Steven Wilf has recently published this, typically erudite, book review in the summer 2009 edition of Law and History, appearing in Volume 27, p. 459. Congratulations Steven.
Assaf Likhovski, Law and Identity in Mandate Palestine, Chapel Hill: University of North Carolina Press, 2006. Pp. 328. $49.95 (ISBN 978-0-8078-3017-8).
Everyone in Mandate Palestine either was post-something or wanted to be post-something. Palestinian Arabs were crafting a post-Ottoman Arab identity, while Jews were busy designing a post-exilic identity. Both envisioned a period when the British would no longer be in command of the Mandate, and Arab and Jew alike considered how they might create a post-colonial legalism. After witnessing decades of intercommunal violence, the British, not surprisingly, dreamed simply about being post-Palestine.
Assaf Likhovski provides us with intellectual history of the relationship between law and identity in this formative period. Rejecting the idea that Jews worked with British legalists to assume the tasks of the colonial enterprise, Likhovski shows how Jewish and Arab lawyers in the Mandate, instead, worked sometimes cooperatively, sometimes independently in parallel worlds, to set out a counterpoint to English legalism. In general, Likhovski denies the classic colonizer/native dichotomy.
By constructing law such as protections against child labor or the regulation of marriage, the British created representations of how they envisioned their own civilizing legal mission. The British were embarked upon an ambivalent Anglicization, which preferred to institute new procedural norms rather than replace substantive law with English legalism. Arab lawyers sought to preserve French Ottoman law as a counterpoint to the English. Arab Palestinian legal identity, as reflected in al-Huquq, a law periodical published in Jaffa between 1923–1928, was a bit of a balancing act juggling Islamic, Arab, Ottoman, and French legal influences.
To Anglicize or not to Anglicize was a difficult question for Palestinian Jews. On the other side, against Anglicization, there was a Jewish movement, mishpat ha'ivri, whose purpose was to reconstruct classical Jewish law in a form that might serve as the basis for a modern legal code. Mishpat ha'ivri was a bricolage of different legal sources. Legal norms were excavated from traditional Jewish sources such as the Mishnah, a second-century legal code originating in the Land of Israel—while trying to keep its distance from later diaspora-based law. The religious was sifted out, the linguistic connections in Hebrew were shaped to create a coherent legal language, and, ironically, the whole mixture was recast in organized forms that were remarkably reminiscent of Roman law.
Likhovski's descriptions of debates within Jewish society are much richer than the corresponding portrait of Arab discussions of law and identity, though this may be due in part to the difference in the richness of the sources. Jewish Palestine established two important schools for legal education in the Mandate. A law school in Jerusalem established in 1920 at the instigation of the gifted British Jew Norman Bentwich taught English law as part of its commitment to civil service. It was divided into Arab and Jewish sections, and stressed the evolution of law into European models. The Tel Aviv School of Law and Economics, founded in the mid-1930s, was supposed to provide a vehicle for the revival of Hebrew law. However, this project withered away as the political success of establishing independence for a Jewish state satisfied nationalist aspirations.
Likhovski has an especially intriguing discussion of debates over Article 46 (1922), which required Palestinian courts to use English law "so far only as the circumstances of Palestine and its inhabitants permit." This Article was clearly intended to fill the lacunae in colonial law. It was used to bring common law English precedent and, ultimately, equitable jurisprudence to bear when addressing gaps in Ottoman law. Nevertheless, the exception stating that the law must be appropriate to the circumstances led to discussions about how far the inhabitants of Palestine might be Anglicized.
Are these parallel stories? Likhovski would like us to believe that like language, architecture, and competing historical narratives, law was a place to carve out particular ethnic identities. But the differences seem as striking as the similarities. Jewish legal revival projects are able to carve out space in educational and polemical forums, while Palestinian Arab legal expression is more truncated. Personal jurisdiction in the area of family law, a feature inherited from Ottoman society, creates challenges to Jewish and Arab legal traditions which ironically undermine their claims to authority. And, as Likhovski himself admits on occasion, a legal cultural account of identity encounters must ultimately engage questions of power.
Likhovski fails to properly examine how British identity was shaped. During the first ten years of British Rule nearly as many laws were passed in Palestine as in the British Parliament. Likhovski suggests that the British were ambivalent about their Anglicization project. What, then, were they doing?
Likhovski's excellent study is another example of Israeli legal history's coming of age. Identity is a tricky business. Likhovski has cast a subtle net to include multivocal approaches to legalism among different communities, has provided a sense of how identities shift over time depending upon political circumstances, and has included a reminder that the construction of identity—which its practitioners claim is a unique enterprise—is remarkably similar across different societies.