Document Type


Publication Date

Summer 2001




Cambridge University Press




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 colleges4 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" A 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."' I 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.


Forum: Assessing the Field, New Departures in Israeli Legal History, Part Three.

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