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In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine

Published online by Cambridge University Press:  04 July 2014

Assaf Likhovski
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My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.

Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.

The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.

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Articles
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Israel Law Review , Volume 29 , Issue 3 , Summer 1995 , pp. 291 - 359
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1995

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References

1 See generally Polonski, A., “Hukat Hanezikin (The Civil Wrongs Ordinance)” (May 1945) HaPraklit, at 3Google Scholar; Eisenman, Robert H., Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Shari'a in the British Mandate and the Jewish State (1978) 110–11Google Scholar; Malchi, Eliezer, Toldot Hamishpat Be'eretz-Yisrael: Mavo Histori Lamishpat Bemedinat Yisrael [The History of the Law of Palestine: An Introduction to the Law of Israel] (2nd ed., 1953) 159–61Google Scholar; Tedeschi, Guido (Gad), “Lacunae in Law and Article 46 of the Palestine Order-in-Council”, in Studies in Israel Law (1960) 166, at 227–28Google Scholar; Yadin, Uri, “Reception and Rejection of English Law in Israel”, (1962) 11 Int'l & Comp. L.Q. 59, at 66–67CrossRefGoogle Scholar; Gottschalk, R., “The Development of the Law of Torts in Israel”, (1961) 24 Mod. L.R. 245.Google Scholar

2 See generally Orucu, Esin, “The Impact of European Law in the Ottoman Empire and Turkey”, in Mommsen, W. J. & de Moor, J. A., eds., European Expansion and Law: The Encounter of European and Indigenous Law in 19th and 20th Century Africa and Asia (1992) 39, at 48Google Scholar; Malchi, Id., at 27–31; Tedeschi, Gad, “Me'ah Shana Lamejelle [The Centenary of the Mejelle]”, (1968) 25 HaPraklit 312.Google Scholar

3 Municipality of Haifa v. Khoury, (1932) 4 Rotenberg 1343. The only way a plaintiff could recover for personal injury, said Judge Baker, was by virtue of a civil action ancillary to a criminal one. (Id., at 1345–46). See also Rosenberg v. Zeidan (1927) 4 Rotenberg 1337 (a previous case in which the Court recognized that there was a general civil liability for damages caused by any negligent act).

4 Article 46 declared that in the absence of Ottoman law or local Palestinian legislation, the civil Courts of Palestine should “exercise” their jurisdiction “in conformity with”

“… the substance of the common law, and the doctrines of equity in force in England … Provided always that the said common law and doctrines of equity shall be in force in Palestine so far only as the circumstances of Palestine and its inhabitants… permit and subject to such qualifications as local circumstances render necessary”. The notion that there is a gap in the Palestinian law of torts and that this gap might be filled by recourse to Article 46 was raised as an obiter dicta in Palestine Mercantile Bank Ltd. v. Fryman, (1938) 5 P.L.R. 159, at 163.

5 Sherman v. Danovitz, (1940) 7 P.L.R. 363, at 367–68. Copland raised several other objections to the importation of English Law. See also Tedeschi, G. & Rosenthal, A., Pkudat Hanezikin Le'or Toldot Hi'hauuta Vetikuneha [Civil Wrongs Ordinance in Light of the History of its Preparation and Amendments] (1962/1963) viGoogle Scholar (mentioning a letter written by Chief Justice Trusted three months before the Sherman decision in which Trusted adopted a similar position).

6 See “Dine Hanezikin Be'eretz Yisrael [Torts in Palestine]”, (Jan. 1945) HaPraklit at 3; “Hukat Hanezikin [The Civil Wrongs Ordinance]”, (1946) 3 HaPraklit 97–98; Tedeschi & Rosenthal, Id., at iii–vii.

7 See Tibawi, A. L., British Interests in Palestine 1800–1901: A Study of Religious and Educational Enterprise (1961)Google Scholar; Said, Edward, Orientalism (Vintage books edition, 1979) 100Google Scholar (discussing the history and the colonialist nature of the London Society for Promoting Christianity among the Jews).

8 The defendants filed a motion to dismiss the case on the ground that no cause of action has been shown. Judge Curry of the District Court of Jerusalem dismissed the motion, but nevertheless said that “it appears to me at present that the respondent [the Orrs] is unlikely to succeed”. Rendle v. Orr 1946 S.C.D.C. 94–95 (1946) (Jerusalem District Court).

9 Orr v. London Society for Promoting Christianity among the Jews (1947) S.C.D.C. 3, 5, 11, 15, 18 (Jerusalem District Court).

10 Id, at 18.

11 London Society for Promoting Christianity among the Jews v. Orr, (1947) 14 P.L.R. 218, at 223.

12 I do not claim that the colonial perspective is the only legitimate way of viewing the Orr decision (or the process of anglicization). One can see Orr as an example of the important role of empathy and personal connections in judicial decisions. The Orrs were connected to the British judges of the Supreme Court and these judges were obviously more inclined to rule in favor of the young daughter of a close British acquaintance than to assist an adult Arab or an adult Jew. There were also some practical considerations which might have led to the different decisions in Sherman and Orr (the desire to let the public insure itself before imposing tort liability, a fear of overloading the Courts with tort claims etc.). See Tedeschi & Rosenthal, supra n. 5, at vii (discussing these considerations in the context of the Civil Wrongs Ordinance).

13 See generally Horowitz, Dan & Lissak, Moshe, Origins of the Israeli Polity: Palestine Under the Mandate (1978)Google Scholar (elaborating the notion of a “dual society”); Lockman, Zachary, “Railway Workers and Relational History: Arabs and Jews in British-Ruled Palestine”, (1993) 35 Comparative Studies in Society and History 601CrossRefGoogle Scholar; Lockman, Zachary, “Exclusion and Solidarity: Labor Zionism and Arab Workers in Palestine, 1887–1929”, in Prakash, Gyan, ed., After Colonialism: Imperial Histories and Postcolonial Displacements (1993) 211Google Scholar (discussing “relational” history).

14 See generally, Williams, Patrick and Chrisman, Laura, eds., Colonial Discourse and Post Colonial Theory: A Reader (1994) ixGoogle Scholar; Said, Edward, Culture and Imperialism (Vintage books edition, 1994) 61.Google Scholar

15 See generally Collier, Jane F., “Review Essay: Intertwined Histories: Islamic Law and Western Imperialism”, (1994) 28 Law and Society R. 395CrossRefGoogle Scholar; Kennedy, David & Tennant, Chris, “New Approaches to International Law: A Bibliography”, (1994) 35 Harv. Int'l L.J. 417Google Scholar; Moore, Sally Falk, “Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running ‘Their Own’ Native Courts”, (1992) 26 Law and Society R. 11CrossRefGoogle Scholar; Note, “Interpreting Oriental Cases: The Law of Alterity in the Colonial Courtroom”, (1994) 107 Harv. L.R. 1711. See also Fisher, William W. III, “Ideology and Imagery in the Law of Slavery” (1993) 68 Chi-Kent L. R. 1051Google Scholar (attempting in a somewhat similar fashion to link cultural images and legal doctrine in American law).

16 See Said, Orientalism, supra n. 7, at 4, 32, 38–39, 51, 57, 150, 233, 300–1.

17 Mitchell, Timothy, Colonising Egypt (University of California edition, 1991) 167.Google Scholar

18 There is no comprehensive study of British images of the local populations (both Arabs and Jews) in British Palestine. There are some studies dealing with the image of Jews during certain periods. See Wasserstein, Bernard, The British in Palestine: The Mandatory Government and the Arab Jewish Conflict 1917–1929 (2nd ed., 1990)Google Scholar; Friesel, Evyatar, “Through a Peculiar Lens: Zionism and Palestine in British Diaries, 1927–31”, (1993) Middle Eastern Studies 419CrossRefGoogle Scholar (discussing the attitude of British officials towards the Jews in the 1920s). Colonialist images had concrete effects on government structures. Government hospitals, for example, were separated into “native” and “British” wards. See Reuveny, Jacob, Mimshal Hamandat Be'eretz Yisrael 1920–1948: Nituakh Histori Medini [The Administration of Palestine Under the British Mandate 1920–1948: An Institutional Analysis] (1993) 185.Google Scholar

19 Holmes, John Heynes, Palestine To-day and To-morrow: A Gentile's Survey of Zionism (1929) 151–52Google Scholar; See also Storrs, Ronald, The Memoirs of Sir Ronald Storrs (1937) 385–86Google Scholar, 388 (noting the “refusal” of the Jews to be treated as natives, and quoting “Dryden's inspired couplet”: “God's pampered people whom, debauch'd with ease/No king could govern and no God could please”); Bentwich, Norman and Bentwich, Helen, Mandate Memories 1918–1948 (1965) 90, 91Google Scholar; Frumkin, Gad, Derekh Shofet B'Yerushalayim [The Life of a Jerusalem Judge] (1956) 312–13Google Scholar.

20 See e.g., Royal Institute of International Affairs, Great Britain and Palestine 1915–1939: Information Department Papers No. 20A, 33 (1939) (mentioning “the profound psychological difference between the Anglo-Saxon and the Semitic races” and noting that while this difference may not characterize the “whole of the Jewish branch of the Semitic race”, it does characterize the “eastern Jews [who] form the bulk of the Palestinian immigrants”.)

21 Freisel, supra n. 18, at 425.

22 Holmes, supra n. 19, at 154.

23 Friesel, supra n. 18.

24 Bentwich, supra n. 19, at 133; Holmes, supra n. 19, at 152; Wasserstein, supra n. 18, at 12.

25 Ashbee, C. R., A Palestine Notebook 1918–1923, (1923) 27–28Google Scholar; Freisal, supra n. 18, at 424, 425, 427.

26 Ashbee, id., at 95 (“the Arab is not so clever [as the Jew] but in many respects is much nicer than the Jew: not such a modernist, but so much more of a gentleman”.) See also Holmes, supra n. 19, at 151 (quoting an English official who stated that “these Arabs, you know, well they are gentlemen, and one can invite them to his table, but, the Jews!…”)

27 See Bentwich, supra n. 19, at 142; Wasserstein, supra n. 18, at 10–11; Friesel, supra n. 19, at 429. The effort to protect the Arabs (by discriminating against Jews) led Holmes to compare the situation of the Jews in Palestine with that of the blacks in the American South. See Holmes, supra n. 19, at 155–56.

28 Bentwich, supra n. 19, at 91–92; Biger, Gideon, Moshevet Keter O Bayit Leumi: Hashpa'at Hashilton Habriti al Eretz Yisrael 1917–1930: Bekhina Geografit Historit [Crown Colony or National Home: British Influence Upon Palestine 1917–1930: A Geo-Historical Analysis] (1983) 47.Google Scholar

29 See e. g. Bentwich, supra n. 19, at 155, 160.

30 Norman Bentwich, Palestine (1934) 144–46; Biger, supra n. 28, at 2; Wasserstein, supra n. 18, at 87.

31 Biger, supra n. 28, at 59; Wasserstein, supra n. 18, at 342–43.

32 The cracks appeared earlier. The Mandate system itself was an early symptom of the decay of imperialism. See Reuveni, supra n. 18, at 20; Said, Orientalism, supra n. 7, at 248.

33 See e.g. Marlowe, John, Rebellion in Palestine (1946) 102.Google Scholar

34 See Roger Louis, Wm., “British Imperialism and the End of the Palestine Mandate”, in Roger Louis, Wm. and Stookey, Robert W., eds., The End of the Palestine Mandate (1986) 1, 23–24.Google Scholar

35 A nice example of the changes in colonial perceptions as a result of the Second World War can be found in the information paper on Palestine mentioned in note 20 above. The passage about the difference between the “Anglo-Saxon” and “Semitic” races was removed from the 1945 edition. See Royal Institute of International Affairs, Great Britain and Palestine 1915–1945: Information Papers No. 20, 38 (1945). See also infra, n. 203.

36 Frumkin, supra n. 19, at 210, 245, 348, 350, 357, 466–69 (1956); Norman Bentwich, England in Palestine (1932) 283; Reuveni, supra n. 18, at 91, 132; Rubinstein, Eliakim, Shofte Aretz: Lereshito Ulidmuto Shel Be'it Hamishpat Ha'elyon Beyisrael [Judges of the Land: The Origins of the Supreme Court of Israel] (1980) 19.Google Scholar

37 The difference in the cost of living in Britain and Palestine, the ethnic division of the country, or the fact that some native judges were considered corrupt.

38 See (1936) 3 P.L.R. III and (1937) 4 P.L.R. III.

39 Frumkin, supra n. 19, at 275–76.

40 Frumkin, supra n. 19, at 275–76, 465–69. See also “Harkhavat Samkhutam Shel Shone Hashalom Ha'eretz-Yisraelim, [Wider Jurisdiction of Palestinian Judges]”, (Apr. 1944) HaPraklit at 5; “Leminuy Shoftim Elyonim Khadashim [Appointing New Supreme Court Judges]”, (Nov. 1944) HaPraklit; “Shofte Shalom “Britim” Veyehudim, [“British” and Jewish Magistrates]”, (1945) 2 HaPraklit 98Google Scholar; “Shoftim Britim Ve'eretz Yisraelim [British and Palestinian Judges]”, (1946) 3 HaPraklit, 164; “Din Vekheshbon Mehave'ida Ha'artzit Ha-XII Shel Histadrut Orkhe Hadin Hayehudim Be'eretz Yisrael [Report from the XII National Convention of the Jewish Bar Association in Palestine]”, (1947) 4 HaPraklit 13; “Bitul Hazkhut Leberur Shoftim [The Abolition of the Right to Choose Judges]”, (1947) 4 HaPraklit 197.

41 See generally, Owen, Roger, “Defining Tradition: Some Implications of the Use of Ottoman Law in Mandatory Palestine”, (1994) 1 Harvard Middle Eastern and Islamic R. 115Google Scholar, 117.

42 Moore, supra n. 15, at 41; W. J. Mommsen, Introduction, to European Expansion and Law, supra n. 2, at 4–5.

43 See Bertram, Anton, The Colonial Service (1930) 154Google Scholar; Elias, Olawale, British Colonial Law: A Comparative Study of the Interaction Between English and Local Laws in British Dependencies (1962) 80–81.Google Scholar See also Zweigert, Konard & Kotz, Hein, Introduction to Comparative Law, Vol. 1 (2nd ed., 1987) 233–45.Google Scholar

44 Elias, id., at 11–13.

45 Zweigert & Kotz, supra n. 43, at 235, 239, 241; Bentwich, supra n. 36, at 273, 279; Said, supra n. 7, at 37 (quoting Lord Cromer on “the British official who denies [the African savage] gin but gives him justice”); Moore, supra n. 15, at 18, 21; Martin Chanock, “The Law Market: The Legal Encounter in British East and Central Africa”, in European Expansion and Law, supra n. 2, at 279, 280; Collier, supra n. 15, at 395, 396. The results of the introduction of these European concepts were sometimes opposite to the expectations. Bentwich recounts that a Haifa Arab complained about the incorruptibility of British legal machinery which caused an increase in the number of crimes in the Haifa area. In Ottoman times, it seems, crime was unprofitable, because the criminal would have spent all his ill gotten gains on bribing the judges and law officers. Once the element of bribe was gone, crime became profitable, and thus proliferated. See Bentwich, Norman, My 77 Years: An Account of My Life and Times 1883–1960 (1962) at 58.Google Scholar

46 See Elias, supra n. 43, at 5, 137, 141, 147; Zweigert & Kotz, supra n. 43, at 235, 241–42; Yoram Shachar, “Mekoroteha shel Pekudat Hakhok Haplili, 1936 [The Sources of the Criminal Code Ordinance, 1936]”, (1979) 7 Iyunei Mishpat 75. What the British saw as belonging to “religious law” was not necessarily what the natives saw as belonging to religious law. The English tended to see family law as belonging to the religious sphere. Contract law was seen as “secular”. But of course, this division would not necessarily be that of a Moslem or a Jewish lawyer. The prohibition on usury is just one example of a norm which has “religious” significance in some legal systems. See also Lariviere, Richard W., “Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past”(1989) 48 J. of Asian Studies 757Google Scholar, 758 (discussing the problem of defining “religion” in a colonial context).

47 Mommsen, supra n. 42, at 10.

48 Fisch, Jorg, “Law as a Means and as an End: Some Remarks on the Function of European and non-European Law in the Process of European Expansion”, in European Expansion and Law, supra n. 2, at 15Google Scholar, 31.

49 Bertram, supra n. 43, at 152. See also Eisenman, supra n. 1, at 107.

50 See Hooper, C. A., The Civil Law of Palestine and Transjordan (1936) 31Google Scholar; Malchi, supra n. 1, at 16–42.

51 See generally Hooper, id., at 30–34; Malchi, supra n. 1, at 27–31, 43–74; Friedmann, Daniel, “The Effects of Foreign Law on the Law of Israel: Remnants of the Ottoman Period”, (1975) 10 Is. L.R. 192Google Scholar; Orucu, supra n. 2, at 44–51; Said, supra n. 7, at 78.

52 Hooper, id., at 29.

53 Bertram, supra n. 43, at 154 (emphasis added).

54 Id., at 153 (emphasis added).

55 Crusader rhetoric and visual images were common in British public iconography both in Cyprus and in Palestine.

56 Palestine Parodies Being the Holy Land in Verse and Worse, Written by Mustard with the Assistance of Cress and Illustrated by Blass (private edition, 1938) [a copy of the book is found in the Widener library, Harvard University]. “Cress” was Judge P.E.F. Cressall.

57 Id., at 171.

58 Id., at 130. See also id., at 91, 93, 96, 100 (mentioning ancient commentaries on the Mejelle — “the common law of the 6th century”).

59 Id., at 147.

60 One of the “cases” in the book describes a Christian who converted to Islam when he discovered that according to “article 2632974” of the Mejelle, “he could get rid of a tiresome wife by word of mouth”. Id., at 90. This may be a hint to the familiar colonial theme — the colonizers as protectors of native women from native men.

61 Id., at 98.

62 Id., at 102, 149.

63 Id., at 108. See generally Lahav, Pnina, “Governmental Regulation of the Press: A Study of Israel's Press Ordinance” (1978) 13 Is. L.R. 230.Google Scholar

64 Report by His Britannic Majesty's Government on the Administration under Mandate of Palestine and Transjordan for the year 1924, at 19.

65 Silberg, Moshe, “Kinus Ha'yurisdictzya Ha'eretz Yisraelit [Compiling Palestinian Case Law]”, Ha'aretz 1934Google Scholar, reprinted in Silberg, Moshe, Ba'in Ke'ekhad, (1982) 111Google Scholar, 112. Silberg added sarcastically “his honor forgot only one thing: the Nazis burn only good books”. See also Lahav, supra n. 63, at 245 (discussing British contempt toward Ottoman laws).

The British attitude toward Ottoman law naturally raises the question — wasn't this description true? Wasn't Ottoman law really archaic, incomprehensible, harsh? The answer is, of course, that there is no “objective” or “true” description of “reality”. The same images and metaphors used to describe Ottoman law, could just as easily have been used to describe English Law. Certainly many provisions of the Mejelle were “archaic” or incomprehensible (see e.g. Friedmann, supra n. 51, at 197 n. 29; Mejelle, article 1705 (prohibiting “dancers and buffoons” from testifying)). But this is also true of parts of English law. The Common law is certainly disorganized as much, and in some senses, even more than the Mejelle. Parts of the Common law were more archaic than Ottoman law. It is true that Ottoman law was incomprehensible, but incomprehensibility is a relative, not an absolute concept. Ottoman law was incomprehensible to English lawyers. It was comprehensible to Moslem or French ones. Finally, some Ottoman legislation was certainly less harsh and more liberal than the mandatory legislation that replaced it. See Lahav, supra n. 63, at 244 (comparing the Ottoman press law with the mandatory Press Ordinance, 1933). The criticism of Ottoman law was thus only partly the result of “defects” in that law. It was also caused by orientalist notions.

66 See Malchi, supra n. 1, at 12. There are, however, some minor differences in their approach. While Malchi saw 1935 as the starting point of the process of anglicization, Eisenman seems to suggest 1932 as the starting point. Eisenman also placed less emphasis than Malchi on the “reaction” in the 1940s. See Malchi, id., at 15, 123–24; Eisenman, supra n. 1, at 108–9, 110, 135.

67 Article 2 of the Mandate.

68 As opposed to religious courts.

69 See Tedeschi, supra n. 1, at 221–222; Zweigert & Kotz, supra n. 43, at 234, 237–238. In some of the colonies, the relevant articles also mentioned English statutory law. See Tedeschi, id.; Yadin, supra n. 1, at 59, 61.

70 See Friedmann, Daniel, “The Effects of Foreign Law on the Law of Israel: Infusion of the Common Law into the Legal System of Israel”, (1975) 10 Is. L.R. 324, at 327–52.Google Scholar

71 Mogannam, Mogannam E., “Palestine Legislation Under the British”, in The Annals of the American Academy of Political and Social Science — Vol. 164: Palestine — A Decade of Development (1932) 47, 49Google Scholar. See also Bentwich, supra n. 36, at 273.

72 See generally Stein, Kenneth W., The Land Question in Palestine, 1917–1939 (1984)Google Scholar; Atran, Scott, “Le Masha'a et la Question Fonciere en Palestine, 1858–1948”, (1987) Annales 1361CrossRefGoogle Scholar; Malchi, supra n. 1, at 101–5; “The Legal System”, in Israel Yearbook (1953) 85.

73 See Bentwich, supra n. 36, at 273, 277 (describing the legislation effort as an attempt by an “active administration” or a “progressive administration” to facilitate development and modernization). See also Wasserstein, supra n. 18, at 91, 148–151. This pro-Zionist use of legislation was criticized by some in the British administration. See Ashbee, supra n. 25, at 234, 269–70 (asking rhetorically is Bentwich the right man “to make laws for this, a Moslem country”, and lamenting the commitment of the British administration to the policies of Zionist propaganda, instead of protecting the local inhabitants from industrialization).

A different picture of Bentwich, as opposed to anglicization (of the criminal law) is found in Colonial Office correspondence studied by Prof. Yoram Shachar. In that correspondence, Colonial Office officials constantly complained that Bentwich was opposed to the complete anglicization of certain provisions of the Ottoman Penal Code. See Shachar, supra n. 46, at 75, 105–6; Shachar, Yoram, “Anusa Alpi Din? [Lawfully Raped?]”, (1982) 8 Iyunei Mishpat 649, at 675Google Scholar; Shachar, Yoram, “Kavanat Hamekhokek be ‘Kavanah Tekhila’” [Legislative Intent in “Malice Afore Thought”] (1982) 2 Mehkarei Mishpat 204Google Scholar, at 207–8. It seems, however, that Bentwich's position was more nuanced. In 1928, for example, he decried “the unsuitability” of the Ottoman Penal Code “to the needs of the modern state”, and said that “it cannot be long before what remains of that truncated body will receive decent burial and be entirely replaced”. Preface in The Criminal Law of Palestine — 1928 (Norman Bentwich Comp., 1928).

74 Bentwich, supra n. 36, at 273.

75 Id., at 273–74. See also Owen, supra n. 41, at 127.

76 Bentwich, supra n. 36, at 274–75. Most of the Mejelle remained in force throughout the Mandate. The only parts of it which were repealed were those parts dealing with arbitration (1926), Partnership (1930), Torts (1947), and (to a certain extent) Bankruptcy (1936). See Eisenman, supra n. 1, at 126–31. A large part of French based Ottoman law was replaced in the 1920s. Another part (criminal law, civil procedure) was replaced in the 1930s.

Perhaps another motive for the replacement of French law was the imperial competition between Britain and France in the Orient. See generally Said, Orientalism, supra n. 7, at 211 (Lord Cromer complaining about the attraction that the “semi educated” “Asiatics and Levantines” have to French civilization, not recognizing the “merit of sincerity” of the “undemonstrative, shy Englishman”).

It is interesting to note that not all British lawyers in Palestine viewed French law as “unsuitable”. See Samuel, Horace B., “From the Palestinian Bench”, (1920) 88 The Nineteenth Century 498Google Scholar, at 500.

77 See Norman Bentwich, supra n. 45.

78 Shachar, supra n. 46 (the history of the Criminal Code Ordinance); Eisenman, supra n. 1, at 120–129 (changes in the Ottoman law of evidence and civil procedure, and the replacement of the Ottoman Code of Civil Procedure).

79 See Reuveni, supra n. 18, at 84–86; Bar Shira, Y., “Hatkhika Hakhadasha Bedine Avoda [The New Labor Legislation]”, (1945) 2 HaPraklit 227Google Scholar; Bentwich, supra n. 19, at 88; Malchi, supra n. 1, at 164.

80 Friedmann, supra n. 70, at 324, 326, 357; Malchi, supra n. 1, at 102–3.

81 Malchi, supra n. 1, at 141.

82 Shibel v. Taha, (1931) 2 Rotenberg 425. It took the Court just two sentences to introduce the doctrine. See also Habayeb v. Saba, (1934) 2 P.L.R. 228; Homsi v. Commission on the Finance of the Orthodox Patriarchate, ( 1934) 2 P.L.R. 114; Malchi, supra n. 1, at 115, 132; Tedeschi, supra n. 1, at 207.

83 See e.g. Alpert v. Chief Execution Officer, (1929) 1 Rotenberg 126; Mottes v. Matzkin, (1931) 4 Rotenberg 1437; Baron v. Bedolach, (1927) 1 Rotenberg 180; Hammameh v. Shifrin, 1 Rotenberg 196; Aboutboul v. Abyad, (1935) 4 Rotenberg 1572; Hinkis v. Attorney General, (1930) 2 Rotenberg 467. See also Malchi, supra n. 1, at 138.

84 Trachtengot v. Wilson, 1 Rotenberg 175; Miara v. Zimmerman, (1933) 2 Rotenberg 708; Durzi v. Najia, (1933) 1 P.L.R. 789.

85 See Dickstein, P., “Hakhraza al Hamishpat Ha'ivri [Proclamation on Jewish Law]”, (1948) 5 HaPraklit 3Google Scholar, 4 (“In the [first] 10–15 years, the inhabitants of Palestine, its judges and lawyers were little aware of the existence of Article [46]. Then came a movement of anglicization … legal scholars, judges, lawyers and legislators in a race against one another turned the law of Palestine into English law”.). See also “The Legal System”, supra n. 72, at 82–83.

86 See Rosenberg v. Zeidan, (1927) 4 Rotenberg 1337 (discussing Ottoman law and liability for personal injury); Bathum v. Chief Execution Officer, (1934) 2 P.L.R. 40 (deciding that an execution officer cannot force a wife to return to her husband, a decision based on a commentary on the Ottoman Law of Execution).

87 Municipality of Haifa v. Khoury, supra n. 3, at 1349 (Frumkin, J., “it can hardly be assumed that the omission of reference to injuries to person is only the result of an oversight or unthoughtfulness”.)

88 Pinhassovitch v. Litvinsky, (1926) 5 Rotenberg 1777 (holding that since “there is no [local] law whereby specific performance can be enforced in Palestine” therefore “the remedy is in damages”.). See also Kamal v. Rokach, (1926) 1 Rotenberg 30; Hamanchil Company v. Municipality of Jaffa, (1926) 4 Rotenberg 1452. Even when English law was used, the Court was often uncertain as to its power to apply it. See Hazine v. Algemeene Yzer Staalmaatschappy ‘Ferrostaal’ Haag, 4 Rotenberg 1493.

89 See e. g. Elias v. Director of Lands, 1 P.L.R. 735 (non-charitable trusts do not exist in Palestine). But see El Jorf v. Ed Din, (1934) 2 P.L.R. 138 (English rules of prescription with relations to trustees can be used in the case of a contract for planting of trees). See also Tedeschi, supra n. 1, at 211–12.

90 Yared v. Khoury, (1925) 4 Rotenberg 1209 (“we are by Clause 46 … authorized to apply rules of equity to be found in English law when not inconsistent with the Ottoman law”.) See also Zarrub v. Abyad, 3 P.L.R. 14 (Baker, J., expressing the same idea); Malchi, supra n. 1, at 113–14.

91 Such an idea was certainly implied in Judge Frumkin's opinion in this case. The question before the court was whether prescription was a bar to an action in the case of fraud. Judge Frumkin said that “there should be no excuse under existing Ottoman law why prescription should not run in this case, and I do not think that the application of the rules of prescription would under the circumstances of this case be contrary to principles of equity and natural justice”. Yared v. Khoury, supra n. 90, at 1212 (emphasis added).

92 The “pipeline” metaphor is often found in mandatory and Israeli legal literature. See e.g. Polonski, supra n. 1, at 184. Prof. Pnina Lahav suggested in an interview the possibility that its source might be found in Jewish law. Prof. Yoram Shachar in interview has pointed to possible literary sources of this metaphor.

93 See e.g. Penhas v. Felam, (1925) 3 Rotenberg 995; Friedman v. Miller, (1931) 2 Rotenberg 788; Raym v. Hadar Hacarmel Cooperative Society, (1933) 3 Rotenberg 1001; Ottoman Bank, Haifa v. Mulki, (1935) 9 Rotenberg 766. See also Chedid v. Tenenbaum, (1933) 2 Rotenberg 406, at 418.

94 Faruqi v. Ayoub, (1937) 4 P.L.R. 331, at 338.

95 Malchi, supra n. 1, at 14, 144.

96 The sources for the period of the 1920s and early 1930s are rather poor. There are collections of judgments from the 1920s and early 1930s, but these collections were compiled in the middle of the 1930s. Only then did regular reports appear, and so the collections of early judgments include only those cases that reached the compilers.

97 Foucault, Michael, The Order of Things: An Archaeology of the Human Sciences (Vintage Book edition, 1994) XXI.Google Scholar

98 Frumkin, supra n. 19, at 238–39. See also Kirk-Greene, A. H. M., A Biographical Dictionary of the British Colonial Service, 1939–1966, (1991) 78.Google Scholar

99 Kirk-Greene, id., at 231.

100 McDonnell, Michael F. J., A History of St. Paul (1909).Google Scholar After his retirement, McDonnell continued his research into the history of the school. The notes he gathered were published posthumously. See McDonnell, Michael F. J., The Annals of St. Paul's School (1959)Google Scholar; McDonnell, Michael F. J., The Registers of St. Paul's School, 1509–1748 (1977)Google Scholar.

101 See McDonnell, A History of St. Paul, id., at 465, 472.

102 See e.g. id., at 466. See generally Mangan, J. A., “Introduction: Imperialism, History and Education”, in Mangan, J. A., ed., “Benefits Bestowed?”: Education and British Imperialism (1988) 1, 6–8Google Scholar (discussing the link between British imperialism and the public school system).

103 Wasserstein, supra n. 18, at 11, 214–15 (McDonnell's antisemitic and pro-Fascist stance). McDonnell's antisemitism was noted by other contemporaries. See e.g. Frumkin, supra n. 19, at 343. See also Rubinstein, supra n. 36, at 20–21.

104 Attorney General v. Rubashoff, (1930) 1 P.L.R. 876.

105 Id., at 880, 882.

106 In a similar case decided the same day, the Jewish editor of an English language newspaper which published a translated version of the same article was convicted. In his decision McDonnell said that “we must mark our disapproval of the fact of the editor of an English paper falling into the error of giving further currency to matters such as this”. Attorney General v. Schwartz, (1930) 1 P.L.R. 883, 884 (emphasis added).

McDonnell was pro-Arab, and this attitude eventually led to his early retirement. He was forced to resign in the aftermath of a 1936 opinion, El Qasir v. Attorney General, (1936) 3 P.L.R. 121. This case involved an attempt by the British army to blow up parts of old Jaffa in the early phases of the Arab revolt. Several Arab inhabitants of Jaffa received unsigned official notices informing them that their houses would be blown up as part of a scheme “for opening up and improving” the city of Jaffa. The inhabitants petitioned the Supreme Court and McDonnell in his opinion criticized “the singularly disingenuous lack of moral courage displayed by the administration”. The Government, he said, should have declared “frankly and truthfully” that the demolition was to be carried out for “defensive” rather than “aesthetic” purposes. McDonnell's opinion in this case made him a hero of the Arab community. See “Chief Justice to Retire”, Palestine Post, Sept. 19, 1936 (mentioning Arab proposals to name a street in Jaffa after him). But this does not mean that McDonnell saw the Arabs as his equals. McDonnell's criticism was not directed at the action of demolition itself. Rather, McDonnell criticized the Government for failure to abide by the (public school) ethos of “moral courage”, “frankness” and fair play. McDonnell's refusal to see the natives, both Jews and Arabs, as his equals was manifested in various ways. McDonnell forced the Anglo-Jewish Attorney General Norman Bentwich and the Arab junior legal adviser, Musa al-Alami to relinquish their positions. See Wasserstein, supra n. 19, at 212, 214.

107 Haycraft published a treatise called Executive Power in Relation to Crime and Disorder, or Powers of Police in England, A Short Treatise on the Executive Power Which May be Exercised by Private Citizens and Official Persons for the Pursuit of Crime and the Maintenance of Public Order (1897). Haycraft also had more opportunities to keep in touch with English law during his colonial career. Unlike McDonnell, whose early colonial career was in West Africa, where English law was little used, Haycraft's prior colonial career was in small colonies: Cyprus, Gibraltar, Mauritius and Grenada, where English law was very dominant. See Kirk-Greene, supra n. 98, at 163; Zweigert & Kotz, supra n. 43, at 238; Elias, supra n. 43; Frumkin, supra n. 19, at 243–44; Rubinstein, supra n. 36, at 20.

108 See Frumkin, supra n. 19, at 243–44.

109 Malchi, supra n. 1, at 14–15, 120–23.

110 Eisenman, supra n. 1, at 109–10, 130.

111 See e.g. Sherman v. Danovitz, supra n. 5 (Copland, J., saying “certain provisions of the Common law and doctrines of equity have been applied in this country, but they have been applied only to a minor degree. We have, rightly or wrongly, the difference between a penalty and liquidated damages. The doctrine of specific performance and equitable title can now be invoked, and the Common law of rules of evidence are largely applied in the trial of cases in the Courts”.) Copland certainly did not mention all the rules imported (especially in contract law), but his list does show that there has been an exaggeration as to the scope of anglicization during the late 1930s. Furthermore, in the late 1930s, the Court tried to reverse some “anglicized” decisions of the early Court. See Palestine Mercantile Bank v. Fryman, supra n. 4 (the doctrine of consideration is not part of the law of Palestine).

112 Frumkin, supra n. 1, at 354.

113 Id., at 348. See also Kirk-Greene, supra n. 98, at 242.

114 Id.

115 Id.

116 Frumkin, supra n. 19, at 348–49. See also Rutman v. Khalil, (1943) 10 P.L.R. 407, at 414 (Copland, J. complaining about “the excessive number of actions which these courts — the higher Courts at any rate — unfortunately have to try”.)

117 Municipal Corporation of Jerusalem v. Cattan, (1938) 5 P.L.R. 488; Attorney General v. Moskovitz, (1938) 5 P.L.R. 345; Goddard v. Attorney General, (1939) 6 P.L.R. 340; Sherman v. Danovitz, supra n. 5, at 368; Hershman v. Inspector General of the Police, (1942) 9 P.L.R. 425; Central Agudath Israel v. Chief Secretary, Government of Palestine, (1942) 9 P.L.R. 572; “Changes in the Legal Service”, (Apr. 1944) HaPraklit 5.

118 Or as the contemporary joke went, McDonnell was replaced because he could not be trusted. Frumkin, supra n. 19, at 347.

119 Kirk-Greene, supra n. 98, at 360.

120 Frumkin, supra n. 19, at 350–52.

121 See e. g. Karwassarsky v. Moyal (1939) 6 P.L.R. 279, at 281 (Copland, J., discussing a change of venue request from the District Court of Arab Jaffa to that of Jewish Tel Aviv, by a Jewish advocate, due to the danger faced by Jews when traveling to Jaffa. Copland rejected the request inter alia because “the petitioner will at any rate be fortified by the knowledge that in encountering the dangers and perils, which he anticipates that he will meet, those dangers and perils will be shared in the same degree by his friend Mr David Moyal [the respondent]. That will, I am sure, prove to be a great consolation to him”.); Seligman v. Attorney General, (1939) 6 P.L.R. 405, at 408 (Trusted, CJ., discussing the conviction of a Jewish advocate for conspiring to aid illegal Jewish immigration (on the eve of the Second World War) and saying “that an educated man, knowing the conditions from which illegal immigrants may come, and the conditions under which they travel to this land, and the consequent ever present danger of contagious or infectious disease, should contemplate assisting them to land … is appalling”.)

122 Manning was the judge who issued the rule nisi against the Government in the Jaffa case discussed supra n. 106. See El Qasir v. Attorney General, (1936) 3 P.L.R. 121, at 126. But unlike McDonnell, he was not overtly pro-Arab. It is true that some Jews criticized him, apparently because in a frustration of contract case connected with the Arab Rebellion — Palwoodma v. Majdalani, (1937) 4 P.L.R. 271 — Manning failed to decide in favor of the Jewish party. See P. Dikstein, “Atzma'ut Medinit Ve'atzma'ut Mishpatit [Political and Legal Independence]”, (1948) 5 HaPraklit 107, at 112; Meron, Ya'akov, “The Mejelle Tested by its Application”, (1970) 5 Is. L.R. 203CrossRefGoogle Scholar, at 206–7. It seems however, that that decision (with which Judge Frumkin enthusiastically concurred) was based on British policy considerations, rather than pro-Arab sentiments. See Eisenman, supra n. 1, at 132–33.

123 Frumkin, supra n. 19, at 349.

124 Faruqi v. Aiyub, (1935) 2 P.L.R. 390 [hereinafter Faruqi I].

125 Faruqi I, at 392.

126 See Akel v. Alayyan, (1938) 5 P.L.R. 319, at 325–26; Malchi, supra n. 1, at 123–24.

127 Faruqi I, at 394.

128 The fact that the case was not even reported in English reports may be an indication that the remark of the Privy Council was unintentional. See Khoury v. Khayat, (1943) 10 P.L.R. 271, at 279 (referring to “an unreported case of Sheik Suliman v. Michel Habib (P. C. Appeal No. I of 1935”)). This claim may be wrong as I did not have the occasion to consult the pleadings in the original Privy Council file in London.

129 The case was remitted to the District Court in Jaffa, and was then appealed to the Supreme Court of Palestine. Faruqi v. Ayoub, (1937) 4 P.L.R. 331, at 333–34 [hereinafter Faruqi II].

130 Ayoub v. Faruqi, (1941) 8 P.L.R. 116 [hereinafter Faruqi III]. The majority of Palestine Supreme Court judges thought that equitable doctrines are not applicable since there is no “gap” in local law. See Akel v. Alayyan, supra n. 126, at 325 (Trusted, J.); Paz v. Zeidan, (1938) 5 P.L.R. 369, at 371 (Copland, J.); Khoury v. Slavouski, (1938) 5 P.L.R. 378, at 385 (Frumkin, J.) See also Tedeschi, supra n. 1, at 199 (claiming that finding gaps in the legal system of Palestine can only be done by an internal comparison, rather than by comparing the law of Palestine to English law).

131 “It is plain that their Lordships studiously refrained from expressing any opinion as to the effect of this clause [Article 46] upon the issues in this action, and in this respect it would appear that one of the judges of the Supreme Court [Manning] was under a misapprehension”. (Faruqi III, at 118).

132 Faruqi III, at 120 (emphasis added).

133 A truer assessment of the effect of the introduction of the equitable distinction was given by Judge Copland in Khoury v. Slavouski, supra a. 130 (“The effect [of Faruqi I is to nullify the provisions of Art. 111, and the whole basis of the present law of contracts for the sale of land has been cut away”.). It is interesting to note that both sides to the political conflict were happy with the result. The Arabs, because of their (short term) victory. The Jews because the case opened the door to the importation of specific performance. The Arab reaction is evident in Akel v. Alayyan, supra n. 126 (majority opinion of Khaldi, J. and Khayat, J.). The Jewish attitude is described in Malchi, supra n. 1, at 126, But cf. Khoury v. Slavouski, cit., (Frumkin, J., complaining that specific performance cannot be enforced by the courts in some cases, and that therefore penalties are better).

134 Hammad v. Barlassina, (1936) 3 P.L.R. 178. See also Khoury v. Slavouski, ibid.

135 Just as they were unaffected by the 1932 Privy Council decision Chedid v. Tenenbaum, supra n. 93, at 418. See Malchi, supra n. 1, at 113–14. Indeed, as far as I can tell, both Chief Justice McDonnell and Judge Baker ignored Faruqi I. The case was decided in September 1935. In January 1936, Baker, Judge said in Zarrub v. Abyad, (1936) 3 P.L.R. 14Google Scholar that since there was no Ottoman law dealing with the point before him, “we may also call to our aid the provisions of Article 46”. (emphasis added). Judge Baker did not mention Faruqi I, and he seems to have used instead the old, Yared v. Khoury, supra n. 90 approach. In a May 1936 contract case, McDonnell used English law but did not refer to Article 46. See Rock v. Jaffa Union, (1936) 3 P.L.R. 90.

136 Hammad v. Barlassina, supra n. 134.

137 See Shaheen v. Jaradeh, (1937) 4 P.L.R. 15; Elias v. Elias, (1937) 4 P.L.R. 136.

138 Palwoodma v. Majdalani, supra n. 122, at 281. In this case Manning expressed a somewhat negative attitude toward the Mejelle, quoting a section of the Mejelle dealing with a contract to pull out a tooth, and saying “the case of the toothache has always struck me as one of those flashes of humor which occasionally illuminate the pages of the Mejelle”. Id., at 279. See also P. Dikstein, “Atzma'ut Medinit Ve'atzma'ut Mishpatit [Political and Legal Independence]”, supra n. 122, at 112; Ya'akov Meron, “The Mejelle Tested by its Application”, supra n. 122; Eisenman, supra n. 1, at 132–33 (discussing the Palwoodma decision).

139 Faruqi II, at 338.

140 Palestine Mercantile Bank v. Fryman, supra n. 4, at 162. This was a reversal of his position in the Palwoodma case.

141 Id., at 162, 163.

142 Id., at 163.

143 Id., at 163–64.

144 See Blumenfeld v. Imperial Chemical Industries, (1937) 4 P.L.R. 228, at 234, 237–38; Jarad v. Attorney General, (1938) 5 P.L.R. 111, at 113–14; Gaber v. Migdal Insurance Co. Ltd., (1938) 5 P.L.R. 187, at 193. See also Malchi, supra n. 1, at 137.

145 Abu Ghazaleh v. Maccabi Cooperative Society, (1937) 4 P.L.R. 364, at 365.

146 Akel v. Alayyan, supra n. 126, at 324–25. Trusted was in the minority in this case. The two other judges were both Arab and they both affirmed Manning's decision in Faruqi II, holding that the distinction between penalties and liquidated damages existed in the law of Palestine. This was one of the rare (if not the only) case where the two native judges were in a majority. According to Frumkin, Trusted was “personally hurt when others opposed his opinions”. Frumkin, supra n. 1, at 352. It therefore may be possible that Trusted purposely manipulated the composition of the panel in order to express his opinion without upsetting the holding of Faruqi II.

147 Tedeschi, supra n. 1, at 195.

148 See Cotran v. Cotran, (1938) 5 P.L.R. 577 at 590; Attorney General v. Blam, (1939) 6 P.L.R. 247, at 251–52. In another sense, however, Trusted's interpretation was wider. Manning's (final) position was that Article 46 was inapplicable in cases of ambiguity in local law. Trusted thought that the Article was applicable in such cases. See Akel v. Zeidan, (1938) 5 P.L.R. 319, at 325; Attorney General v. Blam, ibid. See also Cotran v. Cotran, ibid.

One should note that although Trusted stuck to a narrow interpretation of Article 46, he did implicitly or inadvertently import English law. See e. g. George Jacobovitz Building Ltd. v. Jawitz, (1940) 7 P.L.R. 244 (discussing an action for libel without dealing with the question whether the right to such an action exist in the law of Palestine). In one of his cases, Trusted also mentioned the possibility of introducing the English law of torts by way of Article 46. In practice, however, he was opposed to such a use of the Article. As the Attorney General of Cyprus, Trusted was involved in the drafting of the Cypriot Civil Wrongs Ordinance, in which he attempted to “simplify” English rules so “they may be intelligible and of practical utility to a community unversed in the English common law”. In two letters he sent to the High Commissioner in 1940, he advocated the enactment of that Ordinance in Palestine, and expressed reservations about the importation of the English Common law. See Attorney General v. Blam, loc. cit.; Tedeschi & Rosenthal, supra n. 5, at v.

149 Kahn v. Spinney's Ltd. (1937) 4 P.L.R. 1. In some Palestine Supreme Court cases, the judge who wrote the opinion was not identified. But even if Frumkin wrote the opinion, the fact that Copland concurred at a time when the two other British judges on the Court seemed keen to introduce English law, testifies to Copland's conservatism.

150 See Paz v. Zeidan, supra n. 130, at 371 (discussing penalties and saying that “whatever the opinion of individual judges [i.e. Trusted in Akel] may be … and I am far from saying that I disagree with them — every Court is bound to follow these judgments [which introduced the distinction]). See also Sherman v. Danovitz, supra n. 5, at 368 (“we now have, rightly or wrongly, the difference between a penalty and liquidated damages”. (emphasis added)); Khoury v. Slavouski, supra n. 130, at 381 (discussing specific performance).

151 Paz v. Zeidan, supra n. 130, at 372.

152 Sherman v. Danovitz, supra n. 5, at 368 (emphasis added). In Nijm v. Nijm, (1941) 8 P.L.R. 499, at 505 probably written by Copland, he said, in an (almost) exact repetition of the Sherman decision, that “For many years the Courts of this country seemed to show great reluctance in applying the provisions of Article 46 of the Order in Council, which seems unfortunate, but that reluctance has now been overcome”. (emphasis added).

The reason for the Copland's seeming fickleness may be that the Sherman case dealt with Common law rules, while Nijm dealt with equitable ones. Another pro English law statement by Copland is found in Seligman v. Attorney General, supra n. 121 (“the Ottoman law of evidence was notoriously deficient and antiquated and in practice for many years the Courts of this country … have applied the provisions of the English Common law … This in my opinion is the correct procedure, and justified by the provisions of Art. 46”.) Since English judges saw no obstacle to importing English rules of evidence, this does not seem to me a real exception to Copland's general attitude.

153 See supra n. 5. Even some of Copland's “practical” arguments were a reflection of traditional colonial policy. Thus Copland said that “It is not right and possible in my opinion to create a liability which may affect a large proportion of the population when that population has no means of knowing what the extent of that liability is. It is a fundamental principle that people must have an opportunity of knowing what the law is”, (id., at 368).

These words echo Warren Hastings, who said in 1774, in response to the suggestion that as a means of civilizing the natives, English law should replace Indian law, that “It would be a grievance to deprive the people of the protection of their own laws, but it would be a wanton tyranny to require their obedience to other of which they have no possible means of acquiring a knowledge”, (quoted in Elias, supra n. 43, at 80). See also Cohn, Bernard S., “Law in the Colonial State in India”, in Starr, June & Collier, Jane F., eds., History and Power in the Study of Law: New Directions in Legal Anthropology (1989) 131Google Scholar, 141.

154 See Municipal Corporation of Jerusalem v. Cattan, (1938) 5 P.L.R. 488, at 497.1 was referred to this remark by Yoram Shachar (but perhaps one cannot read too much into these words. Copland was repeating Manning's words in a 1936 case and in any event may have referred only to the case law of the Supreme Court of Palestine).

155 This is true even if we take into account one of the arguments he gave in Sherman against the introduction of the English Law of Torts. “The English Law of Torts” he said, “has been largely amended by statute — if the Courts of this country were therefore to enforce it, we should have to apply only the Common Law, since we cannot apply any statutory amendments — in other words we should apply, in its original customary form, a law which has been found unsatisfactory in certain respects in England”. Sherman, at 368. Note that Copland does not say in this passage that contemporary English law was inferior.

156 Of course, this was not the only factor. Certainly part of the difference may be attributed to differing degrees of knowledge of the law of Palestine. The Lords of the Privy Council and Judge Manning were not very familiar with Palestine or its laws. In Manning's earlier cases one finds expressions testifying to his unfamiliarity and puzzlement with the legal system of the country. See Palwoodma v. Majdalani, supra n. 122, at 274, 276–77; Faruqi II, at 334. Trusted, and certainly Copland, were more familiar with Ottoman law, and thus more reluctant to turn to English law. Another probable source of difference may be found in differing notions of judicial creativity, Copland being the most conservative, Manning being the least.

157 Frumkin, supra n. 19, at 354–55.

158 Frumkin, id., at 463.

159 “Shinuyim Bamangenon Hamishpati [Changes in the Legal Service]”, (Apr. 1944) HaPraklit, 3–4.

160 “Shinuyim Bamangenon Hamishpati [Changes in the Legal Service]”, ibid., at 4; Vaad Adat Ashkenazim Be'it Din Hassidim v. District Commissioner Jerusalem, (1942) 9 P.L.R. 715, at 727; Olles v. Superintendent of Detention Camp Mazra'a, near Acre, (1942) 9 P.L.R. 126, at 136; Schwarz v. Hoiser, (1943) 10 P.L.R. 170; Halaby v. Assessing Officer Lydda District, (1943) 10 P.L.R. 678, at 690. However, his empathie capabilities were sometimes quite restricted. See e.g., Marx v. Commissioner of Migration, (1942) 9 P.L.R. 230, at 231 (a case of a refugee from Nazi Germany, in which Gordon-Smith and Copland said that “it may be a hard and harsh case on the petitioner, but with this we are not concerned”.)

161 See Kirk-Greene, supra n. 98, at 108.

162 See e. g. Rokach v. District Commissioner, (1942) 9 P.L.R. 191, at 201; Baddour v. Chief Execution Officer, (1943) 10 P.L.R. 569; Zwi v. Assessing Officer Haifa, (1944) 11 P.L.R. 160.

163 See Et Tibi v. Dasuki, (1941) 8 P.L.R. 563 (Rose, J. and Edwards, J., distinguishing (or overruling) Trusted's opinion in Blumenfeld v. Imperial Chemical Industries, supra n. 144 and Gaber v. Migdal Insurance Company, supra n. 144; Dasuki v. Et Tibi, (1945) 12 P.L.R. 265. See also Pines v. Pines, (1942) 9 P.L.R. 439; Zacharia v. Khabbaz, (1944) 11 P.L.R. 204, at 206.

164 Malchi, supra n. 1, at 15, 153.

165 See e.g., Moyal v. Karawassarsky, (1940) 7 P.L.R. 482; General Manager, Palestine Railways v. Matalon, (1940) 7 P.L.R. 179; Agrest v. Fish, (1944) S. C. J. 139; Farkas v. Spiegler, (1944) 11 P.L.R. 586, at 588; Fischer v. Geffen, (1941) 8 P.L.R. 197.

166 See Kornstein v. Flaster, (1943) 10 P.L.R. 315; Abu Khadra v. Abu Khadra, (1943) 10 P.L.R. 371.

167 Jarrous v. Adas, (1941) 9 P.L.R. 707, 708–9.

168 Gwirtzman v. Director of Medical Services, (1941) 8 P.L.R. 533, at 535. See also Olles v. Superintendent of Detention Camp Mazra'a, near Acre, supra n. 160.

169 Ideal Motion Pictures v. Assessing Officer Tel Aviv, (1942) 9 P.L.R. 481–82. See also Warner Bros. v. Assessing Officer, (1942) 9 P.L.R. 488.

170 Gesundheit v. Assessing Officer, Tel Aviv, (1944) 11 P.L.R. 265, at 269.

171 Halaby v. Assessing Officer Lydda District, (1943) 10 P.L.R. 342, at 346. The judges were unable to prevent the resort to English case law and in the end they gave in and routinely turned to English cases. See e.g., Leather Center Ltd. v. Assessing Officer Jerusalem, (1944) 11 P.L.R. 462; Consolidated Near East Co. v. Assessing Officer Haifa, (1944) 11 P.L.R. 229.

172 Messrs Kanzler & Co. v. Dr. Raises, (1942) 9 P.L.R. 115.

173 Khoury v. Khayat, (1940) 7 P.L.R. 191. See also Vadash v. Chief Executive Officer Tel Aviv, (1943) 10 P.L.R. 706. But see Khoury v. Khayat, (1943) 10 P.L.R. 271, at 280 (the decisions of the Supreme Court of Palestine are not “in themselves authorities to establish finally a rule of law contrary to English law”.)

174 See Attorney General v. Segal, (1943) A.L.R. 754, at 759; Segal v. Attorney General, (1944) 11 P.L.R. 101, at 108.

175 Among them were Judges Oliver Plunkett, J. H. M. de Comarmond and Judge Bernard Shaw, a nephew of George Bernard Shaw, who unfortunately, did not possess the literary talents of his namesake. See Bentwich, supra n. 19, at 209; Bentwich, supra n. 45, at 240.

176 Abdelhadi was ignored by the British judges. He did not understand English and often, when the translator ceased translating an intricate discussion between judge and lawyer, his colleagues on the bench did not bother to stop in order to enable the translator to translate the argument. See Frumkin, supra n. 19, at 495.

177 Bentwich, supra n. 45, at 210; Frumkin, supra n. 19, at 467; Kirk-Greene, supra n. 98, at 120. See also e.g., Attorney General v. Herskovitch, (1944) 11 P.L.R. 633, 635 (the Court should not follow wrong precedents, justice is preferable to adherence to precedents); Minassian v. His Beatitude Archbishop Mesrob Neshanian, (1944) 11 P.L.R. 191 (sensitivity to social and historical circumstances); Oskarn v. Zenobar, (1946) 13 P.L.R. 49 (applying a rule of civil procedure dealing with villages to a Jewish communal village, taking into account the communal organization); Abu Laban v. Abu Laban, (1944) 11 P.L.R. 550 (interpreting a certificate of partnership with a sensitivity to commercial conditions); Manufacturer's Association of Palestine v. Chairman and Members of an Arbitration Board, (1944) 11 P.L.R. 187 (rejecting the claim that an award of the arbitration board is ultra vires because it restricts the liberty of an employer to regulate the terms of labor contracts, since the nature of labor relations has changed in the twentieth century).

178 Bentwich, supra n. 19, at 166; Bentwich, supra n. 45, at 210–11. See also FitzGerald, William, “The Law in the Era of Reconstruction”, (April, 1944) HaPraklit, 8Google Scholar; “Kabalat Panim Lizkan Hashoftim, [Reception of the Chief Justice]”, (July, 1944) HaPraklit, 27; Weiss v. Assistant Commissioner, Haifa, (1944) 11 P.L.R. 337. The best illustration of his attitude is found in comparing Copland's cynical opinion in Karwassarsky v. Moyal, discussed supra a. 121, at 281, with FitzGerald's decision in Litwinsky v. Litwinsky, (1944) 11 P.L.R. 542, at 543, where FitzGerald accepted a very similar request, recognizing the fact that there is a political clash in Palestine.

179 FitzGerald, William, “The Law in the Era of Reconstruction”, (April, 1944) HaPraklit, 1.Google Scholar See also William FitzGerald, “Law in the Empire (1943?)” [a lecture given at the Jerusalem YMCA, published by Goldberg's Press, Jerusalem and found in the Library of Congress, Washington].

180 Since the speech is relatively unorganized, I have structured my summary differently than the speech. The speech is relatively short (8 pages), and in order not to encumber the text, I will not refer to specific page numbers.

181 Said, supra n. 7, at 37–38.

182 Another indication of the same phenomenon is found in a speech given by FitzGerald on the day of his appointment as Chief Justice. In that speech, FitzGerald talked about “Western civilization (i.e., the United States, the British Empire and poor France)” which, he said, was distinguished from other cultures by its adherence to the Law. He also said that “the Law is based on the assumption of equality of all men” which means that “anyone may come and not only request, but demand the rights which are derived from human dignity”. “Kabalat Panim Lizkan Hashoftim, [Reception of the Chief Justice]”, (July, 1944) HaPraklit, 26, 27.

183 Bheej v. Attorney General, (1944) 12 P.L.R. 7, at 8 (“deplorable as it may be, we must recognize the fact that some of the people of this territory have not yet reached the state of civilization where the dagger becomes the most abhorrent of all lethal weapons”.)

184 El Wazir v. Attorney General, (1947) 1947 S.C.J. 712.

185 Abu Jasser v. Attorney General, (1927) 2 Rotenberg 543. Article 188 of the Ottoman Penal Code which was still in force at that time, recognized as mitigating circumstances the fact that the murderer saw “his wife or one of his family … in the act of adultery” The Criminal Law of Palestine (Norman Bentwich Comp., 1928).

186 Abu Miriam v. Attorney General, (1941) 1941 S.C.J. (i) 128.

187 El Majdoub v. Attorney General, (1945) 13 P.L.R. 69; Kataf v. Attorney General, (1946) 13 P.L.R. 39, 40, 41; Atiyeh v. Attorney General, (1947) S.C.J. 729, 730. See also S. M., , “Tzedek Tiv'i Lefi Kne Mida Britiyim (Natural Justice as Conceived by British Standards]”, (1946) 3 HaPraklit 209Google Scholar, 210–11 (criticizing the use of the term “Natural Justice as conceived by British Standards” and saying that such customs as murder to preserve family honour could be changed only by “cultural progress”, not by the use of criminal law.)

188 See e.g., Markoff v. Homasi, (1945) 12 P.L.R. 272, at 278.

189 Rafel v. Rachamim, (1944) 11 P.L.R. 367, at 369. See also “Aviv” Aloof Nahagei v. Trauber, (1944) 11 P.L.R. 280, at 282 (Ottoman provisions dealing with “diligences and public coaches must be interpreted in the light of “progress by society” and are therefore applicable to taxi cabs, railways, motor cars, “and even now to commercial aeroplanes”.); Levy v. Klein, (1945) 12 P.L.R. 10 (refusing to apply Ottoman provisions of joint ownership to “modern built houses”); Hinsheimer, A., “Shofet Khadash — Mishpat Khadash [New Judge — New Law]”, (Dec, 1944) HaPraklit, 20Google Scholar (pointing to the novelty of FitzGerald's approach). See also Yifrakh, Shlomo, “Metzranut [Preemption]”, 2 HaPraklit, 236Google Scholar (describing the case law on the subject). Perhaps one should not exaggerate the novelty of FitzGerald's approach to preemption, since even Judge Copland held that the right of preemption was “incompatible with modern living conditions in civilized towns”. See Cohen v. Valero, (1938) Apelbaum 1, 338. FitzGerald's notion of progress was not limited to Ottoman law. One can find it in labor cases. See e.g., Manufacturer's Association of Palestine v. Chairman and Members of an Arbitration Board, supra n. 177 (rejecting the claim that an award of an arbitration board is ultra vires because it restricts the liberty of an employer to regulate the terms of labor contracts, since “in the forty fourth year of the twentieth century, it is late in the day to talk about the liberty of the employer to regulate the terms” of employment).

190 See e.g., Oskarn v. Zenobar, supra n. 177 (applying a rule of civil procedure dealing with villages to a Jewish communal village, taking into account the communal organization); Manufacturer's Association of Palestine v. Chairman and Members of an Arbitration Board, supra n. 177 (recognizing that the existence of Histadruth effects the nature of labor relations in the Jewish community). See also Rokach v. General Officer Commanding British Troops in Palestine and Transjordan, (1947) 14 P.L.R. 154 (recognizing the locus standi of the heads of the Jewish community in certain cases involving Jews); Litwinsky v. Litwinsky, supra n. 178, at 543 (declaring a policy of administrative separation, so that purely Jewish cases will be dealt with by the District Court in Tel Aviv and purely Arab ones in Jaffa).

191 Reference to “fundamental” rights or principles did appear in earlier cases (Gwirtzman v. Director of Medical Services, (supra n. 168, at 535) but FitzGerald used this notion more often than any other judge.

The conventional wisdom is that Constitutional rights appeared in Israeli legal discourse only in the 1950s. Although it is true that the Supreme Court of Palestine often abstractly recognized constitutional rights while rejecting the specific petition before it, still, it is important that in the process of discussing the petition, the Court sometimes did recognize the existence of certain constitutional rights.

192 Greiber v. Baumhall, (1945) 12 P.L.R. 212, at 216 (emphasis added). See also Albina v. El-Ama, (1945) 12 P.L.R. 217. In other cases FitzGerald stated that freedom of contract is “a fundamental keystone of British law” (and by implication, of the law of Palestine), or that the Court “as the long arm of the law” has a duty to protect “the liberty of the subject”. See National Bus Company v. Attorney General, (1945) 12 P.L.R. 321; Zabrovsky v. General Commanding Officer Palestine, (1945) 12 P.L.R. 556, at 557 (dismissing a habeas corpus petition but affirming the duty of the Court to protect “the liberty of the subject”); Zabrovsky v. General Commanding Officer, Palestine, (1946) 13 P.L.R. 616 (deciding on appeal that the Common law rules on habeas corpus were applicable to Palestine by virtue of Article 46 (while dismissing the appeal)); Funt v. Chief Secretary, (1946) 13 P.L.R. 594, at 596 (the Court as the “long arm of the law, with the power to “protect the liberty of the subject”.). The term “liberty of the subject”, taken from English case law, appeared earlier. See Nathan v. Inspector General of the Police and Prisons, (1941) 8 P.L.R. 363.

193 Kazak v. District Commissioner Haifa, (1947) 14 P.L.R. 87, 88 (rejecting a petition by an Anglo-Jewish resident of Haifa whose house was requisitioned but referring to the petitioner as a “citizen”.). Frumkin used the term “citizen” earlier, but of course, Frumkin was not British. See Sherman v. Danovitz, supra n. 5, at 371, 372 (mentioning “member of the public” and “the citizen”.)

194 See Tourgeman v. Chief Secretary, Government of Palestine, (1947) 14 P.L.R. 81, 84 (reference to the English Bill of Rights, Magna Carta etc.); Rosenblatt v. Registrar of Lands, Haifa (1947) P.L.R. 286 (a claim by the petitioner that restrictions on sale of land to non-Arabs, imposed by an Order-in-Council, offends against the fundamental right of every citizen to freely transfer his land and property. This argument was rejected by FitzGerald, but the rejection was based on the assumption that the people of Palestine enjoy the same fundamental rights as English citizens.)

One could argue that the turn to fundamental rights was a sign of desperation on part of the Jewish lawyers. That may be so, but one should remember that it would only be possible in a discursive climate in which fundamental rights were sometimes recognized.

195 Lewitt v. District Commissioner, Haifa, (1944) 11 P.L.R. 424 (Frumkin, J.)

196 Sakai v. District Commissioner, Galilee District, (1946) 13 P.L.R. 216, 218–19 (“The ordinary citizen's rights have been very seriously curtailed as a result of the Defence Regulations … he must often wonder what freedoms remain to him after this war which one understood was fought to establish the freedom of the subject. Because he is not a Government official, it does not follow that he belongs to a lower class of humanity … I cannot help feeling that requisitions of this nature increase the bitterness of feeling which undoubtedly exists amongst ordinary citizens against the Government and I do not think that feeling is entirely unjustified. I would express the hope that perhaps the Legal Department would carefully consider the advisability of defending such a use of the power in the future”.); Levy v. Klein, supra n. 189 (Frumkin, J., stating that the Court will use strict construction in “order to protect the liberty of the subject in disposing of his property”.). See also Salah v. Acting District Commissioner, Samaria District, (1946) 13 P.L.R. 317 (Shaw and de Comarmond, JJ., affirming a requisition order but “directing” the respondent to enquire whether a part of the requisitioned land could be released).

197 See Bamieh v. Ali, (1944) 11 P.L.R. 570, 572 (Rose J., arguing that FitzGerald's approach to preeemption would bar recourse to a remedy provided by the Law, which is “clearly not the duty of the Court”).

198 Dabit v. Attorney General, (1946) 13 P.L.R. 437, 440, 442. See also El Wazir v. Attorney General, supra n. 184 (FitzGerald, CJ., attempting, unconvincingly, to reconcile Edwards' approach with his); Szczupak v. Rapaport, (1944) 11 P.L.R. 252, 253 (Edwards and Frumkin JJ., refusing to refer to English Common law since the Mejelle applies); Lande v. Cohen, (1944) 1944 S.C.J. 364 (Edwards, J., claiming that the right provided by section 1818 of the Mejelle (oath) was not abrogated by the Civil Procedure Ordinance, 1938); Avinoar v. Chief Execution Officer, Jerusalem, (1944) 11 P.L.R. 249 (Plunkett, J., refusing to turn to English law in a case dealing with the Ottoman law of execution); Poisek v. Davidovitz, (1945) 12 P.L.R. 326 (Edwards, J., refusing to “analyze or even discuss” English case law in interpreting rent restriction legislation, because “it would only make confusion worse”.); Ben Ya'acov v. Forer, (1945) 1945 S.C.J. 628 (Shaw J., upholding a previous case which held that private trusts do not exist in Palestine).

199 See Ayoubi v. Arab Bank Ltd., (1945) 12 P.L.R. 42, 45 (Edwards J., recognizing that the doctrine of quantum meruit may be applied in Palestine “by the combined effect of Articles 568 and 564 Mejelle and Article 46”.). But see Agrest v. Fish, (1944) 1944 S. C. J. 139 (Plunkett, J. implicitly importing quantum meruit actions into the law of Palestine without even referring to Ottoman law). See also Nereo Near East Road Construction Co. Ltd. v. Lejwand, (1946) 13 P.L.R. 482 (Edwards and Curry, JJ., refusing to contemplate the appropriateness of importing an action of account, since such an action has been tacitly recognized by the Courts for 23 years).

200 El Dabbah v. Attorney General of Palestine, (1944) 11 P.L.R. 237, at 246; Nasser v. Attorney General, (1944) 11 P:L.R. 445, at 447; Rujub v. Attorney General, (1945) 12 P.L.R. 89, at 94 (FitzGerald, CJ., attempting to reconcile the Dabbah and Nasser decisions). See also “Law in the Era of Reconstruction”, supra n. 204 at 6.

201 Sherman v. Danovitz, supra n. 5, at 367–68.

202 London Society for Promoting Christianity among the Jews v. Orr, supra n. 11, at 223.

203 The reference to a “progressive Arab population” was not merely rhetorical, for the Arab community in Palestine was undergoing a process of change. Although the majority of the Arab population was still rural and uneducated, the social structure of the Arab community had changed. The land-owning class had disappeared, an Arab middle class was being formed, and a process of urbanization was underway. Compare Royal Institute of International Affairs, Great Britain and Palestine 1915–1939: (Information Department Papers No. 20A, (1939) 26 with Royal Institute of International Affairs, Great Britain and Palestine 1915–1945: Information Department Papers No. 20, (1945) 30, 33. See also Reuveni, supra n. 18, at 136, n. 43.

204 Orr v. London Society for Promoting Christianity among the Jews, supra n. 9, at 16 (Jerusalem District Court).

205 See also Tedeschi & Rosenthal, supra n. 5, at vi (stating that the British administration in 1940s Palestine preferred local legislation to using Article 46 because the use of the Article was seen as giving an advantage to the Jewish community, which, it was assumed, had better access to the English Common law.)

206 Jewish lawyers were insulted by Copland's decision, because they saw it as lumping together “progressive Hebrew Palestine” and the “backward” Arabs. The result of the Orr decision, though not its reasoning, was (more or less) praised. See Bendix, L., “Al Hagormim Ha'iratzyonalim Bemakhshavat Hashofet [On the Irrational Factors in Judicial Thought]”, (Oct. 1944) HaPraklit 3Google Scholar; Polonsky, A., “Nezikin Bli Khok Nezikin [Torts without a Tort Ordinance)”, (1947) 4 HaPraklit 182.Google Scholar