4 The Dialectics of Zionism
and Democracy in the Law
of Mandatory Palestine
YORAM SHACHAR
Contemporary legal discourse in Israel is alive with argument and counterargument on the tension between two attributes of the State, namely that it
is Jewish and that it is Democratic.1 Much of the debate is carried on under
two tacit assumptions, namely that it, or at least its legal side, is both new
and internal (or in the international law jargon, “municipal”). As if it is the
business of contemporary Israelis, and their business alone, to define the
legal soul of the State through the dialectics of Zionism and Democracy. I
aim to show that the issue is neither new nor is it internal. The unresolved
duality between Jewishness and Democracy has been embedded in the
heart of the legal “granting” of Palestine by the international community
since the beginning of the century. Palestine has twice been “granted”,
once as a whole by the League of Nations in 1922 and again, in part, by the
United Nations in 1947. In both cases it has been granted for a purpose,
namely the establishment of a “national home” or State for Jews. In both
cases, it has been so granted on condition that basic tenets of democracy be
maintained.
The Council of the League of Nations mandated Palestine to His
Britannic Majesty in July 1922. In Article 2 of the Mandate, 2 His Majesty
was made responsible both for “placing the country under such political,
administrative and economic conditions as will secure the establishment of
the Jewish national home” and also for “safeguarding the civil and
religious rights of all the inhabitants of Palestine, regardless of race and
religion”. I shall call the former the “Jewish promise” and the latter the
“Democratic promise”. The Mandate speaks the language of both promises
interchangeably throughout its lengthy text.
For the “Jewish promise”, it speaks of recognizing the Zionist organization as a “Jewish Agency” for the purpose of “co-operating with the admini95
96
The History of Law in a Multi-Cultural Society
stration of Palestine” in carrying out the “establishment of the Jewish
national home” and safeguarding “the interests of the Jewish population in
Palestine”.3 No other organization is recognized in connection with the
interests of any other section in the population. The Mandate further calls
for the administration to “arrange with the Jewish agency” to “construct or
operate . . . any public works, services and utilities, and to develop any of
the natural resources of the country”. No such arrangement is called for in
connection with any other organization. And yet, Article 15 insists that
“No discrimination of any kind shall be made between the inhabitants of
Palestine on the ground of race, religion or language”. And again, the
Administration of Palestine is ordered by the League of Nations to
“facilitate Jewish immigration under suitable conditions and encourage . . .
close settlement by Jews on the land”, but “while ensuring that the rights
and position of other sections of the population are not prejudiced”.4
Thus was created the double-pronged dilemma that would serve as the
unstable basis for British rule over Palestine. For how can the dominance
of one ethnic group be actively imposed, indeed actively created, by a
political ruler, and a democratic posture be maintained? How can a
national home for Jews be established without infringing on the rights of
others? How can revolutionary settlers’ colonial dream be reconciled with
natives’ rights?
The irreconcilable dual promise was promptly internalized; within a
month, His Britannic Majesty published his Palestine Order in Council, 5
clearly intended as the colonial equivalent of a full-fledged constitution.
The preamble to the Order stated that:
whereas the Mandatory should be made responsible for [the] . . . establishment in Palestine of a national home for the Jewish people, it being clearly
understood that nothing should be done which might prejudice the civil and
religious rights of existing non-Jewish communities in Palestine.
And Article 18 stated:
No Ordinance shall be passed which shall be in any way repugnant to or
inconsistent with the provisions of the Mandate.
The “Mandatory” thus committed itself legally to the two-pronged
paradox, both to the international community and to the future subjects of
the Mandate. Indeed, like much else in the early days of the British
Dialectics of Zionism and Democracy
97
Mandate, this dual commitment may have been politically driven by a
combination of shrewd Imperialist manipulation and honest, though brief,
Messianic euphoria. Yet it is my claim that the tension between the
“Jewish promise” and the “Democratic promise” thus formally became the
Grundnorm for the legal system of all ensuing political entities in
Palestine, later the State of Israel. I say this because the State of Israel was
not formed in a void, but rather, in its own view, it was lawfully established as a continuum, part of the internationally-recognized transition of
political power from the British Mandate to a Jewish State, part of a wider
arrangement for the area. I shall return to this claim later, but for now
would concentrate on some of the realities of the dual-promise paradox in
the Mandate era itself.
The idea of powerful constitutional limitations on local legislative
power got to a spectacular start in 1925. In a decision strikingly similar in
tone and context to Marbury v. Madison,6 the then Chief Justice of
Palestine all but invalidated an Ordinance for the reason that it had the
effect of depriving certain local inhabitants of their private property rights.
Water was scarce in Jerusalem and the government coveted the (mainly
surplus) water of some privately owned springs in the village of Urtas,
some miles from the city. The High Commissioner, in his capacity as
primary legislator, passed an Ordinance enabling the government to take
the water and entrusted compensation to the discretion of a governmentappointed arbitrator. The owners appealed to the High Court of Justice 7
and Chief Justice Haycraft8 stated that the Ordinance was indeed
“repugnant to and inconsistent with the Order in Council, 1922, and with a
provision in Article 2 of the Mandate and is not a valid Ordinance”. He
further stated:
This [constitutional judicial control] is an extremely inconvenient conclusion
because it enables the best intentioned ordinances to be held invalid because
of some repugnancy to a document [the Mandate] not easy to construe and
throws the responsibility of deciding these matters on courts of law. However,
there it is in black and white and we have to give judgments in accordance
with the ordinary meaning of words.
I find particularly touching the “what’s a humble judge to do” tone of voice
adopted by Haycraft, thinly veiling both a clear sense of outrage at the
underlying injustice in the specific act of taking, and a Marshall-like
awakening realization of the gentle allure of judicial control strategically
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The History of Law in a Multi-Cultural Society
placed in the hands of an all-powerful Chief Justice dominating a (very
small) Supreme Court.9
Yet, Haycraft’s radical vision of judicial control in Palestine goes far
beyond either “black and white” or the “ordinary meaning of words”. The
command that “no Ordinance shall be passed which shall be in any way
repugnant to or inconsistent with the provisions of the Mandate” is indeed
“black and white”.10 The sanction – namely, (1) that it be declared void ab
initio (2) by a court of law (3) in Palestine (4) at a citizen’s request – is not.
Moreover, the radical content of Haycraft’s ruling lies not only in the link
between local legislation and the Mandate, but also, perhaps mainly, in his
reading of the scope of the content of the Mandate.
The demand by the League of Nations that “civil and religious rights”
be respected in Palestine could be easily limited in one, or both, of two
ways. If only the preamble to the Mandate is read, the promise of rights
could be interpreted as a mere limitation on the Jewish promise. It could
mean that Britain was “only” obliged to refrain from building a homeland
for the Jews at the expense of non-Jews. Moreover, “civil and religious
rights” could easily be reduced to a single right, namely the right to
equality. The most radical aspect of Haycraft’s decision is that, apart from
and above the Jewish Homeland context, he elevates the concept of “civil
and religious rights” to an independent status. In other words, he sees an
independent Bill of Rights where others could as easily see only a
conditional one, or none at all.
No claim was made that the water of Arab Urtas was needed for a
thirsty new Jewish Jerusalem. No claim was made that the owners of the
springs were discriminated against. The claim made on behalf of the
owners, and accepted by Haycraft, was for the right to private property in
its purest old-Liberal form. The water was theirs to do with as they pleased
and government had no business taking it at its own discretion.
Haycraft’s decision was overturned by the Privy Council in London in
early 192611 and the idea of a colonial legislator fettered by a fully-blown
list of civil rights was never seriously repeated in the Mandate era.
Viscount Cave, speaking for the Council, refused to read into the Mandate
a promise of plural particular civil rights. He read the “democratic
promise” as a single promise of non-discrimination. He did seem to concede
some soft, non-enforceable duty: that it was incumbent upon government to
follow “principles of sound legislation”, or even to “safeguard the rights
from time to time belonging to the inhabitants of the territory”. 12 But the
Dialectics of Zionism and Democracy
99
only hard, judicially-enforceable promise emanating from the Mandate
according to Cave, was the promise of color-blindness. Government could
not be questioned in court about the wisdom of taking privately-owned
water, but it could be ordered to refrain from taking it “in favour of any
one religion or race”.13
Yet, while some of the radical content of Haycraft’s decision was thus
discarded, it is crucially important to the issue at hand to realize that much,
if not most, has remained intact. The Privy Council did concede that “it
was the right and duty of the [Palestine Supreme] Court to examine the
terms of the mandate and to consider whether the Ordinance was in any
way repugnant to those terms”14 and that, had the Ordinance failed this
examination, the court would have been “entitled and indeed bound to treat
it as void”.15 The government of Mandate Palestine was thus declared a
constitutional government, bound both externally and internally by judicially-enforceable limits. It was bound to create a national home for the
Jewish people, and it was bound to refrain from discriminating between the
inhabitants of Palestine on the basis of “religion and race”.
All the later history of the dual obligation, even in this diluted form,
in the legal system of Mandate Palestine is a history of evasion, both
internal and external. The international aspect of this history is beyond the
scope of the present analysis.16 The simple internal ploy was to avoid the
use of “Ordinances” in any government action that threatened either equality
or Zionism. The courts willingly acquiesced. When a Muslim protested his
own conviction for smoking in public during the holy Ramadan, based on a
law aimed exclusively at Muslims, the court refused to discuss the promise
of equality because the law was an Ottoman, pre-Mandate enactment, still
effective at the time, but not an Ordinance.17 When a Jew protested his own
conviction for opening a business on the Sabbath in a predominantly
Jewish town, based on a law aimed exclusively at Jews, the court refused
to discuss the promise of equality because the law was a by-law of the
town, not an Ordinance.18 When an Arab claimed that the Hebrew language
inscription “Palestine” as “Land of Israel” on a government post-office
stamp was not a literal translation of the simple “Palestine” in Arabic and
English on the same stamp, the court refused to discuss the obvious
conflict between Zionism and equality, stating the stamp was created by
administrative action, not by Ordinance.19
Plainly, these were absurd decisions. Ordinances were designed by
the King’s Order in Council to be the main legislative tool of the Palestine
100 The History of Law in a Multi-Cultural Society
government, and the unqualified command that Ordinances adhere to the
Mandate could only be reasonably interpreted as a clear indication of the
King’s will, announced to the international community, that all legislative
action in Palestine be so restricted. Stamps, bylaws and (at least the
enforcement of) Ottoman laws, all derived their validity in Palestine from
Ordinances. So did every other official action. For the Supreme Court of
Palestine to rule otherwise could only mean that the loyal judiciary was
indeed unwilling to shoulder the responsibility for effective judicial control
of legislative power. The Urtas fiasco was not to happen again.
Not surprisingly, when the time came for the Mandate government to
finally face the impossible dilemma between revolutionary Zionism and
equality, it resorted to the most non-Ordinance ploy of all. As if to curb fire
with fire, it imposed severe restrictions both on Jewish immigration and on
acquisition of land by Jews, in a separate Order in Council.20 Predictably,
the Supreme Court rejected the (very sensible) argument that the new Order
in Council was merely an amendment of the original one, and therefore
that it too was bound by the Mandate.21 The Court insisted that the King
could issue new Orders on Palestine as he pleased, unfettered by the
Mandate. At least, that is, internally.
Let me pause at this stage to advance the following two points. It is
my view that, of the two promises – Zionism and Democracy (either as
rights or as equality) – the British rulers of Palestine fulfilled most of the
former and almost none of the latter. It did build a national home for the
Jewish people in Palestine,22 and it did so at the expense of existing rights
and by the use of discriminatory practices. I also take it as self-evident that
Zionism and Democracy have never been fully compatible,23 and that
choices have always been necessary. My argument is therefore not that the
Mandate rulers made a choice, nor even that that they chose badly, but that
they chased the choice out of court. My complaint is that they refused to
stand up in open court and account for their choice. My complaint, in other
words, is that old Imperialist Britain refused to behave like a modern
constitutional democracy in a Palestine it never even properly colonized.
This complaint about Britain is, of course, a parody. Not so my
complaint about the newly-formed State of Israel. It chose to inherit the
legal system of the Mandate intact,24 and so it chose to inherit the dual
promise. But it did not commit itself to following judicial precedent
intact,25 and it could therefore immediately open its courts to a reevaluation of all Mandate legislation. It could even re-discover in the
Dialectics of Zionism and Democracy
101
Mandate the Bill of Rights lost between Jerusalem and Westminster in the
Urtas case. It chose to do nothing. In a small but significant number of
Supreme Court decisions in the early days of the State, it made clear that
Israel was unwilling to pay more than lip service to the idea that the
legislative power of the Mandate government was legally limited by the
terms of the Mandate.26 Perhaps it was not ready for a constitutional reevaluation of the Mandate choices, lest constitutionality infect the State
itself too early in its formative stage.
And yet the stand against retrospective re-evaluation was not the only
context involving choice and the dual-promise in the early days of the
State. The other context was the then-recent second international granting
of the land of Israel in the form of the Partition Resolution of the General
Assembly of the United Nations on November 29th 1947.27 The Assembly
recommended a plan to commit part of the land to the establishment of a
Jewish State. The Jewish community of Palestine accepted the plan and
acted upon it in the sense that on May 14th 1948 it declared its
establishment as a “Jewish State in the Land of Israel . . . on the basis of
the Resolution of the General Assembly”,28 adopting the general structure
of government decreed by the Resolution. It is, however, a sad fact of
political discourse in Israel, that a critical part of the Partition Resolution
has been by and large unnoticed for most of the ensuing years.
The Resolution decreed that a declaration be made by the provisional
government before independence, containing a statement to the effect that
“the stipulations contained in the declaration are recognized as fundamental
laws of the State, and no law, regulation or official action shall conflict or
interfere with these stipulations”. From the list of stipulations that follow,
it is pertinent to quote two:
No discrimination of any kind shall be made between the inhabitants on the
ground of race, religion, language or sex.29
All persons within the jurisdiction of the State shall be entitled to equal
protection of the laws.30
The Declaration of the Establishment of the State of Israel did commit
the State to a “constitution to be established no later than October 1,
1948”, but none was in fact established at the time. A promise was made in
the declaration to maintain “complete political and social equality of rights
for all its citizens, regardless of religion, race or sex”, but this never
102 The History of Law in a Multi-Cultural Society
crystallized into a firm, specific constitutional commitment. Israel has so
far not committed itself to the obligation that “no law, regulation or official
action shall conflict or interfere” with the principle of equality.
Israel is now slowly inching its way towards such a commitment. It
committed itself in 1992 to being Jewish and Democratic by a Basic Law. 31
It has committed itself by the same law to some specific democratic rights,
mainly the right to freedom,32 the right to dignity,33 and the right to
property.34 The right to equality was deliberately left out, but it is safe to
assume that it will be read by judicial interpretation, within the next
decade, into the right to human dignity.
It is only then that the legal debate between Jewishness and
Democracy will begin in earnest. I maintain that the obligation to do so has
existed for most of the present century, and that at best we will only begin
to settle a long-overdrawn account.
Dialectics of Zionism and Democracy
103
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
For a representative bibliography of Hebrew publications, see Ron Margolin, ed., The
State of Israel as a Jewish and Democratic State (Jerusalem: World Union of Jewish
Studies, 1999, Hebrew), 281; Ruth Gavison, Can Israel be both Jewish and
Democratic? (Jerusalem: Van Leer Institute, 1999).
For the text of the Mandate, see: http://www.yale.edu/lawweb/avalon/palmanda.htm.
Mandate, Article 4.
Mandate, Article 6.
R. H. Drayton, ed. Laws of Palestine (London: Waterlow, 1934), 2,569.
1 Cranch 137 (1803). The American Marbury, like the case under discussion,
established and defined judicial power to review primary legislation in terms of a thenyoung constitution. Assumption of the power to review was based in both cases on
interpretative techniques, in the absence of explicit empowerment in the constitution
itself. Simliarities also abound in the rhetorical tones adopted by the two Chief Justices.
Both Marshall in Marbury and Haycraft in Murra based much of their decision on the
seemingly-inevitable dilemma of a judge faced with contradictory legal norms.
H.C. 27/25 Jerusalem-Jaffa District Governor v. Murra, Collection of Judgments of the
Courts of Palestine 1919-1933, 1,818.
On Haycraft, see Assaf Likhovski “In our Image: Colonial Discourse and the
Anglicization of the Law of Mandatory Palestine,” Israeli Law Review 29 (1995): 291322.
H.C. 27/25 Murra, 1,823.
Palestine Order in Council, Article 18.
P.C. 98/25 Jerusalem-Jaffa District Governor v. Murra, Collection of Judgments of the
Courts of Palestine 1919-1933, 1,828.
Ibid., 1,833.
Ibid.
Ibid., 1,832.
Ibid.
See, e.g., Nathan Feinberg, Some Problems of the Palestine Mandate (Tel Aviv: n.p.,
1936); Max Lazerson, On the Mandate (Tel Aviv: Igeret, 1937).
M.A. 9/36 Shanti v. Attorney General (1937) Annotated Supreme Court Judgements,
31.
M.A. 18/28 Attorney General v. Altshuler, Collection of Judgments of the Courts of
Palestine 1919-1933, 1,483.
H.C. 55/25 Husseini v. Government of Palestine, Collection of Judgments of the Courts
of Palestine 1919-1933, 1,483.
Palestine (Amendment) Order in Council, 1939, P.G. 898, Supp. 2, 459. Sec. 5 of the
Order empowers the government of Palestine, e.g., to prohibit “transfers of land from
Arabs to Jews”.
H.C. 19/47 Rozenblatt v. Registrar of Land, Haifa (1947) Annotated Law Reports, 499.
See, generally, Tom Segev, Palestine under the British (Tel Aviv: Keter, 1999,
Hebrew); Naomi Shepherd, Ploughing Sand: British Rule in Palestine 1917-1948
(New Brunswick, NJ: John Murray, 1999); Ronen Shamir, The Colonies of Law:
104 The History of Law in a Multi-Cultural Society
23
24
25
26
27
28
29
30
31
32
33
34
Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge Univ. Press,
2000).
See generally, Gavison, Can Israel.
Assaf Likhovski, “Between ‘Mandate’ and ‘State’: Rethinking the Periodization of
Israeli Legal History,” Journal of Israeli History 19 (1998): 5-34 (Hebrew); Yoram
Shachar, “History and Sources of Israeli Law,” in Introduction to the Law of Israel, ed.
A. Shapira and K. Devitt-Arar (Deventer: Kluwer, 1995), 1; Shamir, Colonies of Law,
10, n. 1.
On the contrary, the Israeli Supreme Court was quick to declare itself free to reconsider
the judicial policies of its Mandate predecessor; C.A. 376/46 Rozenbaum v. Rozenbaum,
2 Psakim 5 (1949).
H.C. 7/48 Al Karbutli v. The Minister of Defense, 2 P.D. 5; H.C. 5/48 Lion v. Gubernik,
1 P.D. 58.
United Nations General Assembly Resolution No. 181. For the text of the resolution,
see http://www.yale.edu/lawweb/avalon/un/res181.htm; Orit Kamir, “The Declaration
has Two Faces: The Interesting Story of the ‘Zionist Declaration of Independence’ and
the ‘Democratic Declaration of Independence’,” Tel Aviv University Law Review 23
(2000): 473-539 (Hebrew).
For an English text of the declaration, see http://www.israel.org/mfa/go.asp?MFAH00
pq0.
Ibid., part 1C, ch. 2 (Religious and Minority Rights).
Ibid.
Basic Law: Human Dignity and Freedom.
Ibid., sec. 5.
Ibid., sec. 2.
Ibid., sec. 3.