
55 I should also add that the history of the Holy Sites in Jerusalem is delicious material, including parliamentary debates, legislation, litigation, and criminal prosecutions. See, e.g, H.C. 223/67 Ben-Dov v. Minister of Religions, 22(1) P.D. 440 (1968); H.C. 222/68 National Circles v. Minister of Police, 24(2) P.D. 141 (1970); Cr.C. 173/69 State of Israel v. Denis Michael Ruhan, 68 P.M. 345 (1970); H.C. 292/83 The Temple Mount Faithful v. The Jerusalem Police Commander, 38(2) P.D. 449 (1984); H.C. 411/89 The Temple Mount Faithful v. The Jerusalem Police Commander, 43(2) P.D. 17 (1989). See also Nadav Shragai, Har Ha’meriva [The Temple Mount Conflict] (Jerusalem: Keter, 1995) and references there, and Segev, One Palestine Complete, 295.
56 See Avineri, Arlosoroff, 2; Shabtai Teveth, Retsah Arlozorov, 205–6.
57 Asher Maoz, “Historical Adjudication,” 576.
58 For a critical discussion of Israeli theories of “Arab criminality,” see Alina Koren, “Criminalization of a Political Conflict: Crime within the Israeli Arab Population in the Fifties,” Plilim 8 (1999): 157–91.
59 However, Kasztner was the editor of OyKelet, an Israeli newspaper in the Hungarian language. It would be interesting to study the newspaper and its perception of Arabs and the Arab-Israeli conflict.
60 Haaretz, 7 November 1956. See also Mordechai Bar-On, The Gates of Gaza: Israel’s Road to Suez and Back, 1955–1957 (New York: Saint Martin’s, 1994), 269. For a discussion of the significance of the Holocaust in Israeli consciousness in the context of the Suez war, see Tom Segev, The Seventh Million: The Israelis and the Holocaust (New York: Hill and Wang, 1993), 296–98.
61 Kasztner was assassinated on March 4, 1957. Weitz, Haaish She’nirtsah Paamayim, 323.
62 Confirmation of the relationship between the anger at Ben-Gurion and Kasztner’s murder may be found in Hecht, Perfidy, 205. See below, 428–29.
63 See also below, 431.
64 See, for example, Oren Bracha, “Unfortunate or Perilous: The Infiltrators, the Law and the Supreme Court, 1948–1954,” Tel-Aviv University Law Review 21 (1998): 333–85. Bracha brilliantly analyzes the “problem of Arab infiltration” into Israeli territory in the 1950s. He shows that many of the “infiltrators” were refugees trying to return to their homes and demonstrates how the legal system developed classifications that depicted them as aliens illegally crossing the border. See also Menachem Hofnung, Democracy, Law and National Security in Israel (Brookfield: Dartmouth, 1996); Yifat Holzman-Gazit, “Expropriation Law in the 1950s in Light of Zionist Ideology of Immigrant Absorption and Private Property,” in Land Law in Israel: Between Private and Public, ed. Hanoch Dagan (Tel Aviv: Ramot Publishing, 1999), 223–52; Yifat Holzman-Gazit, “Immigration Policies, Housing Supply and Supreme Court Jurisprudence of Land Expropriation in Early Statehood,” in The History of Law in a Multi-Cultural Society; Alexander Kedar, “Zman Shel Rov Zman Shel Miut: Karka, Leom Ve’diney Ha’hityashnut Ha’roheshet Be’yisrael [Majority Time, Minority Time: Land, Nation, and the Law of Adverse Possession in Israel],” Tel-Aviv University Law Review 21 (1998): 665–746; Alexander Kedar, “The Jewish State and the Arab Possessor, 1948–1967,” in The History of Law in a Multi-Cultural Society; Alexander Kedar and Oren Yiftachel, “Landed Power: The Making of the Israeli Land Regime,” Theory and Criticism: An Israeli Forum 16 (2000): 67–100; Ronen Shamir, “Suspended in Space: Bedouins under the Law of Israel,” Law and Society Review 30 (1996): 231–57; David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York: SUNY Press, forthcoming); Nadim N. Rouhana, Palestinian Citizens in an Ethnic Jewish State: Identities in Conflict (New Haven: Yale University Press, 1997).
65 Lahav, Judgment in Jerusalem, xiii.
66 See the full text of this paragraph below, 417–18.
67 Deborah Bernstein, The Struggle For Equality: Urban Women Workers in Prestate Israeli Society (New York: Praeger, 1987).
68 Pnina Lahav, “Conceptions of Sex Equality in the Debate over the Women’s Rights Law,” Zmanim: Journal of History 46–47 (1993): 149–59.
69 E.g., Ada Maimon (sister of Rabbi Yehuda Leib Fishman Maimon, the noted religious leader who was a signatory to the Proclamation), Bebba Iddelson, Hasia Drori, Feiga Ilanit. On the Right one would include Esther Raziel Naor and Shoshana Raziel Naor.
70 More colloquially, people were fond of saying that “Golda was the only one with balls in the cabinet.” Golda Meir understood well the aura of male superiority emanating from this statement but failed to unlock its intrinsic cultural message. Oriana Fallaci, Interview with History (Boston: Houghton Mifflin, 1976), 112.
71 Again, Golda Meir did see, even complained, that women were barely represented in the Knesset: “There aren’t many women in our parliament, something that bothers me a lot. And these few women, let me assure you, are by no means less capable than men. In fact, the’re often much more capable. So it’s ridiculous that toward women there still exist so many reservations, so many injustices, that when a list is being drawn up for the elections, for example, only men’s names get chosen. But is it all the fault of men? Wouldn’t it be, at least partly, the fault of women too?” Fallaci, Interview with History, 113. Indeed, it was the fault of women. At the time of this interview Meir had tremendous power in her party and could have brought about the inclusion of more women. Instead, she conducted a vendetta against civil rights activist Shulamit Aloni, excluding her from the party list. In the 1974 elections Aloni ran on a civil rights platform (Ratz). Two feminists (herself and Marcia Friedman) were elected as members of the Knesset on this ticket.
72 Fallaci, Interview with History, 112.
73 The reader should know that Bilsky is one of Israel’s leading feminists. See, e.g, Leora Bilsky, “Giving Voice to Women: An Israeli Case Study,” Israel Studies 3.2 (1998): 47–79.
74 Maoz, “Historical Adjudication,” 562: “The accused were acquitted because Mrs. Arlosoroff’s testimony was not corroborated, as required by the prevailing Palestinian law . . . the Appeal Court even went so far as to state that had the case been heard in England . . . the conviction would rightly have been upheld.”
75 See Tevet, Retsah Arlozorov, 238–41; Maoz, “Historical Adjudication,” 562, n. 8. Apropos of the claim that it was the wife who murdered the husband, see the discussion of attempts to solve a murder mystery by implicating the beautiful wife in Orit Kamir, “Judgment by Film: Socio-Legal Functions of Rashomon,” Yale Journal of Law and the Humanities 12 (2000): 39–88.
76 Weitz, Haaish She’nirtsah Paamayim, 271: “classmates followed [Suzy] calling her ‘daughter of a murderer, daughter of a Nazi’ . . . The situation at home was insufferable—the front of their building was covered with graffiti, the most gentle of which was ‘Kasztner is a murderer.’ In the store they sometimes refused to sell her groceries.” For Hanzi Brand, see ibid., 326.
77 In 1994 Giora Szenes, Hanna’s brother, petitioned the High Court of Justice to have the Israel Broadcasting Authority remove a scene from a fictionalized television play about Kasztner, where Hanna Szenes was accused of having revealed information to the Hungarian police about the location of her two accomplices. The case triggered a judicial deliberation about the sanctity of “national legends.” The Court refused to intervene. See Maoz, “Historical Adjudication,” 626, n. 26.
78 It is, however, true that women soldiers who served in the paratroopers forces, as secretaries or in other service capacity, sported a red beret as well. How much prestige was associated with the female red beret is debatable.
79 Quoted in Benjamin Harshav, Language in Time of Revolution (Stanford: Stanford University Press, 1993), 136. Thus it appears that the gendered division of labor in Israel’s military was contemplated as early as 1905.
80 See Frances Raday, ed., Maamad Ha’ishah Ba’hevrah Uva’mishpat [Women’s Status in Law and In Society] (Jerusalem and Tel Aviv: Shoken, 1995); Hanna Herzog, Gendering Politics: Women in Israel (Ann Arbor: University of Michigan Press, 1999); Leora Bilsky, “Giving Voice to Women: An Israeli Case Study,” Israel Studies 3 (1998): 47; Ruth Halperin Kaddari, “Two Who Are One, One Who Is Two: Maternal-Fetal Relationship and Substance Abuse during Pregnancy,” Plilim 6 (1997): 261–338; Ruth Halperin Kaddari, “‘Tav Lemeitav Tan Du Milmeitav Armalu’: Women’s Perpetual Marital Preference and Their Construction as Other in Jewish Law,” in Jewish Legal Writings by Women, vol. 2, ed. Micah D. Halpern and Chana Safrai (forthcoming); Daphna Barak-Erez, “Al Simetriya Ve’netraliyut Be’ikvot Parashat Nachmani [Symmetry and Neutrality: Reflections on the Nachmani Case],” Tel Aviv University Law Review 20 (1996): 197–219; Daphna Barak-Erez, “Ha’isha Ha’svira [The Reasonable Woman],” Plilim 6 (1997): 115–35; Orit Kamir, “‘Ve’im Baal-Kana’: Sipurey ‘Beila’ Ve’hibalut Be’hok Ha’onshin [The Rhetoric of ‘Husbanding’ in Israel’s Penal Code and its Cultural Significance],” Plilim 7 (1998): 121–60; Orit Kamir, “Dignity, Respect and Equality in Sexual Harassment Law: Israel’s New Legislation,” (New Haven: Yale University Press, forthcoming); Shulamit Almog, “Al Nashim,Tsava Ve’shivyon [On Women, Army and Equality],” Law and Government 3 (1996): 631–47; Ruth Ben-Israel, Equal Opportunities and Employment Discrimination (Tel Aviv: Open University, 1998).
81 Gabriel Lipshitz, Country on the Move: Migration to and within Israel, 1948–1995 (Dordrecht, Boston, and London: Kluwer, 1998), 43. A new term was applied to these immigrants, “Olim” (those who ascend). The term, however, does not connote the heroic conduct associated with the ma’apilim. See above, note 14.
82 Whereas the term “members of the Eastern communities” treats Mizrahim as members of different sects (in Hebrew “Eda” is both community and sect), in contradistinction to Ashkenazim who are thereby implied to represent the baseline (sects or communities being the exception), the term Mizrahim equalizes this population with the Ashkenazim, at least terminologically.
83 My friend Laura Kalman wanted to know why it was necessary to add that Mr. Shouchman was good and honest. I do it in order to avoid a Manichaean approach to the Ashkenazi/Sephardie divide. While Mr. Shouchman was prejudiced, he was not a bad man. Shopkeepers have ample opportunity to deceive their clients. He never did. He was also generous with credit and a friendly fellow.
84 They were Saadia Kobashi, of Yemeni descent, and Bechor Shetreet, scion of an old Sephardic family rooted in Palestine. Shetreet served as Minister of Police and Minorities in the provisional Israeli government and as Minister of Police in the first Israeli cabinet. He fought in vain to include a sephardic judge in the first group appointed to the Supreme Court.
85 See, e.g., Avi Pikar, “The Beginning of Selective Immigration in the 1950s,” Iyunim Bi’Tkumat Israel 9 (2000): 338–94.
86 See above, note 33.
87 Harris, “Legitimizing the Imprisonment of Poor Debtors.”
88 Maoz, “Historical Adjudication,” 564.
89 Justice Haim Cohn, in a tribute to Justice Bechor, praises at length his professionalism, modesty, and aristocratic demeanor. Cohn does say that Bechor made significant contributions to the Court’s jurisprudence but remains enigmatic about any particular Bechor opinions. Haim Cohn, “About David Bechor,” Hapraklit 33 (1981): 306–7.
90 The reader may or may not wish to draw a comparison with the Mizrahi Jews depicted as “wild animals” in the anecdote above or with the theory of the “noble savage.”
91 See Lahav, Judgment in Jerusalem, 124–25.
92 The stereotype of “Romani Ganav”—A Romanian is a thief—was quite prevalent in the 1950s and has not totally faded.
93 See Kamir, “La-‘Megila’ Yesh Shtey Panim,” 476–77.
94 Ruth Gavison, “The Controversy over Israel’s Bill of Rights,” Israel Yearbook on Human Rights 15 (1985): 113–54; Amnon Rubinstein, Ha’mishpat Ha’constitutsyoni Shel Medinat Yisrael [The Constitutional Law of the State of Israel] (Jerusalem and Tel Aviv: Shoken), 382–408 and references there.
95 See Mark Tushnet, “Book Review: The Universal and the Particular in Constitutional Law: An Israeli Case Study,” Columbia Law Review 100 (2000): 1327–46.
96 See Zecharia Chafee Jr., Free Speech in the United Sates (Cambridge: Harvard University Press, 1948); Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Belknap Press, 1964); David M. Rabban, “The Ahistorical Historian: Review Essay: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37 (1985): 795–856. See also Richard E. Ellis, “The Impeachment of Samuel Chase,” in American Political Trials, ed. Michal R. Belknap (Westport and London: Greenwood, 1994), 57–76. See also the Aaron Burr trial: Ex Parte Bollman, 8 U.S. 75 (1807); Francis F. Beirne, Shout Treason: The Trial of Aaron Burr (New York: Hastings House, 1959).
97 See Kyu Ho Youm, Press Law in South Korea (Ames: Iowa State University Press, 1996), 153 and references there.
98 It is quite likely that from this perspective the Zionists were the victors. Even the ultra orthodox now accept the state as well as its legitimacy as a fait accompli. Thus, according to the thesis of Rabbi Yoel Teitelbaum, the influential Satmar leader, the state of Israel is “an obstacle to Messianic redemption” but its disappearance before redemption will occur “only via a superior force emanating from His Blessed Name and not at the hand of the Nations.” Israel Rubin, Satmar: Two Generations of an Urban Island (New York: Peter Lang, 1997), 205.
99 The statute was invalidated as being in violation of the establishment clause. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). See also Martha Minow, “The Constitution and the Subgroup Question,” Indiana Law Journal 71 (1995): 1–25; Hugh Baxter, “Managing Legal Change: The Transformation of the Establishment Clause Law,” UCLA Law Review 46 (1998): 343–458.
100 See Weitz, Haaish She’nirtsah Paamayim, 34, 211–12; Dinur, Kastner, 37, 154.
101 One should reflect on whether, given the revival of the Satmar community, the rescue of the rabbi by Kasztner was a reasonable step.
102 The almost miraculous restoration of the Satmar community may call for a deeper reflection on Hanna Arendt’s denunciation of the methods of saving the few. Arendt rhetorically condemns Kasztner’s choice of “those who worked all their lives for the [community].” Arendt, Eichmann in Jerusalem, 118. Rabbi Teitelbaum was saved precisely because he fit this category. It stands to reason that the task of community rebuilding in the United States would have been much harder had the rabbi been sent to Auschwitz and that this was the reason why he accepted the offer to embark the Bergen-Belsen train. The official history of Satmar does not mention either Kasztner or the Bergen-Belsen train: “Between May 1944 and late 1945 Jewish life in Hungary . . . was totally extinct. Of the Satmarer Hasidim, a great many were dead. . . . The Rov, however, was saved, ironically through the efforts of Zionist leaders who were able to bribe a few key German officials and to transport a number of Jews to Switzerland. The Rov was in this transport.” Rubin, Satmar, 47.
103 In 1959 (two years before the Eichmann trial) Rabbi Teitelbaum offered the thesis that the Holocaust was brought about due to the Zionist violation of this covenant. Yoel Tietelbaum, Va’yoel Moshe (New York: Jerusalem, 1959), 5. See also Yoel Teitelbaum, Sefer Gehaley Esh [Book of the Fire Embers], (New York, 1984) where the Rabbi states that Zionist leaders failed to take advantage of the Nazi offer to spare Jewish lives for money and that a small part of the Zionist policy was uncovered in the Kasztner trial. Ibid., 87. On the tension between the Zionist and Ultra Orthodox positions toward the Jewish state, see Alon Harel, “Liberalism versus Jewish Nationalism: A Case for the Separation of Zionism and State,” Democratic Culture 3 (2000): 89.
104 According to the Proclamation, the Jews were “forcibly exiled from their land. . . .”
105 The Proclamation states: “Accordingly we, . . . by virtue of our natural and historic right and on the strength of the resolution of the United-Nations general assembly. . . .”
106 “ERETZ-ISRAEL was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped.”
107 See Kamir, “La-‘Megila’ Yesh Shtey Panim,” 490. The official English translation spares the reader this historic ambiguity and states “PLACING OUR TRUST IN THE ALMIGHTY.”
108 Thus, for example, in the Shalit case Justice Moshe Landau declared that with the ultra-Orthodox, the “denigrators from within” who “do not recognize the state ‘de jure’ . . . we have no discourse on matters of state and religion.” H.C. 58/68 Shalit v. the Minister of the Interior and Population Registrar, 23(1) P.D. 477, 518 (1969). On the exemption of Yeshiva students from military service, see Rubinstein, Ha’mishpat Ha’constitutsyoni, 302–5 and references there. The most recent of a series of Supreme Court decisions regarding this issue is H.C. Amnon Rubinstein v. Minister of Defense, 52(5) P.D. 481 (1998).
109 Ron Harris, “Hizdamnuyot Historiot Ve’hamatzot She’beheisech Da’at: Al Shiluvo Shel Ha’mishpat Ha’ivri Ba’mishpat Ha’yisraeli Be’et Hakamat Ha’medina [Historical Opportunities and Absent-Minded Omissions: On the Incorporation of Hebrew Law into Early Israeli Law],” in State and Religion in Israel, 1948– 1967, ed. Mordechai Bar-On (forthcoming); Likhovski, “The Invention of ‘Hebrew Law'”; Ronen Shamir, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 2000); Ronen Shamir, “The Hebrew Law of Peace: The Demise of Law-as-Culture in Early Mandate Palestine,” in The History of Law in a Multi-Cultural Society.
110 For Halevi’s background and education, see Weitz, Haaish She’nirtsah Paamayim, 108. For Agranat’s, see Lahav, Judgment in Jerusalem, 3–39. For the German influences on Israel’s Supreme Court, see Fania Oz-Salzberger and Eli Salzberger, “The Secret German Sources of the Israeli Supreme Court,” Israel Studies 3.2 (1998): 159–92.
111 Bilsky “Judging Evil,” 124.
112 Ibid., 145; Virgil, The Aeneid, trans. Rolfe Humphries (New York: Macmillan, 1987), 42.
113 Consider in this context Agranat’s analysis in the Kasztner appeal of the use of history in trials, in which he admonishes the judge to “put himself in the shoes” of those he judges. Agranat clearly did not think that Halevi met this injunction. Cr.A. 232/55 Attorney General v. Gruenvald, 12(3) P.D. 2017, 2058 (1958). For a provocative defense of Halevi and a critique of Agranat, see Michal Shaked, “History in the Courts and the Courts in History—The Kasztner Opinions and the Narratives of History,” Alpayim 20 (2000): 36.
114 Overturned on appeal in Cr.A. 1/48, Sylvester v. Attorney General, 1 P.D. 5 (1948). See also Dafna Barak-Erez, ed., Mishpatim Rishonim: Sihot Be’ikvot Piske-Din Shel Bet-Ha’mishpat Ha-Elyon Ba’shanah Ha’rishonah Le’hivasdo [First Judgments: Reflections upon Decisions of the Israeli Supreme Court During the First Year of Israel’s Independence], (Tel Aviv: Hakibbutz Hameuchad, 1999), 9–33.
115 See Weitz, Haaish She’nirtsah Paamayim, 109–10. In this trial the paths of the three protagonists of the Kasztner trial first crossed. Halevi presided as head of the panel, Haim Cohn was the prosecuter, and Shmuel Tamir defended the accused. See ibid.; Maoz, “Historical Adjudication,” 585.
116 The metaphor of pacts with the devil, is, however, quite endemic to the Israeli psyche. See, e.g., Avineri, Arlosoroff, 1, discussing the reaction of right-wing circles to Arlosoroff’s transfer agreement: “This initiative . . . was virulently attacked by the . . . right wing . . . who saw it as an ignoble pact with the devil.”
117 Agranat said: “My main aim here is to emphasize our duty . . . to do everything possible to detach ourselves from the climate of ‘prejudice’ [sic] that grew around the issues before us, lest we become its victims. A hundred and fifty years ago Chief Justice John Marshall admonished in a famous treason trial, and the United States Supreme Court repeated his words as recently as 1944, that—’as there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made, a deliberate and temperate inquiry.’ This admonition fits, in my opinion, the general approach that we should take concerning our subject matter.” Attorney General v. Gruenvald, 2060.
118 Silberstein, The Postzionism Debates, 2.
119 Ibid., 100.
120 See, for example, Kimmerling, “Academic History Caught in the Cross-Fire”; Ram, “Zionist Historiography and the Invention of Modern Jewish Nationhood.”
121 See, for example, David Ohana, ha-Yisreelim ha-aharonim [The Last Israelis] (Tel Aviv: ha-Kibuts ha-meuhad, 1998); David Ohana and Robert Wistrich, eds., The Shaping of Israeli Identity: Myth, Memory, and Trauma (London and Portland: Or, 1995); Yael Zerubavel, Recovered Roots: Collective Memory and the Making of Israeli National Tradition (Chicago: University of Chicago Press, 1995).
122 Some of the recent significant cases are: H.C. 6698/95 Qaadan v. Minhal Mekarkai Israel, 54(1) P.D. 258 (2000) (holding that Israeli Arabs cannot be discriminated against in state allocation of land); Cr.F.H. 7048/97 Plonim v. Minister of Defense, 53(1) 721 (2000) (upholding the right of due process of Lebanese held as hostages by the IDF); H.C. 5100/94, 4045/95 The Public Committee against Torture in Israel v. The Government of Israel, Takdin Elion 99(3) 458; H.C. 3358/95 (outlawing the practice of torture by the security services); Anat Hofman v. The General Manager of the Prime-Minister Office, Takdin Elion 2000(1) 825 (upholding right of women to pray collectively at the Western Wall). On Qaadan, see Alexander Kedar, “A First Step in a Difficult and Sensitive Road: Preliminary Observations on Qaadan v. Katzir,” Israel Studies Bulletin 16 (2000): 3.
123 Israel Harel, “Is Bagatz on our side or on our enemy’s?” Haaretz, 27 April 2000 (Internet edition). See also interview with former Chief Justice Moshe Landau, Haaretz Magazine, 6 October 2000, p. 6: the Qaadan case, “opens the gate to postzionist views and to hostile groups that might abuse it.”
124 Chief Justice Aharon Barak, On Tolerance, speech delivered on 24 May 2000 (on file with the author).
125 Chief Justice Aharon Barak, The State of Israel as a Jewish and Democratic State, speech at Tel Aviv University, 21 May 2000 (on file with the author).
126 Philippa Strum, Brandeis: Beyond Progressivism (Lawrence: University Press of Kansas, 1993), 115.
127 Benjamin Akzin, “Felix Frankfurter—In Memoriam,” Israel Law Review 2 (1967): 307–8.
128 See Lahav, Judgment in Jerusalem; Aeyal M. Gross, “The Politics of Right in Israeli Constitutional Law,” Israel Studies 3.2 (1998): 80–118.
129 Yoram Hazony, The Jewish State: The Struggle for Israel’s Soul (New York: Basic Books, 2000). The book is advertised as “A New Republic Book,” meaning that it is backed by the powerful magazine.
130 Baruch Kimmerling, “Book Review,” Haaretz, 9 August 2000 (international edition); See also Miron Benvenisti, “Why Do We Argue with Hazony?” making similar points, Haaretz, 21 September 2000.
131 Moglen, “Making History,” 615–16. Sharon v. Time Inc., 559 F.Supp. 538 (S.D.N.Y. 1984).
132 Notice the play on the meaning of the name Tamir (née Katznelson), which, according to Hecht, in Hebrew means “tall and straight.” Most Hebrew speakers would recognize “tamir” as merely “tall.”
133 If one assumes that Hecht could not read Hebrew, then it is quite likely that much of the materials in the book were supplied to him by Tamir and his assistants. Again, the co- operation between Israelis and Americans for the purpose of managing public opinion in both countries regarding the desirable policies for the state of Israel is clear.
134 Hecht, Perfidy, 207, 183. The clever references to the Emancipation Proclamation and Uncle Tom were meant to appeal to the American Jewish audience of the early 1960s, mostly symphathetic to the civil rights movement.
135 Hecht, Perfidy, 256, n. 9: “In 1933 . . . Arlosorov [sic] was assassinated on the beach of Tel Aviv. Months later two Arabs confessed that they were the actual killers. However, a few hours after the assassination David Ben-Gurion . . . declared that he was convinced that Arlosorov was assassinated by Jewish revisionists. . . . The Jewish Agency and Mapai Party collaborated with the British Police in concocting murder charges against three revisionists. . . . After a lengthy trial . . . the three were found innocent by a British Court and acquitted . . . in the meantime, Ben-Gurion and his disciples had exploited their empty murder charges to get a strong grip over the Zionist Organization.” This description is full of insinuations and misleading information (see, e.g., notes 9, 29) but is quite typical of the right-wing version of the events surrounding Arlosoroff’s murder.
136 E.g., Hecht, Perfidy, 204: “But there is one fact in the complex business that is obvious to all—Ben-Gurion’s flair for obedience to anyone resembling an Anglo-Saxon. A man’s soul can be permanently conditioned no less than a dog’s salivary glands. The Ben-Gurion soul has practiced bowing to English-speaking masters for thirty five years. And it must bow to Eisenhower’s Kansas accent as automatically. . . .” The reference here is to Ben-Gurion’s acceptance of President Eisenhower’s ultimatum to retreat from the Sinai. See above, 405.
137 Ibid., 190. For a discussion of American-Jewish attitudes towards the Holocaust, during and after World War II, see Peter Novick, The Holocaust in American Life (Boston: Houghton Mifflin, 1999).
138 The advertisement campaign for Perfidy included two full-page ads in the New York Times. Thirty-Five thousand copies of the book were sold. Shlomo Katz, “Ben Hecht’s Kampf,” Midstream (Winter 1962): 92, 98. Perfidy has recently been republished by Milah Press. Could it be a part of the kulturkampf against post-Zionism?
139 Hecht, Perfidy, 202, 270–76, n. 176. Hecht tells us that “An equally depressing matter on the Ben-Gurion agenda was the soon due Supreme Court decision on the Kastner business. The general feeling was it would be a split decision—which would be bad for the government clique. The decision, when it was delivered, was that—a split one [in a footnote Hecht quotes from the opinions of the justices, misspelling the names of three of the five]. All five Supreme Court judges upheld Judge Halevi’s verdict on the “criminal and perjurious manner” in which Kastner after the war had saved Nazi war criminal Becher “without justification.” Two of the judges further upheld Judge Halevi’s finding that Kasztner had collaborated with the Nazis during the war. Three did not. The theme throughout Perfidy was collaboration. The fact that the Supreme Court rejected the charge of collaboration is almost hidden in the clever phraseology. Furthermore, as Maoz informs us, four out of the five justices agreed that the charge of collaboration was not “true”—a small but significant difference for those who try to find meaning in split opinions. See Maoz, “Historical Adjudication,” 592–93. Hannah Arendt repeats this error when she practically ignores the Supreme Court’s opinion in the Kasztner trial, devoting to it only one paragraph. She was wrong to state that “Israel’s Supreme Court had not only accepted the arguments of the prosecution, it had adopted its very language.” Arendt, Eichmann in Jerusalem, 227.
140 Only selected opinions of the Supreme Court have been translated into English. My experience has been that one cannot rely on those selections to reflect the full and nuanced state of Israeli jurisprudence.
141 Yoram Shachar, Israel’s foremost expert on the history of the Proclamation, assured me in a telephone conversation, that the English translation is merely the product of hasty work on the day the Proclamation was announced.
142 Horwitz, “Writing Legal History in a Post-Formalist World,” The History of Law in a Multi-Cultural Society.
143 The training would begin on the graduate level and LL.M. and doctoral theses would address such issues as Res Ipsa Loquitur or Estoppel. Also following the German lead, usage of Latin was encouraged. Compare this culture with the Americanized legal culture of Israel today.
144 See Mautner, Yeridat Ha’formalizm.
145 Tom Grey, The New Formalism http://papers.ssrn.com/paper.taf?ABSTRACT_ID=200732.
146 Laura Kalman, “The Power of Biography,” Law and Social Inquiry 23 (1998): 503.