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The Comrades Law of Hebrew Workers in Palestine: A Study in Socialist Justice

Published online by Cambridge University Press:  28 October 2011

Ronen Shamir
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Extract

The purpose of this article is to examine socialist justice “in action.”Specifically, it looks at the Comrades Law system established in 1920s Palestine under the auspices of the General Federation of Hebrew Workers in Palestine. It finds that, regardless of original intentions, the Comrades Law quite rapidly became a quasi-state apparatus, displaying a clear bias in favor of institutional interests over those of individual workers. The argument, therefore, is that rather than becoming a liberating, alternative form of justice, this form of socialist justice ended up reinforcing existing relations of power and working as a mechanism of bureaucratic control.

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Articles
Information
Law and History Review , Volume 20 , Issue 2 , Summer 2002 , pp. 279 - 305
Copyright
Copyright © the American Society for Legal History, Inc. 2002

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References

1. See, for example, Michalowski, Raymond, “All as Nothing: An Inquiry into the Impossibility of Cause Lawyering under Cuban Socialism,” in Cause Lawyering: Political Commitments and Professional Responsibilities, ed. Sarat, Austin and Scheingold, Stuart (Oxford, Oxford University Press, 1998), 523–45.Google Scholar

2. Merry, Sally E., “Sorting Out Popular Justice,” in The Possibility of Popular Justice, ed. Merry, Sally E. and Milner, Neal (Ann Arbor: The University of Michigan Press, 1995), 31–66.Google Scholar

3. Hayden, Robert M., “Popular Use of Yugoslav Labor Courts and the Contradiction of Social Courts,” Law and Society Review 20 (1986): 229–51.CrossRefGoogle Scholar

4. Sternhell, Zeev, Nation-Building or a New Society? The Zionist Labor Movement (1904–1940) and the Origins of Israel (Tel Aviv: Am Oved, 1995) (Hebrew).Google Scholar

5. Hayden, Robert M., Social Courts in Theory and Practice: Yugoslav Workers' Courts in Comparative Perspective (Philadelphia: University of Pennsylvania Press, 1991).Google Scholar

6. Lissak, Moshe, “Immigration, Absorption and Society Building in the Jewish Community in Eretz-Israel (1918–1930),” in The History of the Jewish Community in Eretz-lsrael since 1882, ed. Lissak, Moshe (Jerusalem: Bialik Institute, 1994), 172–302 (Hebrew).Google Scholar

7. Sternhell, Nation-Building; Grinberg, Lev L. and Shafir, Gershon, “Economic Liberalization and the Breakup of the Histadrut's Domain,” in The New Israel, ed. Shafir, Gershon and Peled, Yoav (Boulder, Colo.: Westview Press, 2000), 103–28.Google Scholar

8. Deborah S. Bernstein, “Challenges to Separatism: Joint Action by Jewish and Arab Workers in Jewish Owned Industry in Mandatory Palestine,” in The New Israel.

9. Vries, David De, “The Making of Labour Zionism as a Moral Community: Workers' Tribunals in 1920s Palestine,” Labour History Review 65 (2000): 139–65.CrossRefGoogle Scholar

10. For a broader discussion of the political context, see ibid.

11. Greenberg, Moshe, “Comrades Law and the State,” in Mishpat Ha' Haverin (Comrades Law) (Tel Aviv: Histadrut Klalit, 1926), 27–30 (Hebrew).Google Scholar

12. Ibid.

13. On the history of the Hebrew Law of Peace, see Shamir, Ronen, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 2000).Google Scholar

14. In principle, the coexistence of two nonstate Zionist judicial systems in Palestine, one targeting workers and the other targeting the general public, could lead to jurisdictional struggles. However, I found no evidence that such was the case. Advocates of each system often expressed support for the goals of the other and cases of cooperation between the two systems had not been rare. A draft of a revised constitution of the Comrades Law even instructed judges that “when the regulations are silent, the ordinary practices of arbitration and of the Hebrew Law of Peace should be followed” (Article 9, chap. 1, Lavon Archive, (4)-250–72–1–2479) (Hebrew).

15. Shira, Yisrael Bar, “A Study of the Substance of the Comrades Law,” Ha'mishpat 4 (1930): 107 (Hebrew).Google Scholar

16. Ibid., 105.

17. Ibid., 106; also see Zalrnan Feller, “On the Comrades Law,” Davar, 26 Nov. 1926, 2 (Hebrew).

18. Bar Shira, “A Study of the Substance of the Comrades Law,” 112; Feller, “On the Comrades Law.”

19. Bar Shira, “A Study of the Substance of the Comrades Law,” 113 (emphasis added).

20. However, it seems safe to argue that the architects of the Comrades Law were far from being well acquainted with Marxist writings on law in general and with works such as Pashukanis's in particular.

21. Feller, “On the Comrades Law.”

22. See De Vries, “The Making of Labour Zionism”; Bar-On, Shani and Vries, David De, “The Procrustean Bed of Professionalism: Lawyers and the Making of the Histadrut's Tribunals in 1920s–1930s Palestine,” Avoda, Hevra U'Mishpat 8 (2001): 15–2Google Scholar (Hebrew). Also see a letter from a lower-instance court to the High Comrades Law Court, dated 5 Sept. 1927, arguing along similar lines, High Comrades Court, Jan. 1927-May 1928, Lavon Archive, (4)-245–2–1 (Hebrew).

23. Shivo, Yisrael, “About Another Institution of the Histadrut,” Davar, 15 June 1926, 3 (Hebrew).Google Scholar

24. Ibid.; Y. H. (Unknown), “Revising the Comrades Law,” Davar, 11 Nov. 1928, 2 (Hebrew); Azaria Eliyahu, “On the Comrades Law,” Davar, 4 Nov. 1928, 3 (Hebrew); Comrades Law Protocols 1935, Lavon Archive, (4)-208–1–106 (Hebrew).

25. Shamir, The Colonies of Law, 135.

26. Shivo, “About Another Institution of the Histadrut.”

27. Dotan, Shmuel, Reds: The Communist Party in Palestine (Kfar Sava: Shavna Hasofer, 1991) (Hebrew).Google Scholar

28. Ben-Eliyahu, Moshe, “Enforcement of Comrades Courts' Decisions,” in Mishpat Ha'Haverin (Comrades Law) (Tel Aviv: Histadrut Klalit, 1926), 34–37 (Hebrew).Google Scholar

29. Merry, “Sorting Out Popular Justice,” 42.

30. Lavon Archive, (4)-250–54–205 (Hebrew).

31. De Vries, “The Making of Labour Zionism.”

32. Trial no. 124, Lavon Archive, (4)-245–2–79 (Hebrew).

33. Also see, for example, the Litvak case, cited in De Vries, “The Making of Labour Zionism,” 139–42.

34. Lavon Archive, (4)-250–72–1–2396 (3 Sept. 1926) (Hebrew).

35. Ibid., (4)-250–72–1–2396 (7 Dec. 1926) (Hebrew).

36. Ibid., (4)-208–1–106 (10 Feb. 1928) (Hebrew).

37. Ibid.

38. Milchamtenu: A Publication of Po'aley Zion, (12 Jan. 1928) and (3 Feb. 1928) (Hebrew).

39. Lavon Archive, (4)-250–72–1–2398 (Hebrew).

40. Comrades Law could hardly ever be depended upon to resolve disputes between a member of the Histadrut and employers unaffiliated with the Histadrut. Such employers simply refused to litigate in a Comrades Law setting. Shivo wrote about an attempt of an employee to summon a “well-known capitalist firm” to a Comrades Court: “The company failed to respond to a couple of invitations. After a third attempt had been made, the chief secretary of said company answered that since the company was capitalist, ‘we cannot surrender to decisions made by judges who act on behalf of the Histadrut.’” See Shivo, “About Another Institution of the Histadrut.”

41. Case 168/420, Sara Agi v. Jerusalem Workers Council, Lavon Archive, (4)-245–2–1 (22 Feb. 28) (Hebrew).

42. Decisions of the High Comrades Law Court, Jan. 1927-May 1928, Lavon Archive, (4)-245–2–1 (Hebrew). Also see Case 218/420, Lavon Archive, (4)-245–2–1 (Hebrew).

43. Case 1/28, Solel-Boneh v. Moshe Shadmi and others, 8 Apr. 1929, Lavon Archive, 72–1–2399 and 208–1–48 (Hebrew).

44. Dr. Moshe Zmora, who later became a justice of Israel's Supreme Court, retained private practice alongside his capacity as one of the chief engineers of the Comrades Law. At a certain stage, he tried to enlist the private firm of Harry Sacher to the service of the Histadrut. The Sacher firm was the largest and most influential law firm in the country at that time. The Histadrut, according to Zmora's plan, was to become a full-time retainer of Zmora and Sacher. The legal fees were fixed by Zmora at 60EL per month, a hugh amount by the standards of the day. Zmora suggested that the fees would be paid jointly by the Acting Committee of the Histadrut and the Jaffa and Haifa Workers Councils. Ben-Gurion, the general secretary of the Histadrut, rejected the terms of agreement and canceled the suggested deal. See Lavon Archive, (4)-208–1–48 (Hebrew).

45. Case 1/28, Solel-Boneh v. Moshe Shadmi and others, 8Apr. 1929, Lavon Archive, 72–1–2399 and 208–1–48 (Hebrew).

46. Letter of 21 Aug. 1929 and letter of response, 23 Aug. 1929. Lavon Archive, (4)-250–72–1, file 2475 (Hebrew).

47. For details on the Hebrew Law of Peace, see Shamir, The Colonies of Law.

48. State Archive, 76/P. box 635, file 212, 1923–1924 (Hebrew).

49. Lavori Archive, (4)-250–36–1, file 1852, letter of 18 Sept. 1929 (Hebrew).

50. See, for example, the protocol of 13 Dec. 1926, Lavon Archive, (4)-208–1–8 (Hebrew).

51. Comrades Law Protocols 1935, Lavon Archive, (4)-208–1–106 (Hebrew).

52. Azaria, “On the Comrades Law,” 3.

53. Lavon Archive, (4)-208–1–106 (Hebrew).

54. Ibid., lecture of Bar Shira, 16 Oct. 1928 (Hebrew).

55. Merry, “Sorting Out Popular Justice,” 31–66. See also Henry, Stuart, Private Justice: Towards Integrated Theorising in the Sociology of Law (London: Routledge, 1983).Google Scholar

56. Hayden, “Popular Use of Yugoslav Labor Courts” Hayden, Social Courts.

57. Sternhell, Nation-Building.

58. However, as one anonymous reviewer remarked, the Histadrut may have been more active in furthering the legal rights of employees by appealing to reforms in state law (for instance, labor law) directly to the British government. The question of the Histadrut's activity on this front is highly important and begs for further research. However, this question is beyond the scope of this article.

59. Hayden, “Popular Use of Yugoslav Labor Courts.” I thank one of my anonymous reviewers for stressing this point and suggesting that, in general, discussions concerning the possibility of socialist justice must take account of the separation-of-powers model.

60. Hayden, Social Courts.

61. Peter Fitzpatrick, “The Impossibility of Popular Justice,” in The Possibility of Popular Justice, 286–311.