3 Colonialism, Nationalism and
Legal Education: The Case of
Mandatory Palestine
ASSAF LIKHOVSKI*
Legal education is political. The way in which law students are taught what
is “Law” and what is not, the description of how “Law” relates to “Society”
(as well as the definition of “Society”), the description of the role of lawyers
in society, all serve political powers and political interests.1
This article examines the interaction between politics and legal education in one specific historical context, that of Mandatory Palestine in the
first half of the twentieth century. Mandatory Palestine was one of the few
British territories in which there was a formal system of legal education,
and the only territory administered by the British Colonial Office in which
nationalists set up a law school of their own.2 Legal education at the British
and at the nationalist law schools differed radically.
The British law school, which was called the Jerusalem Law Classes,
was a vocational school designed to train the legal technicians needed to
assist the British in running the legal system of Palestine. Law was conceived at this law school as a practical, autonomous and neutral subject.
Formalist approaches to the study of law dominated the curriculum, and
students at the school were taught that law need not be created by the
society it served and that English law could easily be transplanted into the
legal system of Mandatory Palestine.
The nationalist law school, which was called the Tel Aviv School of
Law and Economics, was established by Zionist lawyers. It was meant to
be an academic institution that would train not only the lawyers but also the
legal scholars and political leaders of the future Jewish State. The founders
*
Research for this article was made possible by a Harvard Law School/Mark DeWolfe
Howe research grant and a British Council research grant. Menachem Elon, Tamar
Frankel, Ron Harris, David Levinson, Shoshana Noy, Khalil Silwani and Savithri
Vijayarathnam all assisted me in various ways in the course of my research. I would like
to thank the participants of the Israeli legal history conference for their comments. A
short version of this article was presented at the 1997 British Legal History Conference.
75
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The History of Law in a Multi-Cultural Society
of the School, who were inspired by Romantic German theories of law,
conceived law as an organic creation of the national community. They
sought to teach law in its social and historical context, and argued against
the excessive importation of English norms and procedures.
The vocational-technical-autonomous, and the academic-theoreticalhistoric models of legal education, were, of course, not unique to Palestine.3 In the specific context of Mandatory Palestine, however, these two
models were used, respectively, to support the conflicting political aims of
British colonialism, on one hand, and Jewish nationalism, on the other.
British legal education in Palestine propagated an image of law as practical, technical and autonomous, because such an image legitimized British
colonial practices such as the dominance of British judges and legislators in
the legal system of Palestine, as well as the gradual Anglicization of the
law of Palestine. Jewish legal education, on the other hand, advocated an
academic, historical-sociological approach to the study and teaching of law,
because the particularistic assumptions embedded in such an approach
vindicated the nationalist agenda of some Jewish lawyers. These lawyers
believed that the Jews of Palestine should be granted political independence and that the future legal system of their State should be based on
revived Jewish law, rather than on imported English norms.
This article begins with a brief survey of the state of legal education in
the British Empire in the first part of the century. It then describes the
history and curriculum of the British law school in Palestine, the Jerusalem
Law Classes, and the history and curriculum of the nationalist law school,
the Tel Aviv School of Law and Economics. Finally, it examines how
British colonialism and Jewish nationalism in Palestine influenced the
shape of legal education in these two schools.
I. Legal Education in British Colonies in the First Half of the
Twentieth Century
Higher education, including formal legal education, was a rare phenomenon
in many parts of the British colonial Empire in the first part of the twentieth century. The Dominions, British India and even British-administered
Egypt had a developed system of higher education, including formal legal
education,4 but in the territories controlled by the British Colonial Office in
Asia and Africa, which by 1945 had a population of over 66 million people,
there were only four universities. These were the Royal University of
Colonialism, Nationalism and Legal Education 77
Malta, Ceylon University College, the University of Hong Kong, and the
Hebrew University of Jerusalem. All these universities were quite small,
none having more than a thousand students, and, except for the Hebrew
University, none of them carried out any original research.5 Of the four
universities, only the University of Malta had a law faculty. In Ceylon and
Palestine, independent law schools established by the British authorities
(the Colombo Law College and the Jerusalem Law Classes) provided
formal legal education. Thus at the end of the Second World War there
were only three law schools in the territories administered by the Colonial
Office.6
English legal education was traditionally conceived as vocational and
practical rather than as an academic pursuit.7 It is therefore not surprising
that the same approach influenced the nature of legal education at the colonial
law schools. All three schools were centers for professional training, and
none of them was involved in any research activity.8
The scarcity of colonial law schools can be better understood if one
looks at the requirements for admission to the colonial bars.9 In most
colonies, persons who were called to the bar in the United Kingdom could
be admitted to the local bar. In some places, such as Hong Kong, Cyprus
and many of the West Indian colonies, only such lawyers could practice.
Many African colonies, such as Kenya, Tanganyika or Northern Rhodesia,
also admitted persons who practiced before the Supreme Court in any
Dominion, or before a High Court in British India. Instruction in local law
was often deemed unnecessary, although there were a few colonies, like the
Straits Settlements, where lawyers were required to receive such instruction
before being admitted to the local bar. In Malta, Ceylon and Palestine, the
only territories with a formal system of legal education, persons who had
completed the course of studies in the local law school and spent a certain
period of time in the chambers of a local lawyer were admitted to the Bar.
However, even in these colonies, people who were admitted to the bar in
the United Kingdom were allowed to practice.10
Because a call to the English bar would in most cases automatically
qualify lawyers to practice in their native colony, many colonial students
studied law in England, took the English bar exams, and were admitted to
the English Bar.11 The British encouraged this situation because they
believed that “colonial students may derive real value from a fairly
prolonged contact with the buildings, libraries and traditions of which the
Inns of Court are the owners or repositories.”12 Indeed, a commonly held
view among English lawyers was that the chief object of having colonial
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law students in Britain was to “imbibe” them with the “glorious traditions
of the English Bar.” A more practical consideration was that because of the
expenses involved, only a limited number of colonial students were able to
travel to England, and so the number of lawyers in the colonies was kept in
check.13 However, by the end of the Second World War, British officials
came to realize that there were also disadvantages to forcing colonial
students to travel to England to study law, among them the disadvantage
that, as one official put it, law students from the colonies, “not infrequently
form connections legitimate or otherwise with European women which may
well be a lifelong source of trouble to both parties.”14 For this and other
reasons, the Commission on Higher Education in the Colonies,
recommended in 1945 that the weight of legal training be shifted from
England to the colonies, although this did not necessarily mean the
establishment of local law schools. In most colonies, the British authorities
believed, a period of articles in the office of a practicing lawyer would
serve as quite satisfactory legal training.15
II. The Jerusalem Law Classes
Palestine was part of the Ottoman Empire until the First World War.
During the Ottoman period, Palestine did not have a local law school and
Palestinian lawyers obtained their legal knowledge by practice or by
studying in law schools in other parts of the Ottoman Empire.16
In 1917, Palestine was occupied by British forces. The British retained
parts of Ottoman law, an amalgam of French-based and Islamic- based
codes, and also enacted a series of new, British-inspired, local ordinances.17
The legal system which applied these codes and ordinances was operated
mainly by British judges. These judges, many of whom did not speak the
local languages, Arabic and Hebrew, soon discovered that they had a need
for local intermediaries, people who would be able to converse with
litigants but who would also know how to behave in a British court – who
would speak only when spoken to, who could cross- examine a witness
according to British evidentiary procedures, and who would not be tainted
with the corrupt ethos of the previous Ottoman regime.18
The Attorney General of Palestine, Norman Bentwich, decided in
1920 to establish a local law school in Jerusalem, which was called the
“Law Classes.” The object of this school was to provide legal education for
“government officials,” to give “clerks and interpreters of the Courts . . .
Colonialism, Nationalism and Legal Education 79
some knowledge of law,” and also to prepare local students for admission
to the Palestine Bar.19 Perhaps one of the factors that led to the establishment of such a school in Palestine and not in other colonies was the intense
cultural competition with other imperial powers that Britain faced in
Palestine. Palestine was surrounded by Arab countries with western institutions of higher learning, such as the French Université Saint Joseph in
Beirut or the American University of Beirut. British officials did not want
young Palestinians to study law at these universities because they would be
exposed to non-British cultural influences. This was the reason behind an
early abortive plan to establish a British university in Palestine in the
1920s, which was justified by the argument that “whether it is in the
interest of Orientals or not,” higher education will be sought, and it is better
that Palestinians would seek it in a British institution and not in an
American or a French one.20 Such reasoning may also have played a part in
the establishment of the Law Classes.
The Law Classes were divided into two sections, a Jewish section and
an Arab one.21 The course of studies was divided into two parts. The lectures
of the first part were given in Hebrew or Arabic by Jewish and Arab
administrators, judges and lawyers. Students who passed an examination at
the end of this part were allowed to proceed and take the lectures of the
second part, given in English and dealing with more theoretical subjects,
like jurisprudence and legal history. These lectures were given by English
lawyers and judges.22
Let me now turn to the content of the legal education provided by the
Law Classes. This education can be described as practical rather than
academic, autonomous rather than sociological or historical and Englishcentered rather than local. I will now discuss each of these aspects.
A. Practical
British administrators viewed law as a “professional” or “technical” subject,23 and classified it as a “vocational” as opposed to an “educational”
pursuit (in contrast to studies in, for example, the Classics, languages,
mathematics or pure science).24 This tendency shaped the nature of studies
at the Jerusalem Law Classes. The founders of the Law Classes defined the
aim of the school as being “in the main, practical.”25 The school itself was
never perceived as an academic institution by British officials in Palestine
or in England. Although the course of study at the school was quite long
(three years, later extended to four years), the students were not awarded a
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university degree. They only received a diploma granting them an
exemption from taking the Palestine Bar examination, and allowing them to
practice law in Palestine after serving for two years as articled clerks of a
Palestinian lawyer.26
B. Autonomous
The Law Classes were created by Norman Bentwich, an Anglo-Jewish
lawyer who was the first Attorney General of Palestine. Bentwich, more
than many English lawyers at the time, was aware of the importance of
historical and sociological approaches to the study of law.27 This awareness, however, did not have an impact on the curriculum of the Law
Classes. The object of the Law Classes was to teach the law of Palestine,
not to give students a legal education in the history and philosophy of law,
nor to provide them with the social-science tools to understand law in its
social context.28 The majority of the courses given at the School were
formalist surveys of various areas of Palestinian law. The students were
required to take courses in political science and political economy, in
addition to a course in legal history,29 but there was no attempt to teach law
in the other courses from a historical or sociological perspective. Indeed,
the limited number of non-legal courses was reduced over the years and the
curriculum of the Law Classes gradually became even narrower in scope
and more practical. In the early 1920s students had to take a course in
political economy, but by the 1930s this course had been eliminated from
the curriculum. Similarly, during the 1940s, the courses in political science
and legal history were replaced by courses in drafting legal documents and
bookkeeping.30
The dominance of the internal-analytic-formalist approach to law was
also evident in the Jurisprudence textbook studied at the Law Classes. This
textbook, entitled An Introduction to the Study of Law: A Handbook for the
Use of Law Students in Egypt and Palestine,31 was written by Frederic
Goadby, an English comparative lawyer, who had studied law in England
and France, had lectured at the Royal School of Law in Egypt before the
First World War and was brought by Bentwich to Palestine after the First
World War to serve as the director of the Law Classes.32
Goadby, like Bentwich, was aware of the need for non-autonomous
approaches to the study of law.33 He opened his book with a discussion of
different theoretical approaches to law, among them the approach of the
German Historical School.34 However, Goadby then remarked that such an
Colonialism, Nationalism and Legal Education 81
approach was inappropriate for lawyers, because it could not tell them what
would be considered law by the courts.35 In addition, he argued that
historical or sociological theories of law could only describe customary
legal systems of primitive peoples, or religious systems that derive their
binding power from God. They did not work well if used to describe the
law of modern states.36 Goadby thus associated modernity with the
analytical approach, and accordingly, the rest of the book became an
Austinian discussion of law, using mainly English and Roman examples.37
C. English
Students at the Law Classes studied Ottoman codes (based on French and
Islamic law) and British-inspired Palestinian Ordinances, but a large
portion of the curriculum was devoted to the study of English fields of law
which were not in force in Palestine. For example, students at the Law
Classes studied contract and tort law twice. First, they studied the contract
and tort laws of Palestine, which were based on Islamic law and codified in
an Ottoman code called the Mejelle. Then they studied English contract and
tort law in a course called “Principles of the English Common Law.” When
students at the Law Classes studied constitutional law, two-thirds of the
course was devoted to the study of the English and Imperial constitu- tional
law rather than to the study of specific constitutional documents and
principles applicable to Palestine, a territory unlike most other British
colonial territories because it was administered under a League of Nations
mandate.38
The dominance of English law in the curriculum was implicitly
justified by teaching the students to view legal development through Henry
Maine’s evolutionary perspective. In the jurisprudence course, students
were taught that European law represented a higher stage of evolutionary
development, and that the reception of European law in the Levant had
only beneficial effects.39
Because English law dominated the curriculum of the Law Classes,
the study of “national” law (except for the Islamic part of Ottoman law)
was confined to two elective courses on religious law, one (on the Shari’a)
for Arab students, and another (on the Halachah) for the Jewish students.
This was done despite the fact that both Islamic and Jewish law played an
important part in the legal life of Palestine, not only because family matters
in Palestine were decided in religious courts which applied Islamic or
Jewish religious law, but also because a large number of civil disputes were
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settled by Islamic courts or by an autonomous system of Zionist courts
established by the Jews before the British conquest.40
English legal influence was dominant at the Law Classes, but not
totally so. Many of the Arab and Jewish lecturers at the Law Classes were
trained in the European Continental legal tradition,41 and because of their
background, Continental influences often infiltrated into the lectures. For
example, the textbook used in the Arab section of the criminal law course
was French,42 and the Hebrew lectures on civil procedure, which were
given by Moshe Smoira, a German-Jewish lawyer, were spiced with
examples taken from Roman and German law.43
Over time, however, Continental influences tended to disappear. In the
1920s, for example, students studied a course on “European civil law”
where they were taught both English and French law; but by the 1930s, the
course was changed to the “Principles of English Common Law,” and the
French part was dropped.44 In the 1920s, students were encouraged to
consult both English and French textbooks, but by the 1930s, only English
textbooks were mentioned by lecturers.45
III. The Tel Aviv School of Law and Economics
Palestine was not only one of the few British colonial territories which had
a law school, it was also one of the few places in the British Empire where
legal scholars established a nationalist law school.46 The School of Law and
Economics in Tel Aviv was created by legal scholars associated with the
movement for the revival of Jewish law. This movement, inspired by
German Romantic conceptions of cultural nationalism, called for the
creation of a national legal system for the Jews in Palestine, a system that
would be based on the norms and procedures found in Jewish law.47
The revivers were interested in legal education. As early as 1918, they
proposed that a Jewish law school would be established in Palestine. They
expected the Hebrew University, founded in 1925, to carry out this task,
and when the leaders of the University declined to do so, they harshly
criticized them.48
During the 1920s and early 1930s, the revivers put forward a number
of proposals for the creation of a Jewish law school in Palestine, none of
which materialized.49 In the middle of the 1930s, however, conditions
proved ripe, as Jewish students and professors fleeing eastern European
anti-Semitism and central European fascism flocked to Palestine.50
Colonialism, Nationalism and Legal Education 83
In 1934, the revivers convened a “World Conference of Jewish Law.”
Following the conference, a group of participants resolved to establish a
“School of Law and Economics” in Tel Aviv.51 The school, which accepted
its first students in 1935, consisted at first of a department of law and a
department of economics. Later, these departments were augmented by a
business school, a political science department and an accountancy
institute.52 The School published a number of books on legal and economic
subjects, and (for a short while) even published an academic journal on law
and economics.
Lecturers at the Jerusalem Law Classes were mainly administrators or
lawyers, but about a third of the 35 teachers at the Tel Aviv School were
former scholars or professors in European universities.53 Since most of the
law lecturers at the school were educated in the Continental legal tradition,
Continental notions were far more influential at Tel Aviv.54
Jewish legal nationalism inspired the founders of the School,55 and
nationalist conceptions of knowledge influenced its aims. The study of law
and economics, declared its founders, was different from the study of
technology, the natural sciences or mathematics. Law and economics in
Palestine had to be studied with the specific social context of Palestine in
mind, not by simply importing European knowledge.56 The Tel Aviv School
was to serve as an “academic tool for the revival of Jewish law, and the
creation of ‘Hebrew’ economics and politics.” It was to be a center for
research of the legal history of the Jewish people and the history of its
economic and political life. It was established to promote “Hebrew science”
or “Hebrew knowledge.” The particularistic nature of education in this
school meant that even its economics courses were to be “imbued with a
special Hebrew idea, [and] clothed in appropriate national attire”.57
The school would thus serve as a model for a new type of legal
education which would be different both from the western education
received by many Jewish lawyers who immigrated to Palestine and also
different from the “colonial type legal education given by the Jerusalem
law classes.”58 It was to be an education that would combine the study of
local law with the study of Jewish law and thus create nationalist lawyers
who would be able to counter the British tendency to Anglicize the law of
Palestine.59
In view of these nationalist goals, it is not surprising that the School
did not receive any support or recognition from the British authorities in
Palestine, who feared that the school “would be a center of radical anti
British sentiments”.60 Its graduates were unable to take the Palestine Bar
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exams, and had to complete their studies abroad, in French or Italian
universities, before being admitted to the Palestine Bar.61
The school also received little support from official Zionist bodies or
the Hebrew University. Indeed, throughout its history, Jewish and later
Israeli government officials, lawyers and professors, questioned its academic
credentials and refused to view its graduates as equal to the graduates of the
less academically-oriented Jerusalem Law Classes.62
The founders of the school regarded the training of lawyers as a
secondary aim. More important aims were to provide the students “with a
complete, university-level education in the social sciences, affairs of state,
law, economics and commerce,” to train future Jewish political and business
leaders, and to advance the scientific research of law and the social
sciences.63 Because the training of lawyers was only a subsidiary aim, the
curriculum was far more academically oriented than that of the Jerusalem
Law Classes. Law students were required to take courses on the history of
Jewish law, on legal history, Roman law, comparative law, colonial policy,
and one or two courses in philosophy. They were also required to take a
number of social-science courses, such as political economy, sociology,
“colonial criminology” and statistics. The legal courses they took were also
more socially oriented. For example, the students at Tel Aviv took courses
on labor or administrative law, courses which were not offered at the
Jerusalem Law Classes.64
IV. The Effect of Colonialism and Nationalism on Legal Education in
Palestine
The Jerusalem and Tel Aviv law schools represented two different
conceptions of legal education. The “Colonialist” conception of legal
education at the Jerusalem Law Classes conceived legal education as a way
of producing low-ranking civil servants and legal technicians who would
assist the British government in the running of Palestine. The curriculum of
the Law Classes was therefore practical and formalist, rather than academic
and theoretically oriented. Because the British wanted the graduates of the
Law Classes to assist the process of Anglicization of the law of Palestine,
English law dominated the curriculum. Students were taught that European
law generally and English law in particular represented the pinnacle of
legal evolution.
Colonialism, Nationalism and Legal Education 85
“Nationalist” legal education at Tel Aviv, on the other hand, was
meant to produce a cadre of committed Jewish politicians and scholars who
would revive Jewish culture in Palestine, and present a cultural alternative
to English culture. Legal education was therefore academic, theoretical and
socially and historically oriented.65
Why did the British choose one model of legal education and the
Jewish nationalists another? One possible explanation is the influence of
the Anglo-American and the Continental legal traditions. Legal education
in the Anglo-American world is more practical. Continental legal education,
on the other hand, perhaps because it was geared to produce judges and
legal scholars rather than lawyers, is more theoretical.66 One could argue
that the Jewish lawyers who founded the Tel Aviv School of Law and
Economics were more concerned with legal theory than British officials,
because British officials were educated in the Anglo-American tradition
while the Jewish lawyers, who came from Central and Eastern Europe,
brought with them Continental conceptions of legal education.
This possible explanation is certainly one of the reasons for the
difference between the Jerusalem and Tel Aviv schools. However, it fails to
take into account the fact that the two figures who dominated the Law
Classes in its formative years, Norman Bentwich and Frederic Goadby,
were both fully aware of Continental legal traditions and the importance of
non-analytical conceptions of law.
One must therefore look for deeper reasons for the difference, and
these, I believe, are to be found in the different ideological context in which
these two schools functioned. As one Jewish lawyer in Palestine remarked,
British legal education in Palestine was a “colonial-type legal education”,67
uniquely adapted to legitimize British colonial legal policy in Palestine at
the time.
The vocational nature of legal education at the Jerusalem Law Classes,
as well as the lack of theoretical education, were due to the specific shape
of colonial legal systems. In Palestine, as in other British colonies,
important legal decisions were made by British legislators and judges, and
natives played only a minor and subsidiary role in the legal system, as
translators, low ranking judges and officials. If the natives were allowed to
play only such a role, there was no need to provide them with a wide
ranging and theoretical legal education.
In addition, one of the major justifications of European colonial
expansion was that Europeans were bringing the blessings of “Progress”
and “Civilization” (identified with European culture) to a primitive and
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The History of Law in a Multi-Cultural Society
stagnant non-European world. The imposition of European legal norms and
procedures on non-European societies was part of this civilizing mission of
Europe. The propagation of an image of law as neutral and transferable,
helped convince Palestinians that European legal norms and European legal
procedures could be adapted to local use, and that they should be adapted
because they did not represent unjustified intervention of the colonial
power in native practices but rather were part of a laudable attempt by the
colonizer to raise local norms to a higher level of cultural development.
Finally, the neutral and analytic conception of law on which the
Jerusalem Law Classes were based also had undemocratic undertones
which served the interests of colonial rulers. Law, according to such an
approach, was similar to technology.68 It was unrelated to politics and to
popular will. By implication, enlightened colonial rulers (i.e., the British in
Palestine) were justified in imposing their “technologically advanced” laws
on the native population, even if this population were not consulted about
it.
On the other hand, the theoretical, sociological-historical approach to
law used by the Tel Aviv school had subversive implications which suited
the need of Jewish nationalism at this, oppositional, phase in its history. A
conception of law which views legal systems as embedded in a particular
social and cultural context, vindicated demands for Jewish legal independence, and for the creation of a uniquely Jewish legal system in Palestine.
Colonialism and Nationalism thus effected the nature of legal
education in Mandatory Palestine; colonialist ideology propagating a
politically conservative conception of law, and nationalism (in its oppositional, pre-independence, phase) propagating a subversive approach.69 It is,
therefore, not surprising that after the establishment of the State of Israel,
when the Jews became the lawmakers and rulers in their new State and
there was no longer a need to subvert the existing legal system, Israeli legal
education and Israeli legal discourse generally jettisoned the “Nationalist”
model and adopted a model similar to the “Colonial,” British inspired one.70
The colonized of yesterday now became the new colonizer, what was
particular yesterday now became universal, and legal education in Israel
adapted itself accordingly.
Notes
1
The political implications of certain modes of legal education and discourse are
discussed, for example, in Robert W. Gordon, “Legal Thought and Legal Practice in
Colonialism, Nationalism and Legal Education 87
2
3
4
5
6
7
8
9
10
11
12
13
14
15
the Age of American Enterprise, 1870-1920,” in Professions and Professional
Ideologies in America, ed. G. L. Geison (Chapel Hill, Univ. of North Carolina Press,
1984), 70; Thomas Grey, “Langdell’s Orthodoxy,” U. Pitt. L. Rev. 45, 1 (1983): 33-34;
Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of
Legal Orthodoxy (New York: Oxford Univ. Press, 1992), 9-10, 16-17; Duncan
Kennedy, “Toward an Historical Understanding of Legal Consciousness: the Case of
Classical Legal Thought in America, 1850-1940,” Research in Law and Sociology 3
(1980): 3, 9; David Sugarman, “Legal Theory, the Common Law Mind and the Making
of the Textbook Tradition,” in Legal Theory and Common Law, ed. W. Twining
(Oxford: Blackwell, 1988), 26.
A brief history of legal education in Mandatory Palestine can be found in Gavriel
Strasman, Wearing the Robes: A History of the Legal Profession until 1962 (Tel Aviv:
The Israeli Bar Press, 1985), 67-74 (Hebrew). See also Asher D. Grunis, “Legal
Education in Israel: The Experience of the Tel Aviv Law School,” Journal of Legal
Education 27 (1975): 203.
See, generally, Martin Lyon Levine, introduction to International Library of Essays in
Law and Legal Theory: Legal Education, ed. M. L. Levine (Aldershot: Dartmouth,
1993), xiii-xiv. See also William Twining, “Pericles and the Plumber,” Law Quarterly
Review 83, 396 (1967); Lawrence Friedman, “Law and Social Change: Culture,
Nationality and Identity,” in Collected Courses of the Academy of European Law (The
Hague: Kluwer: 1995), vol. 4, bk. 2, 217-19, 246-49 (discussing the relationship
between autonomous and socially-embedded conceptions of law).
On the system of legal education in India, see Public Record Office, London (hereafter
cited as PRO), Colonial Office (hereafter cited as CO) 958/1, serial no. 84, “Evidence
of Lord Hailey”; PRO, CO 958/2, “Report on Higher Education in India, January
1944”.
See PRO, CO 958/1, “Minutes of the first meeting of the Commission on Higher
Education in the Colonies, 21 September 1943”, 1; PRO, CO 958/1, serial no. 25,
“Draft letter to the autonomous universities”; PRO, CO 958/3, “Report of the
Commission on Higher Education in the Colonies, June 1945” (Cmd. 6647), 78.
See PRO, CO 958/1, “Minutes of the first meeting,” 1; PRO, CO 958/3, “Report of the
Commission,” 78.
See, e.g., A. H. Manchester, A Modern Legal History of England and Wales, 17501950 (London: Butterworths, 1980), 54-66.
PRO, CO 958/1, serial no. 25, “Draft letter to the autonomous universities”.
The legal systems of most colonies, with the notable exception of Malta and Ceylon,
did not adopt the English distinction between barristers and solicitors.
PRO, CO 958/3, “Report of the Commission,” 76-78.
In 1937, 43 of the 466 persons called to the English Bar came from the Colonies. In
1943, 82 of the 358 persons called to the English Bar came for the Colonies, ibid., 79.
PRO, CO 958/3, “Report of the Commission,” 80.
PRO, CO 985/2, serial no. 111, “Oral evidence of W. Cleveland-Stevens, 30 March
1944,” 8A, 9; PRO, CO 985/2, serial no. 107, “Minutes of the 14th meeting of the
commission, 20 April 1944,” 2-3.
PRO, CO 958/2, serial no. 102, “Colonial Office Circular, 22 January 1944,” Annex,
Education in Law in the Colonies, 7.
PRO, CO 958/2, “Education in Law in the Colonies,” 7.
88
16
17
18
19
20
21
The History of Law in a Multi-Cultural Society
Israel State Archives, Jerusalem (hereafter cited as SA), Record Group 3, Legal
Secretary (hereafter cited as LS) 194/23 II, “Note on the Jerusalem Law Classes”; SA,
Record Group 3, Chief Secretary 256, “Law Classes in Jerusalem, 5 October 1920”.
See generally, Daniel Friedman, “The Effect of Foreign Law on the Law of Israel,”
Israel Law Review 10 (1975): 192; Daniel Friedman, “Infusion of the Common Law
into the Legal System of Israel,” Israel Law Review 10 (1975): 324; Robert H.
Eisenmann, Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat
and Shari’a in the British Mandate and the Jewish State (London: E. J. Brill, 1978);
Assaf Likhovski, “Colonial Discourse and the Anglicization of the Law of Mandatory
Palestine,” Israel Law Review 24 (1995): 291-359.
See Edward Keith-Roach, Pasha of Jerusalem: Memoirs of a District Commissioner
under the British Mandate, ed. P. Eedle (London: Radcliffe Press, 1994), 85. See also
Gauri Viswanathan, Masks of Conquest: Literary Study and British Rule in India (New
York: Columbia Univ. Press, 1989), 91-93 (discussing the British use of legal
education in India as a method of training incorruptible Indian civil servants).
See Central Zionist Archives, Jerusalem (hereafter cited as CZA), A 255/706, “Herbert
Samuel, Speech at the Law Classes, 1924,” 2.
See, generally, PRO, CO 733/155/6. See also PRO, CO 958/1, serial no. 30, “Marrs to
Asquith, 9 October 1943” (warning that the lack of universities in Palestine, Cyprus
and other colonies results in a “cultural pull away from English, whether Arabian or
Greek or French”); PRO, CO 958/2, serial no. 169, “The British Council’s Contribution to Higher Education in Palestine”. See also Jean-Jacques Waardenburg, Les
Universités dans le Monde Arabe Actuel (Paris: Mouton, 1966), 175-181, 222-23
(discussing the history of Western and Arab institutes of higher education in the
Levant).
SA, Record Group 3, “Minutes of the Law Council (Law Classes) Committee
(beginning 1 November 1944), Minutes of Meeting on 24 June 1946.” Although
lawyers are one of the professions most prone to espouse the cause of nationalism (see,
e.g., Benedict Anderson, Imagined Communities: Reflections on the Origins and
Spread of Nationalism, rev. ed. [London: Verso, 1991], 74), Jewish and Arab students
at the Law Classes proved remarkably free of nationalist fervor. Jewish student
attendance at what may be termed the most “nationalist” part of the curriculum, the
elective course in Jewish family law, was so low that the Council of Legal Studies
proposed to drop this subject all together. See CZA, A 212/31, “Kantorowicz to
Eisenstadt, 22 November 1929”; SA, Record Group 3, LS 194/23 II, “Minutes of a
Meeting of the Council of Legal Education, 24 November 1927,” 2. There was one
recorded incident of Zionist political protest at the school, when Jewish students
boycotted the lectures of Jacob De-Haan, an anti-Zionist orthodox Dutch Jew who
taught criminal law. See CZA, A 255/654, “Students of Secondary Schools to
Bentwich, 19 February 1922”. De-Haan was later assassinated by Zionist activists
because of his anti-nationalist views. The Arabs too sometimes protested, for example,
when the government printed diplomas whose Hebrew title read “Government of Eretz
Yisra’el” instead of “Government of Palestine.” See SA, Record Group 3, LS 194/23 II,
“Note on the Jerusalem Law Classes, Bentwich to F.A.S., 27 May 1927.” There were
also a number of incidents involving Jewish and Arab students. See, e.g., SA, Record
Group 3, “Minutes of the Law Council (Law Classes) Committee, Minutes of Meeting
of 20 February 1945,” 1-2.
Colonialism, Nationalism and Legal Education 89
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
SA, Record Group 3, LS 194/23 II, “Note on the Jerusalem Law Classes”; “Legal
Education and Legal Science: The Government of Palestine’s Law School,” HaMishpat Ha’ivri 1 (1927): 132 (Hebrew).
PRO, CO 958/1, serial no. 84, “Evidence of Lord Hailey,” 3.
PRO, CO 958/2, serial no. 148, “Jennings to Cox, 1941”.
Norman Bentwich, A Wanderer between Two Worlds (London: Kegan Paul, 1941),
128; “Regulations of the Jerusalem Law Classes,” Palestine Gazette, 25 May 1933,
section 1 (“objects”); SA, Chief Secretary 256, “Law Classes in Jerusalem, 5 October
1920.”
See, e.g., PRO, CO 958/2, serial no. 157, “Replies to circular,” 36; PRO, CO 958/3,
“Report of the Commission,” 6-10.
In the early 1920s, on being asked to draw up plans for the creation of a law faculty for
the Hebrew University of Jerusalem, plans which were never carried out, Bentwich
envisioned a faculty which would be more than a “professional school.” He proposed a
curriculum based on an historical approach to the study of law, requiring the study of
social sciences, such as sociology, as an integral part of legal education. See CZA, A
255/826, Norman Bentwich, “Proposal for a Legal Faculty at the Jerusalem University”
(undated). See also Gad Frumkin, The Way of a Judge in Jerusalem (Tel Aviv: Dvir,
1954), 231 (Hebrew). In his capacity as an Attorney General as well, Bentwich showed
his awareness of the existence of non-formalist approaches to the study of law. For
example, in 1927 he asked that the Government of Palestine purchase books by Roscoe
Pound and Oliver Wendell Holmes in addition to a textbook on Modern French Legal
Philosophy. See SA, Record Group 3, LS 194/23/II, “Bentwich to Treasurer, 21 June
1927.”
See Samuel Eisenstadt, “Teaching Jewish Law at the Government of Palestine’s Law
School,” Ha-Mishpat Ha’ivri 2 (1927): 209 (Hebrew).
CZA, A 215/173, “Examinations, 1923.”
CZA, A 417/49, “Shayowitz to Gibson, 8 December 1944”; SA, Record Group 3,
“Minutes of the Law Council (Law Classes) Committee, Minutes of Meeting, 17
October 1946,” 2; SA, Record Group 3, “Minutes of the Law Council (Law Classes)
Committee, Minutes of Meeting, 17 February 1945,” 1-2; SA, Record Group 3,
Attorney General 83/34, “Trusted to Jolowicz, 25 October 1936,” 2.
Frederic M. Goadby, An Introduction to the Study of Law: A Handbook for the Use of
Law Students in Egypt and Palestine, 3rd. ed. (London: Butterworth, 1921).
See, generally, SA, Record Group 3, LS 700/3/23.
See, e.g., Goadby, An Introduction, 4, referring to W. Jethro Brown, “The Purpose and
Method of a Law School,” Law Quarterly Review 78 (1902): 192.
Goadby, An Introduction, 50-52.
Ibid., 57.
Ibid., 55-58.
Ibid., 387.
See “Regulations of the Jerusalem Law Classes,” Palestine Gazette, 25 May 1933,
section 21, “Program of Courses”; “Regulations of the Jerusalem Law Classes,”
Palestine Gazette, 29 October 1936, “Program of Courses”; CZA, A 417/49, M. Eliash,
“Observations on Mr. Bentwich’s Proposals for Changes in the Law Classes”; SA,
Record Group 3, LS 194/23 II, “Bentwich to Shehaddy, 7 August 1925.”
90
39
40
41
42
43
44
45
46
47
48
49
The History of Law in a Multi-Cultural Society
Goadby, An Introduction, 63 (When military conquest “brings in its train the
conqueror’s law,” Goadby assured his students, “this may be a great blessing to the
vanquished race,” because of the conqueror’s “higher degree of civilization.”)
See Eisenstadt, “Teaching Jewish Law,” 209. On the Hebrew courts, see, generally,
Menachem Elon, Jewish Law: History, Source, Principles, trans. B. Auerbach and M.
J. Sykes (Philadelphia: Jewish Publication Society, 1994), 1588ff; Assaf Likhovski,
“The Invention of ‘Hebrew Law’ in Mandatory Palestine”, The American Journal of
Comparative Law 46 (1998): 339; Ronen Shamir, The Colonies of Law: Colonialism,
Zionism and Law in Early Mandate Palestine (Cambridge Studies in Law and Society,
Cambridge Univ. Press, 2000).
See, e.g., SA, Record Group 3, LS 194/23 II, “Goadby to Bentwich, 3 July 1932”;
Adnan Mohammed Abu-Ghazaleh, Arab Cultural Nationalism in Palestine during the
British Mandate (Beirut: Institute for Palestine Studies, 1973), 25.
See Council of Legal Studies, Jerusalem, Provisional Program of Studies and
Examination Regulations, 1922 (Jerusalem: Ha-Solel, 1922), 6-7.
See CZA, A 215/38/1; CZA, A 215/173, Moshe Smoira, “Lectures on Civil
Procedure,” 1924/5 (Hebrew).
Compare Council of Legal Studies, Jerusalem, Provisional Program of Studies (1922),
10-11; with Regulations of the Jerusalem Law Classes, “Program of Courses,”
Palestine Gazette, 29 October 1936.
Compare Council of Legal Studies, Jerusalem, Provisional Program of Studies, with
Regulations of the Jerusalem Law Classes, “Program of Courses.”
The school was established by Zionist Jews. There was no parallel Arab law school,
although in the 1930s, Arab nationalist activists planned to establish a law faculty as
part of a proposed Islamic University in Jerusalem. See SA, Record Group 65, George
Antonius archive, Al-mu'atamar al-islami al-`am, “Kitab bi-sha'an lajnat jami`at almasjid al-aksa al-islamiyyah,” (n.d.).
See, generally, Elon, Jewish Law, 1588ff: Likhovski, The Invention of Hebrew Law,
339; Shamir, The Colonies of Law.
See “On the History of the Hebrew Law Society,” Ha-Mishpat Ha’ivri 2 (1927): 220
(Hebrew); Paltiel Dickstein, “Review: Y. Pokrowski, History of Roman Law,” HaMishpat Ha’ivri 2 (1927): 209 (Hebrew); Paltiel Dickstein, “Review: HaMishpat,” HaMishpat Ha’ivri 3 (1927): 165, 166 (Hebrew); Paltiel Dickstein, “Review: Norman
Bentwich, Jerusalem – City of Peace,” Ha-Mishpat Ha’ivri 4 (1932/3): 175 (Hebrew);
Eisenstadt, “Teaching Jewish Law,” 211; S. Nehorai, “On Hebrew Legal Terms,” HaMishpat Ha’ivri 2 (1927): 217 (Hebrew). Although a law faculty was established at the
Hebrew University only after Israeli independence in 1948, Jewish law was studied at
the Hebrew University before 1948 as part of the program of Jewish studies. See
Daykan, The History of The Hebrew Court of Peace, 73 (Hebrew); Samuel Eisenstadt,
Tel Aviv University: A History of the School of Law and Economics (undated
manuscript) CZA, A 212/37, 4 (Hebrew); David N. Myers, Re-Inventing the Jewish
Past: European Jewish Intellectuals and the Zionist Return to History (New York:
Oxford Univ. Press, 1995), 87-89.
See, e.g., Elon, Jewish Law, 86, n. 44; Samuel Eisenstadt, “The Gates of Law,” HaMishpat Ha’ivri 4 (1927): 1 (Hebrew); Samuel Eisenstadt, Ein Mishpat (Jerusalem: HaMishpat, 1938), xxv (Hebrew).
Colonialism, Nationalism and Legal Education 91
50
51
52
53
54
55
56
57
58
59
60
61
62
See CZA, A 212/2, “Albert Einstein [on the Tel Aviv School],” in School of Law and
Economics Catalogue 1940/1; CZA, A 212/2, Meyer Dizengoff, “Palestine: A Center
for Higher Education,” School of Law and Economics: Tel Aviv (July, 1936), 3. The
impetus for the establishment of the Hebrew University was also partly due to
European anti-Semitism. See David Biale, “The Idea of a Jewish University,” in Like
All the Nations? The Life and Legacy of Judah L. Magnes, ed. W. L. Brinner and M.
Rischin (Albany: SUNY, 1987), 127, 128.
See, generally, CZA, A 212/37, Eisenstadt, Tel Aviv University, 11.
See “Academic Information,” Law and Economics 93 (1941); Yitzhak Orren, “50th
Anniversary of the Tel Aviv Law School Conference,” Tel Aviv Univ. Law Review 11
(1985/6): 5, 10, 13 (Hebrew).
See CZA, A 212/32, Paltiel Dickstein, “On the School of Law and Economics in Tel
Aviv,” 4. Lecturers at Tel Aviv studied or taught at London, Cambridge, Leeds, Bern,
Rome, Modena, Florence, Brussels, Amsterdam, Paris, Heidelberg, Berlin, Leipzig,
Vienna, Kaunas, Odessa, St. Petersburg and New York. See CZA, A 212/2, School of
Law and Economics Catalogue 1947/8 , 35-40; CZA A 212/2, School of Law and
Economics Catalogue 1937/8.
For example, students were required to take a course on the history of Roman law and
its principles, and in the jurisprudence course, the students were required to read a
textbook on the principles of the Civil law system, as well as Salmond’s Jurisprudence.
See CZA A 212/2, School of Law and Economics Catalogue 1947/8, 15.
Jewish nationalism was also the moving force behind the primary and secondary
Zionist education system in Palestine, established before the First World War. This
system retained its autonomy after the War. See generally, Rachel Elboim-Dror,
“Decision Foci of the Hebrew Education System in Eretz-Yisra’el,” Cathedra: For the
History of Eretz Israel and its Yishuv 23 (1982): 125 (Hebrew); Rachel Elboim-Dror,
“The British Mandate and Hebrew Education: Reactions to Cultural Colonialism,”
Cathedra: For the History of Eretz Israel and its Yishuv 75 (1995): 93 (Hebrew).
CZA, A 212/2, M. Laserson, “The Great Need,” School of Law and Economics (1935),
9 (Hebrew).
CZA, A 212/2, School of Law and Economics Catalogue 1947/8, 3; CZA, A 212/37,
Eisenstadt, Tel Aviv University, 11; CZA, A 212/2, School of Law and Economics: Tel
Aviv (1936); CZA, A 212/2, B. Ziv, “What do we want?” The School of Law and
Economics (1935, Hebrew); CZA, A 212/32, “To the Friends of the Hebrew Science in
the World” (1947).
CZA, A 212/2, School of Law and Economics Catalogue 1947/8, 3.
CZA, A 212/37, Eisenstadt, Tel Aviv University, 12.
Strasman, Wearing the Robes, 74. Another factor may have been British fears of Arab
reactions. See CZA, A 212/37, Eisenstadt, Tel Aviv University, 102.
In 1944, the administrators of the school reached an agreement with French authorities
that graduates of the school would be able to obtain a doctorate in law from the Beirut
branch of the University of Lyon. Later a similar arrangement was reached with the
University of Florence. These degrees enabled the graduates of the school to take the
Palestine bar exams for foreign-educated lawyers. See CZA, A 212/37, Eisenstadt, Tel
Aviv University, 12, 16-17, 72, 102; Orren, “50th Anniversary”, 10, 14.
See, e.g., CZA, A 212/32, Paltiel Dickstein, “On the School of Law and Economics in
Tel Aviv”, 4. The only official body that supported the school was the Tel Aviv
92
63
64
65
66
67
68
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The History of Law in a Multi-Cultural Society
municipality. See, generally, CZA, A 212/2, The School of Law and Economics
Catalogue 1948, 5; Samuel Eisenstadt, “State and Law,” in Zion shall be Redeemed by
Law (Jerusalem: Ha-Mishpat, 1967), 177, 182-3 (Hebrew); CZA, A 212/32, “Central
Committee [of the Israeli Bar] to Minister of Justice, 15 August 1948”; Rivkah
Katzenelson, “The Status of the Tel Aviv School of Law and Economics,” Ha-Dor 18
April 1952 (Hebrew); Strasman, Wearing the Robes, 74-82; Yoram Dinstein, “50th
Anniversary of the Tel Aviv Law School Conference,” Tel Aviv Univ. Law Review 11
(1985/6) 10 (Hebrew).
CZA, A 212/32, To the Friends of the Hebrew Science in the World (1947); Dickstein,
“On the School of Law and Economics in Tel Aviv,” 3.
CZA, A 212/32, To the Friends of the Hebrew Science in the World (1947); CZA, A
212/2, School of Law and Economics Catalogue 1937/8.
The dominance of nationalist rhetoric at Tel Aviv may also have been an attempt to
justify the school to its Zionist opponents. Zionist ideology at the time sought to
reverse the Jewish occupational pyramid, to create more Jewish manual workers
instead of more Jewish lawyers. The founders of the Tel Aviv School sought to justify
the establishment of their law school by arguing that training a nationalist cadre of
lawyers, economists and civil servants was as essential to the building of the future
Jewish state as the training of Jewish farmers and workers. See Dickstein, “On the
School of Law and Economics in Tel Aviv,” 1-2. Zionist anti-lawyer attitudes may
have been one of the reasons that the Hebrew University did not establish a law school
during the British Mandate. See PRO, CO 958/2, serial no. 140, “Evidence of Norman
Bentwich, 2 June 1944,” 6, 11.
See Richard Stith, “Can Practice Do Without Theory: Differing Answers in Western
Legal Education” Archiv für Rechts und Sozialphilosophie 80 (1994): 426 (arguing that
the difference between the practical nature of Anglo-American legal education and the
theoretical nature of Continental legal education is to be found in the fact that in the
Anglo-American world, law schools are geared to produce practitioners, whereas
Continental schools are geared to produce judges). The dichotomy between the AngloAmerican and Continental models of legal education is somewhat misleading because
the Anglo-American model was to some extent shaped by continental influences. See,
e.g., Enid Campbell, “German Influences in English Legal Education and
Jurisprudence in the 19th Century,” Univ. of Western Australia Annual Law Review 4
(1959): 357; Mathias Reimann, “Nineteenth Century German Legal Science,” Boston
College Law Review 31 (1990): 837.
See CZA, A 212/2, School of Law and Economics Catalogue 1947/8, 3.
On the “Law as technology” approach, see Friedman, “Law and Social Change,” 237,
246.
This does not mean, of course, that the analytical approach is always conservative and
the historical approach always subversive. See, e.g., Morton J. Horwitz, “The
Historical Contingency of the Role of History,” Yale Law Journal 90 (1981): 1057. A
concrete example of a place where these roles were indeed reversed is South Africa
during Apartheid. See Robert J. Gordon, “The White Man’s Burden: Ersatz Customary
Law and Internal Pacification in South Africa,” in Folk Law: Essays in the Theory and
Practice of Lex Non Scripta, ed. A. D. Rentlen and A. Dundes (New York: Garland,
1994), 367.
Colonialism, Nationalism and Legal Education 93
70
A brief survey of legal education in Israel in the 1950s is found in Asher D. Grunis,
“Legal Education in Israel: The Experience of the Tel Aviv Law School,” Journal of
Legal Education 27 (1975): 203. The nature of Israeli legal discourse (and its impact on
legal education) in the 1950s is discussed in Pnina Lahav, Judgement in Jerusalem:
Chief Justice Simon Agranat and the Zionist Century (Berkeley, CA: Univ. of
California Press, 1997), esp. ch. 4; Menachem Mautner, The Decline of Formalism and
the Rise of Values in Israeli Law (Tel Aviv: Ma’agalay Da’at, 1993, Hebrew);
Menachem Mautner, “Legal Education in Transition: The Israeli Law School –
Between the University, the Bar and the Courts,” Tel Aviv Univ. Studies in Law 14
(1997); Menachem Mautner, “Law and Culture in Israel: The 1950s and 1980s,” this
volume. A quantitative analysis of Israeli legal discourse in the 1950s is found in
Yoram Shachar, Ron Harris, and Meron Gross, “Citation Practices of the Supreme
Court: Quantitative Analyses,” Mishpatim 27 (1996): 119 (Hebrew).