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A “Jewish State…to Be Known as the State of Israel”: Notes on Israeli Legal Historiography

Published online by Cambridge University Press:  28 October 2011

Pnina Lahav
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Extract

In 1953 a musical titled The Adventures of Nasseradin opened in Tel Aviv. One of its tunes, the “Song of Law,” had music and lyrics so appealing that overnight it became the most popular song in Israel. The subject of the lyric was a tyrant, the Emir of the Kingdom of Buchara. Two brothers were arguing over a pot, and the Emir in his capacity as judge, presided over their trial. His decree: plaintiff and defendant should be executed and the pot thrown into the royal treasury.

Type
Forum: Assessing the Field. New Departures in Israeli Legal History, Part Three
Information
Law and History Review , Volume 19 , Issue 2 , Summer 2001 , pp. 387 - 433
Copyright
Copyright © the American Society for Legal History, Inc. 2001

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References

1. Ilan, Rafi, “A Comparison of Scripts: Day and Night We Shall Sing to Hawaja Nasseradin,” Haaretz, 16 June 2000.Google Scholar

2. For a discussion of the philosophy of statism obtaining in Israel of the 1950s (mamlachtiut), see, e.g., Cohen, Mitchell, Zion and State: Nation, Class and the Shaping of Modern Israel (New York: Basil Blackwell, 1987), 201.Google Scholar

3. Before the 1980s there were only a few works concerning Israeli legal history. See, e.g., Malchi, Eliezer, The History of the Law of Palestine (Tel Aviv: Dinim, 1953)Google Scholar; Friedman, Daniel, “Independent Development of Israeli Law,” Israel Law Review 10 (1975): 536–62Google Scholar; Shachar, Yoram, “Mekoroteha Shel Pkudat Ha'hok Ha'plili 1936 [The Sources of the Criminal Code Ordinance 1936],” Tel-Aviv University Law Review 1 (1979): 75–113Google Scholar; Rubenstein, Elyakim, Shoftey Eretz [Judges of the Land] (Tel Aviv: Shocken, 1980).Google Scholar For a full bibliography, see: “Israeli Legal History: A General Bibliography,” in The History of Law in a Multi-Cultural Society: Israel, 1917–1967, ed. Harris, Ron, Kedar, Alexander, Lahav, Pnina, and Likhovski, Assaf (Ashgate: Dartmouth, forthcoming)Google Scholar, and Lemer, Pablo, “Legal History of Israel: Its Place in Law Studies,” in Israeli Reports to the XV International Congress of Comparative Law, ed. Rabello, Alfredo Mordechai (Jerusalem: Sacher Institute, 1999).Google Scholar

4. For legal education in Israel, see Assaf Likhovski, “Colonialism, Nationalism and Legal Education: The Case of Mandatory Palestine,” in The History of Law in a Multi-Cultural Society; Likhovski, Assaf, “The Invention of ‘Hebrew Law’ in Mandatory Palestine,” American Journal of Comparative Law 46 (1998): 339–73CrossRefGoogle Scholar; Grunis, Asher, “Legal Education in Israel: The Experience of Tel Aviv Law School,” Journal of Legal Education 27 (1975): 203–18Google Scholar; Mautner, Menachem, “Legal Education in Transition: The Israeli Law School Between the University, the Bar and the Courts,” Tel-Aviv University Studies in Law 13 (1997): 271–98.Google Scholar

5. They are, by order of seniority, Yoram Shachar, Ron Harris, Alexander Kedar, Assaf Likhovski, Yifat Holzman-Gazit, and Nir Kedar.

6. See Maoz, Asher, “Historical Adjudication: Courts of Law, Commissions of Inquiry, and ‘Historical Truth,’” Law and History Review 18 (2000): 559–606CrossRefGoogle Scholar; Bilsky, Leora, “Judging Evil in the Trial of Kastner,” Law and History Review 19 (2001): 117–60.CrossRefGoogle Scholar

7. Gordon, Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125.CrossRefGoogle Scholar

8. See Abraham, David, “Where Hannah Arendt Went Wrong,” Law and History Review 18 (2000): 607–12CrossRefGoogle Scholar; Douglas, Lawrence, “Language, Judgment, and the Holocaust,” Law and History Review 19 (2001): 177–82CrossRefGoogle Scholar; Luban, David, “A Man Lost in the Gray Zone,” Law and History Review 19 (2001): 161–76CrossRefGoogle Scholar; Moglen, Eben,“Making History: Israeli Law and Historical Reconstruction,” Law and History Review 18 (2000): 613–17.CrossRefGoogle Scholar

9. Haim V. Arlosoroff was born in Ukraine but immigrated to Germany at a young age and was educated there. A socialist intellectual, he rapidly rose to a position of leadership in the Zionist movement. In 1933 he was murdered on a Tel Aviv beach, two days after he had returned from Berlin, where he negotiated an agreement with the Nazi government on behalf of German Jews. The question “Who murdered Arlosoroff” caused a turmoil in Zionist circles. Labor circles blamed right-wing propaganda, which was particularly venomous preceding the murder. The Right, crying foul, vigorously denied responsibility. The British government in Palestine brought indictments against two right-wing zealots. Both were acquitted but one was acquitted on a technicality only. The case has remained a mystery to this day and its traumatic effects are still visible.

Rudolf Israel Kasztner, a Jewish journalist in Budapest, was chair of the Jewish Relief and Rescue Committee during the Nazi occupation of Hungary. His task was to save Jews from Nazi genocide. Most Hungarian Jews were murdered in Auschwitz. During Kasztner's negotiations with Eichmann, the Nazi official allowed a train with 1865 passengers to leave Hungary for Switzerland. A disproportionate number of Kasztner's relatives left on the train. After the war, Kasztner was accused of intentionally withholding the “Auschwitz news” from the majority of Jews in order to guarantee the safe departure of the “Bergen-Belsen train.” Kasztner immigrated to Israel and occupied a mid-level position in the ministry of trade and industry. In 1953 he was pushed by the attorney general into launching a defamation suit against one Malkiel Gruenvald, who accused Kasztner of being a Nazi collaborator. Formally a witness, Kasztner found himself a “defendant” in a trial that touched off a tumultuous political squall in Israel of the 1950s. After the solitary judge in the trial declared that “Kasztner has sold his soul to the devil” Kasztner was assassinated by right-wing zealots. Following the assassination, the Supreme Court held that Kasztner could not be considered a Nazi collaborator.

10. On the Proclamation, see Shachar, Yoram, “Yomano Shel Uri Yadin [The Diary of Uri Yadin],” Tel-Aviv University Law Review 16 (1991): 542–53Google Scholar; Yoram Shachar, “The History of the Proclamation” (in progress); Kamir, Orit, “La-‘Megila’ Yesh Shtey Panim; Sipuran Ha'muzar shel ‘Hachrazat Ha'medina Ha'tsionit’ Ve-‘Hachrazat Ha'medina Ha'demokratit’[The Interesting Story of the ‘Zionist Declaration of Independence’ and the ‘Democratic Declaration of Independence’],” Tel-Aviv University Law Review 23 (2000): 473–538Google Scholar; Rubinstein, Elyakim, “The Declaration of Independence as a Basic Document of the State of Israel,” Israel Studies 3.1 (1998): 195–210.CrossRefGoogle Scholar

11. Friedman, Lawrence M., “Legal History: Israel and the United States: Some Remarks,” in The History of Law in a Multi-Cultural Society. Emphasis in the original.Google Scholar

12. All three issues: Arabs, women, and Mizrahim are rooted in identity politics. To these at least a fourth should be added, related to the status of homosexuals and lesbians in Israel. I realize that my failure to do justice to this issue leaves my discussion incomplete. The curious about scholarship on gay rights in Israel should consult Walzer, Lee, Between Sodom and Eden—A Gay Journey through Today's Changing Israel (New York: Columbia University Press, 2000)Google Scholar; Harel, Alon, “Gay Rights in Israel: A New Era?” International Journal of Discrimination and the Law 1 (1996): 262CrossRefGoogle Scholar; Harel, Alon, “The Rise and Fall of the Israeli Legal Revolution,” Columbia Human Rights Law Review 31 (2000): 443Google Scholar; Yonai, Yuval and Spivak, Dori, “Between Silence and Condemnation: The Construction of Gay Identity in Israeli Legal Discourse, 1948–1988” Israeli Sociology 1 (1999 [Hebrew]): 257Google Scholar; Gross, Aeyal, “Challenges to Compulsory Heterosexuality: Recognition and Non-Recognition of Same-Sex Couples in Israeli Law,” Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, ed. Wintemute, Robert and Andenas, Mads (Oxford: Hart, forthcoming).Google Scholar

13. For a Hebrew text of the Proclamation, see <http://www.knesset.gov.il/knesset/docs//megilat.htm>. For an English text, see <http://www.mfa.gov.il/mfa/go.asp?MFAH00hb0>.

14. The term “ma'apilim” has a special meaning in the Zionist-Israeli ethos and cannot be reduced to “immigrants.” It denotes “climbing a particularly steep and difficult terrain,” implying that Israel is geographically located at the apex of the universe. It also implies a particular determination and discipline associated with mountain climbing. The three groups mentioned by the Proclamation, “pioneers, ma'apilim and defenders” were thus special people, members of a small and dedicated elite who made the Zionist dream possible. The other side of the phenomenon of “Ha'apala” is that, at the time, Jewish immigration to Palestine was illegal. Thus, in the Israeli ethos, “illegal immigration” was a positive value and the term “illegal” thereby lost its conventional meaning as designating negative conduct. In order to preserve this meaning, I use the term “ma'apilim” in Hebrew and avoid the more common and accessible term “immigrants.”

15. Whereby Jews would be allowed to take their capital with them in the form of German (Nazi) goods. See Avineri, Shlomo, Arlosomff (London: Peter Halban, 1989), 1–2Google Scholar; Maoz, “Historical Adjudication,” 561.

16. In deference to Mr. Kasztner and in order to retain the flavor of his Hungarian background, I decided to keep the European spelling of his name (with the letter Z after the S) rather than the Americanized “Kastner” as preferred by Maoz and Bilsky. The reader will also note that Kasztner had several names. Rudolf or Rezso to his friends, his German and Hungarian names, respectively, which he used in Hungary, and the name Israel, which he used upon immigration to the state of Israel. The question of “what's in a name” is important from the perspective of identity studies. It also poses a methodological problem. An Americanized spelling may make the materials more accessible, but at the same time the sense of a foreign culture might be diminished.

17. And that are German or Hungarian legal history, respectively, as much as they are Israeli history.

18. See Likhovski, Assaf, “Colonial Discourse and the Anglicization of the Law of Mandatory Palestine,” Israel Law Review 24 (1995): 291CrossRefGoogle Scholar; Likhovski, Assaf, “Between ‘Mandate’ and ‘State’: On the Division of the History of Israeli Law into Periods,” Journal of Israeli History 19 (1998): 5–34Google Scholar; Likhovski, Assaf, “Law as a Site of Anglo-French Cultural Conflict in Mandatory Palestine,” in La France, L'Europe Occidental et La Palestine, 1917–1948, Melange du CRFJ, ed. Trimbur, Dominique (Paris: CNRS Editions, forthcoming.)Google Scholar I wish to thank Assaf Likhovski for helping me think through this option.

19. On the choices made in Zionist historiography in these and other respects, see Kimmerling, Baruch, “Academic History Caught in the Cross-Fire: The Case of Israeli-Jewish Historiography,” History and Memory 7 (1995): 41–65Google Scholar; Ram, Uri, “Zionist Historiography and the Invention of Modern Jewish Nationhood: The Case of Ben Zion Dinur,” History and Memory 7 (1995): 91–124.Google Scholar

20. The question of perspective should also be raised in this context. Given that Israel has been a state for “only” fifty-three years, the more “Israel” bound the scholar is, and the more she recognizes the “Zionist dividing line,” the more she risks the loss of a detached perspective. As most scholars of the twentieth century know, it is quite difficult to research and come to conclusions about issues when the principal players are still alive or when the scholar is tempted to rely on personal memory to strengthen the scholarly conclusion.

21. See the third part of the Proclamation, stating that the state of Israel “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”

22. Thus the signers refer to themselve as “we, members of the people's council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement.” For the “collective voice” as it appears in the Proclamation, see Kamir, “La-‘Megila’ Yesh Shtey Panim,” 499–500.

23. See Sprinzak, Ehud, Brother against Brother: Violence and Extremism in Israeli Politics from Altalena to the Rabin Assassination (New York: The Free Press, 1999).Google Scholar

24. Truth not only about who killed Arlosoroff or whether Kasztner was a collaborator but truth concerning major policy decisions of the Zionist movement, such as the supremacy of the value of national honor or the question of how much physical force to use. For the concept of Zionism's regime of truth, see Silberstein, Laurence J., The Postzionism Debates: Knowledge and Power in Israeli Culture (New York and London: Routledge, 1999), 19–20.Google Scholar

25. Prime Minister Begin had not yet immigrated to Palestine during the Arlosoroff affair, but he was sufficiently affected by it to insist, more than fifty years after the facts, on a commission of inquiry, hoping that it would clear the nationalist camp from charges of assassination.

26. See Sprinzak, Ehud, The Ascendance of Israel's Radical Right (New York and Oxford: Oxford University Press, 1991), 25–30Google Scholar; Horowitz, Dan and Lissak, Moshe, Origins of the Israeli Polity: Palestine under the Mandate (Chicago and London: University of Chicago Press, 1978), 120–56Google Scholar; Avineri, Shlomo, The Making of Modern Zionism: The Intellectual Origins of the Jewish State (New York: Basic Books, 1981)Google Scholar; and note 33 below.

27. Shlomo Avineri writes: “Arlosoroff was one of the few people in the [Zionist] leadership … who was also a European intellectual of the first order and an original social thinker, who had to his name a number of books and many articles in several languages in such varied fields as socialist and anarchist thought, economic history, Jewish social studies, financial theory and social analysis. … His biography epitomizes the burden of a whole generation of Eastern and Central European Jewish intellectuals, who were nurtured, in the vortex of World War I, on the heady concoction of Russian revolutionary thought and German fin de siècle romantic idealism, rooted in the Judaic tradition yet estranged from any normative structure of religious Judaism, tossed between Russian and German culture, immersed in both, yet alienated from each.” Avineri, Arlosoroff, 4.

28. Arlosoroff was described in some right-wing attacks “as a traitor who should be eliminated.” Avineri, Arlosoroff, 2. See also Tevet, Shabtai, Retzah Arlosoroff [The Arlosoroff Murder] (Jerusalem and Tel Aviv: Shoken, 1983), 41.Google Scholar

29. Compare Shlomo Avineri's account of what led to the murder of Arlosoroff (the transfer agreement with the Nazi government) with Hazony, Yoram, The Jewish State: The Struggle for Israel's Soul (New York: Basic Books, 2000).Google Scholar Hazony's polemic was published to great acclaim in the United States in 2000. He refers to Arlosoroff's murder in the context of skirmishes between Right and Left about unionization, ignores the negotiations with the Nazi government altogether, and implies that disagreements about the right to unionize were the reason for the venomous campaign against Arlosoroff. Hazony then asserts that “…the accusation of the politically motivated murder was sufficient to do substantital damage to the Revisionists' public standing. In the elections held on July 23 [about six weeks after Arlosoroff died], Labor for the first time became the largest party in the Zionist Organization….” This, Hazony explains, allowed Ben-Gurion to dominate Israeli politics for the next three decades. Ibid., 221–22. Compare this version with Hecht, Ben, Perfidy (New York: Julian Messner, 1962).Google Scholar For a more balanced view, see Sprinzak, Brother against Brother, 33–34.

30. Avineri, Arlosoroff, 2.

31. Weitz, Yehiam, Haaish She'nirtsah Paamayim: Hayav, Mishpato U'moto Shel Yisrael Kastner [The Man Who Was Murdered Twice] (Jerusalem: Keter, 1995), 117–22Google Scholar; Lahav, Pnina, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997), 141–42.Google Scholar For a poignant theory of law as traumatic events that tend to repeat themselves, see Felman, Shoshana, “Forms of Judicial Blindness, Or the Evidence of What Cannot Be Seen,” Critical Inquiry 4 (1997): 738.CrossRefGoogle Scholar

32. Weitz, Haaish She'nirtsah Paamayim, 274. One may see the assassination of Prime Minister Yizhak Rabin on Nov. 4, 1992, as a repetition of the same trauma (the sense that the state has been hijacked, is skidding dangerously, and that elimination of one man will “cure” the political situation). See Sprinzak, Brother against Brother, 244–85.

33. See, for example, Ron Harris, “Legitimizing the Imprisonment of Poor Debtors: Lawyers, Legislators, Judges,” in The History of Law in a Multi-Cultural Society; Ram, Uri, “The Promised Land of Business Opportunities: Liberal Post-Zionism in the Global Age,” in The New Israel: Peacemaking and Liberalization, ed. Shafir, Gershon and Peled, Yoav (Boulder and Oxford: Westview Press, 2000), 217–40Google Scholar; Likhovski, “Between ‘Mandate’ and ‘State.’” For a critique of the thesis that the ideology of the historically dominant Zionist labor movement was genuinely socialist, see Sternell, Zeev, The Founding Myths of Israel: Nationalism, Socialism, and the Making of the Jewish State (Princeton: Princeton University Press, 1998).Google Scholar

34. See, in general, Lahav, Judgment in Jerusalem, 79–120. Ben-Gurion's iron rule in the 1950s was that no coalition government would include either Herut (the right-wing party formed after the disbanding of the Irgun) or Israel's Communist Party (the slogan was “without Herut or Maki”). The other side of this coin was persecution of members of these two groups in an effort to delegitimize them in the eyes of the public. Israel's Supreme Court took a leading role in curtailing the government's powers to achieve its aims.

In Kol Ha'am v. Minister of the Interior the Court struck down an administrative order suspending the publication of the Communist party newspapers, holding that the right to freedom of expression is an integral part of Israel's living constitution. See ibid., 107–12. In Cr.A. 49/58 Heruti v. Attorney General, 12 P.D. 1541 (1958), the Court limited the powers of emergency legislation to curb freedom of association and acquitted a right-wing activist of the charge of membership in a terrorist organization. See ibid., 280, note 18. For a discussion of Israeli liberalism, see Ezrahi, Yaron, Rubber Bullets: Power and Conscience in Modern Israel (New York: Farrar, 1997).Google Scholar See also Peleg, Ilan, “Israel as a Liberal Democracy: Civil Rights in the Jewish State,” in Review Essays in Israel Studies, ed. Eisenberg, Laura Zittrain and Caplan, Neil (Albany: State University of New York, 2000), 63–80Google Scholar; and Maoz, Asher, “Defending Civil Liberties without a Constitution—The Israeli Experience,” Melbourne University Law Review 16 (1988): 815.Google Scholar

35. See Mautner, Menachem, Yeridat Ha'formalizm Ve'aliyat Ha'arakhim Ba'mishpat Ha'yisraeli [The Demise of Formalism and the Rise of Values in Israeli Law] (Tel Aviv: Magele Daat, 1993).Google Scholar

36. For a discussion of the judicial appointment process in Israel, see Shetreet, Shimon, Justice in Israel: A Study of the Israeli Judiciary (Boston: M. Nijhoff Publishers, 1994).Google Scholar

37. It is also known that Justice S. J. Cheshin was appointed to the bench in 1948 because of, among other things, his centrist orientation. Lahav, Judgment in Jerusalem, 81. It is widely thought that Bechor Shetreet, the only Sephardi minister in the first cabinet, held hostage the permanent appointment of Justice Moshe Silberg to the Supreme Court until the government agreed to promote the Mizrahi Judge Yaacov Azoulai to the presidency of the district court of Haifa. Ibid., 82, n. 7. For a discussion of the judicial appointments of the first three decades, see Rubenstein, Shoftey Eretz.

38. The original Hebrew for “the Jewish community” is “Yishuv Ivri.” “Yishuv,” literally “settlement,” is the term used by Israelis to designate the pre-independence Jewish community in Palestine. Traditionally the Yishuv was described as a “quasi state which in many spheres of political and social activity operated in a statelike manner.” See Horowitz and Lissak, Origins of the Israeli Polity, 2. For a critique of Horowitz and Lissak's account of the history of the Yishuv, see Shafir, Gershon, Land, Labor, and the Origins of the Israeli-Palestinian Conflict, 1882–1914 (Cambridge and New York: Cambridge University Press, 1989), 1–7.Google Scholar

39. In a speech at Auschwitz-Birkenau, Israel's President Ezer Weitzman declared: “Israel was not established as a result of the Holocaust. The right of the Jewish people to independence in Eretz Israel is as strong as the right of any nation in the world. It would have been fulfilled even without the tragedy of the millions who were sacrificed at the altar of Nazi racial theories.” Haaretz, 3 May 2000. For an analysis, see Segev, Tom, One Palestine Complete (New York: Metropolitan Books, 2000), 491.Google Scholar

40. Nor is it clear that most survivors chose to come to Palestine, as the Proclamation and Zionist ideology implied.

41. See note 38 above regarding the term “Yishuv.”

42. See Eshkoli, Hava, Elem: Mapai Le'nochah Ha'shoa, 1939–1942 [Silence: Mapai in Front of the Holocaust, 1939–1942] (Jerusalem: Yad Ben Zvi, 1994)Google Scholar; Friling, Tuvia, Hetz Ba'arafel: David Ben-Gurion, Hanhagat Ha'yishuv Ve'nisyonot Hatsala Ba'shoa [Arrow in the Dark: David Ben-Gurion, the Yishuv Leadership and Rescue Attempts during the Holocaust] (Sede-Boker: The Ben-Gurion Research Center, 1998)Google Scholar; Ofer, Dalia, Escaping the Holocaust: Illegal Immigration to the Land of Israel, 1939–1944 (Oxford and New York: Oxford University Press, 1990)Google Scholar; Porat, Dina, The Blue and the Yellow Stars of David: The Jewish Leadership in Palestine and the Holocaust, 1939–1945 (Cambridge: Harvard University Press, 1990)CrossRefGoogle Scholar; Teveth, Shabtai, Ben-Gurion and the Holocaust (New York: Harcourt Brace, 1996)Google Scholar; Weitz, Yehiam, Mudaut Ve'hoser Onim: Mapai Le'nochah Ha'shoa, 1942–1944 [Awareness and Helplessness: Mapai in Front of the Holocaust, 1942–1944] (Jerusalem: Yad Ben Zvi, 1994)Google Scholar; Zertal, Idith, From Catastrophe to Power: Holocaust Survivors and the Emergence of Israel (Berkeley: University of California Press, 1998).Google Scholar

43. Ofer, Escaping the Holocaust, 23–27.

44. One interesting aspect of this history is how Israel's government tried to achieve reconciliation and put matters to rest in the Eichmann trial. See Bilsky, Leora, “In a Different Voice: Social Criticism in the Shadow of Israel's Holocaust Trials,” Theoretical Inquiries in Law 1 (2000): 509–7Google Scholar; Weitz, Yechiam, “The Holocaust on Trial: The Impact of the Kasztner and Eichmann Trials on Israeli Society,” Israel Studies 1.2 (1996): 1–26.CrossRefGoogle Scholar

45. Scott v. Sanford, 19 How. (60 U.S.) 393 (1856); Brown v. Board of Education, 347 U.S. 483 (1954). David Luban comments that Bilsky is mistaken to state that the Kasztner Trial has been forgotten. Luban, “A Man Lost in the Gray Zone.”

46. Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking Press, 1963), 42.Google Scholar

47. Rosenfeld, Shalom, Tik Plili 124: Mishpat Gruenvald-Kastner [Criminal Case 124: The Gruenvald-Kasztner Trial] (Tel Aviv: Karni, 1955)Google Scholar; Hecht, Perfidy. Rosenfeld does not refer to the appeal. Hecht mentions it in passing and gives it a long footnote. For other works on Kasztner before the 1990s, see Pratt, Emanuel, Ha'Mishpat Ha'gadol: Parashat Kastner [The Great Trial: The Kasztner Affair] (Tel Aviv: Or, 1955)Google Scholar; Dinur, Dov, Kastner: Giluyim Hadashim al Ha'ish U'poalo [Kastner Leader or Villain] (Haifa: Gestelist, 1987).Google Scholar In the 1980s a play on Kasztner renewed the Israeli interest in his moral dilemma, see Lerner, Moti, Kastner (Tel Aviv: Or-Am, 1988).Google Scholar

48. The Kaztner trial was briefly mentioned in criminal law classes as an example for the distinction between action and omission and the special standard of proof developed by lustice Agranat for libel cases in which the defendant accuses the plaintiff of severe criminal deeds, but that was all. For a discussion, see Lahav, Judgment in Jerusalem, 129–30, 138. Similarly, the Eichmann trial was periodically mentioned but only for technical, doctrinal reasons. Until the late 1990s the substantive legal issues concerning the Holocaust were not addressed.

49. In the early 1960s a series of cases sustained the outlawing of the radical Palestinian group El-Ard. In justification the Court relied on the failure of the Weimar Republic to outlaw the Nazi party. The implication was that had the Weimar courts outlawed Hitler's party, the catastrophic results of the rise of Fascism would have been avoided. See Lahav, Judgment in Jerusalem, 192.

50. See Kimmerling, “Academic History Caught in the Cross-Fire,” 48. The question of when Palestinian peoplehood has been crystallized is intimately connected to this inquiry. Compare Kimmerling, Barach and Migdal, Joel S., Palestinians: The Making of a People (New York: Free Press, 1993)Google Scholar with Khalidi, Rashid, Palestinian Identity: The Construction of Modern National Consciousness (New York: Columbia University Press, 1997).Google Scholar

51. It continues: “The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.” See also: Kamir, “La-‘Megila’ Yesh Shtey Panim,” 498.

52. The original Hebrew was rendered in the English translation as “loving peace but knows how to defend itself.” In the original, however, there is no “but.” Instead, the word “and” connects the qualities of loving peace and self defense.

53. The Proclamation declares that “THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November, 1947” and mentions the “onslaught launched against us.”

54. Avineri, Arlosoroff, 70. Arlosoroff continues: “Thus [the Arab extremists] were given an opportunity to inflate artifically a religious conflict, to manipulate the fanaticism and ignorance of the Arab masses and to mobilize for political purposes the dark forces of religious animosity.” Ibid.

55. I should also add that the history of the Holy Sites in Jerusalem is delicious material, including parliamentary debates, legislation, litigation, and criminal prosecutions. See, e.g, H.C. 223/67 Ben-Dov v. Minister of Religions, 22(1) P.D. 440 (1968); H.C. 222/68 National Circles v. Minister of Police, 24(2) P.D. 141 (1970); Cr.C. 173/69 State of Israel v. Denis Michael Ruhan, 68 P.M. 345 (1970); H.C. 292/83 The Temple Mount Faithful v. The Jerusalem Police Commander, 38(2) P.D. 449 (1984); H.C. 411/89 The Temple Mount Faithful v. The Jerusalem Police Commander, 43(2) P.D. 17 (1989). See also Nadav Shragai, Har Ha'meriva [The Temple Mount Conflict] (Jerusalem: Keter, 1995) and references there, and Segev, One Palestine Complete, 295.

56. See Avineri, Arlosoroff, 2; Shabtai Teveth, Retsah Arlozorov, 205–6.

57. Asher Maoz, “Historical Adjudication,” 576.

58. For a critical discussion of Israeli theories of “Arab criminality,” see Koren, Alina, “Criminalization of a Political Conflict: Crime within the Israeli Arab Population in the Fifties,” Plilim 8 (1999): 157–91.Google Scholar

59. However, Kasztner was the editor of OyKelet, an Israeli newspaper in the Hungarian language. It would be interesting to study the newspaper and its perception of Arabs and the Arab-Israeli conflict.

60. Haaretz, 7 November 1956. See also Bar-On, Mordechai, The Gates of Gaza: Israel's Road to Suez and Back, 1955–1957 (New York: Saint Martin's, 1994), 269.Google Scholar For a discussion of the significance of the Holocaust in Israeli consciousness in the context of the Suez war, see Segev, Tom, The Seventh Million: The Israelis and the Holocaust (New York: Hill and Wang, 1993), 296–98.Google Scholar

61. Kasztner was assassinated on March 4, 1957. Weitz, Haaish She'nirtsah Paamayim, 323.

62. Confirmation of the relationship between the anger at Ben-Gurion and Kasztner's murder may be found in Hecht, Perfidy, 205. See below, 428–29.

63. See also below, 431.

64. See, for example, Bracha, Oren, “Unfortunate or Perilous: The Infiltrators, the Law and the Supreme Court, 1948–1954,” Tel-Aviv University Law Review 21 (1998): 333–85.Google Scholar Bracha brilliantly analyzes the “problem of Arab infiltration” into Israeli territory in the 1950s. He shows that many of the “infiltrators” were refugees trying to return to their homes and demonstrates how the legal system developed classifications that depicted them as aliens illegally crossing the border. See also Hofnung, Menachem, Democracy, Law and National Security in Israel (Brookfield: Dartmouth, 1996)Google Scholar; Holzman-Gazit, Yifat, “Expropriation Law in the 1950s in Light of Zionist Ideology of Immigrant Absorption and Private Property,” in Land Law in Israel: Between Private and Public, ed. Dagan, Hanoch (Tel Aviv: Ramot Publishing, 1999), 223–52Google Scholar; Yifat Holzman-Gazit, “Immigration Policies, Housing Supply and Supreme Court Jurisprudence of Land Expropriation in Early Statehood,” in The History of Law in a Multi-Cultural Society; Kedar, Alexander, “Zman Shel Rov Zman Shel Miut: Karka, Leom Ve'diney Ha'hityashnut Ha'roheshet Be'yisrael [Majority Time, Minority Time: Land, Nation, and the Law of Adverse Possession in Israel],” Tel-Aviv University Law Review 21 (1998): 665–746Google Scholar; Alexander Kedar, “The Jewish State and the Arab Possessor, 1948–1967,” in The History of Law in a Multi-Cultural Society; Kedar, Alexander and Yiftachel, Oren, “Landed Power: The Making of the Israeli Land Regime,” Theory and Criticism; An Israeli Forum 16 (2000): 67–100Google Scholar; Shamir, Ronen, “Suspended in Space: Bedouins under the Law of Israel,” Law and Society Review 30 (1996): 231–57CrossRefGoogle Scholar; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (New York: SUNY Press, forthcoming)Google Scholar; Rouhana, Nadim N., Palestinian Citizens in an Ethnic Jewish State; Identities in Conflict (New Haven: Yale University Press, 1997).Google Scholar

65. Lahav, Judgment in Jerusalem, xiii.

66. See the full text of this paragraph below, 417–18.

67. Bernstein, Deborah, The Struggle For Equality: Urban Women Workers in Prestate Israeli Society (New York: Praeger, 1987).Google Scholar

68. Lahav, Pnina, “Conceptions of Sex Equality in the Debate over the Women's Rights Law,” Zmanim: Journal of History 46–47 (1993): 149–59.Google Scholar

69. E.g., Ada Maimon (sister of Rabbi Yehuda Leib Fishman Maimon, the noted religious leader who was a signatory to the Proclamation), Bebba Iddelson, Hasia Drori, Feiga Ilanit. On the Right one would include Esther Raziel Naor and Shoshana Raziel Naor.

70. More colloquially, people were fond of saying that “Golda was the only one with balls in the cabinet.” Golda Meir understood well the aura of male superiority emanating from this statement but failed to unlock its intrinsic cultural message. Fallaci, Oriana, Interview with History (Boston: Houghton Mifflin, 1976), 112.Google Scholar

71. Again, Golda Meir did see, even complained, that women were barely represented in the Knesset: “There aren't many women in our parliament, something that bothers me a lot. And these few women, let me assure you, are by no means less capable than men. In fact, the're often much more capable. So it's ridiculous that toward women there still exist so many reservations, so many injustices, that when a list is being drawn up for the elections, for example, only men's names get chosen. But is it all the fault of men? Wouldn't it be, at least partly, the fault of women too?” Fallaci, Interview with History, 113. Indeed, it was the fault of women. At the time of this interview Meir had tremendous power in her party and could have brought about the inclusion of more women. Instead, she conducted a vendetta against civil rights activist Shulamit Aloni, excluding her from the party list. In the 1974 elections Aloni ran on a civil rights platform (Ratz). Two feminists (herself and Marcia Friedman) were elected as members of the Knesset on this ticket.

72. Fallaci, Interview with History, 112.

73. The reader should know that Bilsky is one of Israel's leading feminists. See, e.g, Bilsky, Leora, “Giving Voice to Women: An Israeli Case Study,” Israel Studies 3.2 (1998): 47–79.CrossRefGoogle Scholar

74. Maoz, “Historical Adjudication,” 562: “The accused were acquitted because Mrs. Arlosoroff's testimony was not corroborated, as required by the prevailing Palestinian law … the Appeal Court even went so far as to state that had the case been heard in England … the conviction would rightly have been upheld.”

75. See Tevet, Retsah Arlozorov, 238–11; Maoz, “Historical Adjudication,” 562, n. 8. Apropos of the claim that it was the wife who murdered the husband, see the discussion of attempts to solve a murder mystery by implicating the beautiful wife in Kamir, Orit, “Judgment by Film: Socio-Legal Functions of Rashomon,” Yale Journal of Law and the Humanities 12 (2000): 39–88.Google Scholar

76. Weitz, Haaish She'nirtsah Paamayim, 271: “classmates followed [Suzy] calling her ‘daughter of a murderer, daughter of a Nazi’ … The situation at home was insufferable—the front of their building was covered with graffiti, the most gentle of which was ‘Kasztner is a murderer.’ In the store they sometimes refused to sell her groceries.” For Hanzi Brand, see ibid., 326.

77. In 1994 Giora Szenes, Hanna's brother, petitioned the High Court of Justice to have the Israel Broadcasting Authority remove a scene from a fictionalized television play about Kasztner, where Hanna Szenes was accused of having revealed information to the Hungarian police about the location of her two accomplices. The case triggered a judicial deliberation about the sanctity of “national legends.” The Court refused to intervene. See Maoz, “Historical Adjudication,” 626, n. 26.

78. It is, however, trae that women soldiers who served in the paratroopers forces, as secretaries or in other service capacity, sported a red beret as well. How much prestige was associated with the female red beret is debatable.

79. Quoted in Harshav, Benjamin, Language in Time of Revolution (Stanford: Stanford University Press, 1993), 136.CrossRefGoogle Scholar Thus it appears that the gendered division of labor in Israel's military was contemplated as early as 1905.

80. See Raday, Frances, ed., Maamad Ha'ishah Ba'hevrah Uva'mishpat [Women's Status in Law and In Society] (Jerusalem and Tel Aviv: Shoken, 1995)Google Scholar; Herzog, Hanna, Gendering Politics: Women in Israel (Ann Arbor: University of Michigan Press, 1999)CrossRefGoogle Scholar; Bilsky, Leora, “Giving Voice to Women: An Israeli Case Study,” Israel Studies 3 (1998): 47CrossRefGoogle Scholar; Kaddari, Ruth Halperin, “Two Who Are One, One Who Is Two: Maternal-Fetal Relationship and Substance Abuse during Pregnancy,” Plilim 6 (1997): 261–338Google Scholar; Ruth Halperin Kaddari, “Tav Lemeitav Tan Du Milmeitav Armalu': Women's Perpetual Marital Preference and Their Construction as Other in Jewish Law,” in Jewish Legal Writings by Women, vol. 2, ed. Micah D. Halpern and Chana Safrai (forthcoming); Barak-Erez, Daphna, “Al Simetriya Ve'netraliyut Be'ikvot Parashat Nachmani [Symmetry and Neutrality: Reflections on the Nachmani Case],” Tel Aviv University Law Review 20 (1996): 197–219Google Scholar; Barak-Erez, Daphna, “Ha'isha Ha'svira [The Reasonable Woman],” Plilim 6 (1997): 115–35Google Scholar; Kamir, Orit, “‘Ve'im Baal-Kana’: Sipurey ‘Beila’ Ve'hibalut Be'hok Ha'onshin [The Rhetoric of ‘Husbanding’ in Israel's Penal Code and its Cultural Significance],” Plilim 7 (1998): 121–60Google Scholar; Kamir, Orit, “Dignity, Respect and Equality in Sexual Harassment Law: Israel's New Legislation,” (New Haven: Yale University Press, forthcoming)CrossRefGoogle Scholar; Almog, Shulamit, “A1 Nashim, Tsava Ve'shivyon [On Women, Army and Equality],” Law and Government 3 (1996): 631–47Google Scholar; Ben-Israel, Ruth, Equal Opportunities and Employment Discrimination (Tel Aviv: Open University, 1998).Google Scholar

81. Lipshitz, Gabriel, Country on the Move: Migration to and within Israel, 1948–1995 (Dordrecht, Boston, and London: Kluwer, 1998), 43.CrossRefGoogle Scholar A new term was applied to these immigrants, “Olim” (those who ascend). The term, however, does not connote the heroic conduct associated with the ma'apilim. See above, note 14.

82. Whereas the term “members of the Eastern communities” treats Mizrahim as members of different sects (in Hebrew “Eda” is both community and sect), in contradistinction to Ashkenazim who are thereby implied to represent the baseline (sects or communities being the exception), the term Mizrahim equalizes this population with the Ashkenazim, at least terminologically.

83. My friend Laura Kalman wanted to know why it was necessary to add that Mr. Shouchman was good and honest. I do it in order to avoid a Manichaean approach to the Ashkenazi/Sephardie divide. While Mr. Shouchman was prejudiced, he was not a bad man. Shopkeepers have ample opportunity to deceive their clients. He never did. He was also generous with credit and a friendly fellow.

84. They were Saadia Kobashi, of Yemeni descent, and Bechor Shetreet, scion of an old Sephardic family rooted in Palestine. Shetreet served as Minister of Police and Minorities in the provisional Israeli government and as Minister of Police in the first Israeli cabinet. He fought in vain to include a sephardic judge in the first group appointed to the Supreme Court.

85. See, e.g., Pikar, Avi, “The Beginning of Selective Immigration in the 1950s,” Iyunim Bi'Tkumat Israel 9 (2000): 338–94.Google Scholar

86. See above, note 33.

87. Harris, “Legitimizing the Imprisonment of Poor Debtors.”

88. Maoz, “Historical Adjudication,” 564.

89. Justice Haim Cohn, in a tribute to Justice Bechor, praises at length his professionalism, modesty, and aristocratic demeanor. Cohn does say that Bechor made significant contributions to the Court's jurisprudence but remains enigmatic about any particular Bechor opinions. Cohn, Haim, “About David Bechor,” Hapraklit 33 (1981): 306–7.Google Scholar

90. The reader may or may not wish to draw a comparison with the Mizrahi Jews depicted as “wild animals” in the anecdote above or with the theory of the “noble savage.”

91. See Lahav, Judgment in Jerusalem, 124–25.

92. The stereotype of “Romani Ganav”—A Romanian is a thief—was quite prevalent in the 1950s and has not totally faded.

93. See Kamir, “La-‘Megila’ Yesh Shtey Panim,” 476–77.

94. Gavison, Ruth, “The Controversy over Israel's Bill of Rights,” Israel Yearbook on Human Rights 15 (1985): 113–54Google Scholar; Rubinstein, Amnon, Ha'mishpat Ha'constitutsyoni Shel Medinát Yisrael [The Constitutional Law of the State of Israel] (Jerusalem and Tel Aviv: Shoken), 382–408Google Scholar and references there.

95. See Tushnet, Mark, “Book Review: The Universal and the Particular in Constitutional Law: An Israeli Case Study,” Columbia Law Review 100 (2000): 1327–46.CrossRefGoogle Scholar

96. See Chafee, Zecharia Jr, Free Speech in the United Sates (Cambridge: Harvard University Press, 1948)Google Scholar; Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Belknap Press, 1964)Google Scholar; Rabban, David M., “The Ahistorical Historian: Review Essay: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37 (1985): 795–856.CrossRefGoogle Scholar See also Ellis, Richard E., “The Impeachment of Samuel Chase,” in American Political Trials, ed. Belknap, Michal R. (Westport and London: Greenwood, 1994), 57–76.Google Scholar See also the Aaron Burr trial: Ex Parte Bollman. 8 U.S. 75(1807); Beirne, Francis F., Shout Treason: The Trial of Aaron Burr (New York: Hastings House, 1959).Google Scholar

97. See Youm, Kyu Ho, Press Law in South Korea (Ames: Iowa State University Press, 1996), 153 and references there.Google Scholar

98. It is quite likely that from this perspective the Zionists were the victors. Even the ultra orthodox now accept the state as well as its legitimacy as a fait accompli. Thus, according to the thesis of Rabbi Yoel Teitelbaum, the influential Satmar leader, the state of Israel is “an obstacle to Messianic redemption” but its disappearance before redemption will occur “only via a superior force emanating from His Blessed Name and not at the hand of the Nations.” Rubin, Israel, Satmar: Two Generations of an Urban Island (New York: Peter Lang, 1997), 205.Google Scholar

99. The statute was invalidated as being in violation of the establishment clause. Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). See also Minow, Martha, “The Constitution and the Subgroup Question,” Indiana Law Journal 71 (1995): 1–25Google Scholar; Baxter, Hugh, “Managing Legal Change: The Transformation of the Establishment Clause Law,” UCLA Law Review 46 (1998): 343–458.Google Scholar

100. See Weitz, Haaish She'nirtsah Paamayim, 34, 211–12; Dinur, Kastner, 37, 154.

101. One should reflect on whether, given the revival of the Satmar community, the rescue of the rabbi by Kasztner was a reasonable step.

102. The almost miraculous restoration of the Satmar community may call for a deeper reflection on Hanna Arend's denunciation of the methods of saving the few. Arendt rhetorically condemns Kasztner's choice of “those who worked all their lives for the [community].” Arendt, Eichmann in Jerusalem, 118. Rabbi Teitelbaum was saved precisely because he fit this category. It stands to reason that the task of community rebuilding in the United States would have been much harder had the rabbi been sent to Auschwitz and that this was the reason why he accepted the offer to embark the Bergen-Belsen train. The official history of Satmar does not mention either Kasztner or the Bergen-Belsen train: “Between May 1944 and late 1945 Jewish life in Hungary… was totally extinct. Of the Satmarer Hasidim, a great many were dead… The Rov, however, was saved, ironically through the efforts of Zionist leaders who were able to bribe a few key German officials and to transport a number of Jews to Switzerland. The Rov was in this transport.” Rubin, Satmar, 47.

103. In 1959 (two years before the Eichmann trial) Rabbi Teitelbaum offered the thesis that the Holocaust was brought about due to the Zionist violation of this covenant. Tietelbaum, Yoel, Va'yoel Moshe (New York: Jerusalem, 1959), 5.Google Scholar See also Teitelbaum, Yoel, Sefer Gehaley Esh [Book of the Fire Embers], (New York, 1984)Google Scholar where the Rabbi states that Zionist leaders failed to take advantage of the Nazi offer to spare Jewish lives for money and that a small part of the Zionist policy was uncovered in the Kasztner trial. Ibid., 87. On the tension between the Zionist and Ultra Orthodox positions toward the Jewish state, see Harel, Alon, “Liberalism versus Jewish Nationalism: A Case for the Separation of Zionism and State,” Democratic Culture 3 (2000): 89.Google Scholar

104. According to the Proclamation, the Jews were “forcibly exiled from their land…”

105. The Proclamation states: “Accordingly we,… by virtue of our natural and historic right and on the strength of the resolution of the United-Nations general assembly…”

106. “ERETZ-ISRAEL was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped.”

107. See Kamir, “La-‘Megila’ Yesh Shtey Panim,” 490. The official English translation spares the reader this historic ambiguity and states “PLACING OUR TRUST IN THE ALMIGHTY.”

108. Thus, for example, in the Shalit case Justice Moshe Landau declared that with the ultra-Orthodox, the “denigrators from within” who “do not recognize the state'de jure'… we have no discourse on matters of state and religion.” H.C. 58/68 Shalit v. the Minister of the Interior and Population Registrar, 23(1) P.D. 477, 518 (1969). On the exemption of Yeshiva students from military service, see Rubinstein, Ha'mishpat Ha'constitutsyoni, 302–5 and references there. The most recent of a series of Supreme Court decisions regarding this issue is H.C. Amnon Rubinstein v. Minister of Defense, 52(5) P.D. 481 (1998).

109. Ron Harris, “Hizdamnuyot Historiot Ve'hamatzot She'beheisech Da'at: Al Shiluvo Shel Ha'mishpat Ha'ivri Ba'mishpat Ha'yisraeli Be'et Hakamat Ha'medina [Historical Opportunities and Absent-Minded Omissions. On the Incorporation of Hebrew Law into Early Israeli Law],” in State and Religion in Israel, 1948–1967, ed. Mordechai Bar-On (forthcoming); Likhovski, “The Invention of ‘Hebrew Law’”; Shamir, Ronen, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 2000)Google Scholar; Ronen Shamir, “The Hebrew Law of Peace: The Demise of Law-as-Culture in Early Mandate Palestine,” in The History of Law in a Multi-Cultural Society.

110. For Halevi's background and education, see Weitz, Haaish She'nirtsah Paamayim, 108. For Agranat's, see Lahav, Judgment in Jerusalem, 3–39. For the German influences on Israel's Supreme Court, see Oz-Salzberger, Fania and Salzberger, Eli, “The Secret German Sources of the Israeli Supreme Court,” Israel Studies 3.2 (1998): 159–92.CrossRefGoogle Scholar

111. Bilsky “Judging Evil,” 124.

112. Ibid., 145; Virgil, , The Aeneid trans. Humphries, Rolfe (New York: Macmillan, 1987), 42.Google Scholar

113. Consider in this context Agranat's analysis in the Kasztner appeal of the use of history in trials, in which he admonishes the judge to “put himself in the shoes” of those he judges. Agranat clearly did not think that Halevi met this injunction. Cr.A. 232/55 Attorney General v. Gruenvald, 12(3) P.D. 2017, 2058 (1958). For a provocative defense of Halevi and a critique of Agranat, see Shaked, Michal, “History in the Courts and the Courts in History—The Kasztner Opinions and the Narratives of History,” Alpayim 20 (2000): 36.Google Scholar

114. Overturned on appeal in Cr.A. 1/48, Sylvester v. Attorney General, 1 P.D. 5 (1948). See also Barak-Erez, Dafna, ed., Mishpatim Rishonim: Sihot Be'ikvot Piske-Din Shel Bet-Ha'mishpat Ha-Elyon Ba'shanah Ha'rishonah Le'hivasdo [First Judgments: Reflections upon Decisions of the Israeli Supreme Court During the First Year of Israel's Independence], (Tel Aviv: Hakibbutz Hameuchad, 1999), 9–33.Google Scholar

115. See Weitz, Haaish She'nirtsah Paamayim, 109–10. In this trial the paths of the three protagonists of the Kasztner trial first crossed. Halevi presided as head of the panel, Haim Cohn was the prosecuter, and Shmuel Tamir defended the accused. See ibid.; Maoz, “Historical Adjudication,” 585.

116. The metaphor of pacts with the devil, is, however, quite endemic to the Israeli psyche. See, e.g., Avineri, Arlosoroff, 1, discussing the reaction of right-wing circles to Arlosoroff's transfer agreement: “This initiative… was virulently attacked by the…right wing…who saw it as an ignoble pact with the devil.”

117. Agranat said: “My main aim here is to emphasize our duty… to do everything possible to detach ourselves from the climate of ‘prejudice’ [sic] that grew around the issues before us, lest we become its victims. A hundred and fifty years ago Chief Justice John Marshall admonished in a famous treason trial, and the United States Supreme Court repeated his words as recently as 1944, that—‘as there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made, a deliberate and temperate inquiry.’ This admonition fits, in my opinion, the general approach that we should take concerning our subject matter.” Attorney General v. Gruenvald, 2060.

118. Silberstein, The Postzionism Debates, 2.

119. Ibid., 100.

120. See, for example, Kimmerling, “Academic History Caught in the Cross-Fire”; Ram, “Zionist Historiography and the Invention of Modern Jewish Nationhood.”

121. See, for example, Ohana, David, ha-Yisreelim ha-aharonim [The Last Israelis] (Tel Aviv: ha-Kibuts ha-meuhad, 1998)Google Scholar; Ohana, David and Wistrich, Robert, eds., The Shaping of Israeli Identity: Myth, Memory, and Trauma (London and Portland: Or, 1995)Google Scholar; Zerubavel, Yael, Recovered Roots: Collective Memory and the Making of Israeli National Tradition (Chicago: University of Chicago Press, 1995).Google Scholar

122. Some of the recent significant cases are: H.C. 6698/95 Qaadan v. Minhal Mekarkai Israel, 54(1) P.D. 258 (2000) (holding that Israeli Arabs cannot be discriminated against in state allocation of land); Cr.F.H. 7048/97 Plonim v. Minister of Defense, 53(1) 721 (2000) (upholding the right of due process of Lebanese held as hostages by the IDF); H.C. 5100/ 94, 4045/95 The Public Committee against Torture in Israel v. The Government of Israel, Takdin Elion 99(3) 458; H.C. 3358/95 (outlawing the practice of torture by the security services); Anat Hofmanv. The General Manager of the Prime-Minister Office, Takdin Elion 2000(1) 825 (upholding right of women to pray collectively at the Western Wall). On Qaadan, see Kedar, Alexander, “A First Step in a Difficult and Sensitive Road: Preliminary Observations on Qaadan v. Katzir,” Israel Studies Bulletin 16 (2000): 3.Google Scholar

123. Israel Harel, “Is Bagatz on our side or on our enemy's?” Haaretz, 27 April 2000 (Internet edition). See also interview with former Chief Justice Moshe Landau, Haaretz Magazine, 6 October 2000, p. 6: the Qaadan case, “opens the gate to postzionist views and to hostile groups that might abuse it.”

124. Chief Justice Aharon Barak, On Tolerance, speech delivered on 24 May 2000 (on file with the author).

125. Chief Justice Aharon Barak, The State of Israel as a Jewish and Democratic State, speech at Tel Aviv University, 21 May 2000 (on file with the author).

126. Strum, Philippa, Brandeis: Beyond Progressivism (Lawrence: University Press of Kansas, 1993), 115.Google Scholar

127. Akzin, Benjamin, “Felix Frankfurter—In Memoriam,” Israel Law Review 2 (1967): 307–8.Google Scholar

128. See Lahav, Judgment in Jerusalem; Gross, Aeyal M., “The Politics of Right in Israeli Constitutional Law,” Israel Studies 3.2 (1998): 80–118.CrossRefGoogle Scholar

129. Hazony, Yoram, The Jewish State: The Struggle for Israel's Soul (New York: Basic Books, 2000).Google Scholar The book is advertised as “A New Republic Book,” meaning that it is backed by the powerful magazine.

130. Baruch Kimmerling, “Book Review,” Haaretz, 9 August 2000 (international edition); See also Miron Benvenisti, “Why Do We Argue with Hazony?” making similar points, Haaretz, 21 September 2000.

131. Moglen, “Making History,” 615–16. Sharon v. Time Inc., 559 F.Supp. 538 (S.D.N.Y. 1984).

132. Notice the play on the meaning of the name Tamir (née Katznelson), which, according to Hecht, in Hebrew means “tall and straight.” Most Hebrew speakers would recognize “tamir” as merely “tall.”

133. If one assumes that Hecht could not read Hebrew, then it is quite likely that much of the materials in the book were supplied to him by Tamir and his assistants. Again, the co-operation between Israelis and Americans for the purpose of managing public opinion in both countries regarding the desirable policies for the state of Israel is clear.

134. Hecht, Perfidy, 207, 183. The clever references to the Emancipation Proclamation and Uncle Tom were meant to appeal to the American Jewish audience of the early 1960s, mostly symphathetic to the civil rights movement.

135. Hecht, Perfidy, 256, n. 9: “In 1933… Arlosorov [sic] was assassinated on the beach of Tel Aviv. Months later two Arabs confessed that they were the actual killers. However, a few hours after the assassination David Ben-Gurion… declared that he was convinced that Arlosorov was assassinated by Jewish revisionists… The Jewish Agency and Mapai Party collaborated with the British Police in concocting murder charges against three revisionists… After a lengthy trial… the three were found innocent by a British Court and acquitted … in the meantime, Ben-Gurion and his disciples had exploited their empty murder charges to get a strong grip over the Zionist Organization.” This description is full of insinuations and misleading information (see, e.g., notes 9, 29) but is quite typical of the right-wing version of the events surrounding Arlosoroff's murder.

136. E.g., Hecht, Perfidy, 204: “But there is one fact in the complex business that is obvious to all—Ben-Gurion's flair for obedience to anyone resembling an Anglo-Saxon. A man's soul can be permanently conditioned no less than a dog's salivary glands. The Ben-Gurion soul has practiced bowing to English-speaking masters for thirty five years. And it must bow to Eisenhower's Kansas accent as automatically….” The reference here is to Ben-Gurion's acceptance of President Eisenhower's ultimatum to retreat from the Sinai. See above, 405.

137. Ibid., 190. For a discussion of American-Jewish attitudes towards the Holocaust, during and after World War II, see Novick, Peter, The Holocaust in American Life (Boston: Houghton Mifflin, 1999).Google Scholar

138. The advertisement campaign for Perfidy included two full-page ads in the New York Times. Thirty-five thousand copies of the book were sold. Katz, Shlomo, “Ben Hecht's Kampf,” Midstream (Winter 1962): 92,98.Google ScholarPerfidy has recently been republished by Milah Press. Could it be a part of the kulturkampf against post-Zionism?

139. Hecht, Perfidy, 202, 270–76, n. 176. Hecht tells us that “An equally depressing matter on the Ben-Gurion agenda was the soon due Supreme Court decision on the Kastner business. The general feeling was it would be a split decision—which would be bad for the government clique. The decision, when it was delivered, was that—a split one [in a footnote Hecht quotes from the opinions of the justices, misspelling the names of three of the five]. All five Supreme Court judges upheld Judge Halevi's verdict on the “criminal and perjurious manner” in which Kastner after the war had saved Nazi war criminal Becher “without justification.” Two of the judges further upheld Judge Halevi's finding that Kasztner had collaborated with the Nazis during the war. Three did not. The theme throughout Perfidy was collaboration. The fact that the Supreme Court rejected the charge of collaboration is almost hidden in the clever phraseology. Furthermore, as Maoz informs us, four out of the five justices agreed that the charge of collaboration was not “true” –a small but significant difference for those who try to find meaning in split opinions. See Maoz, “Historical Adjudication,” 592–93. Hannah Arendt repeats this error when she practically ignores the Supreme Court's opinion in the Kasztner trial, devoting to it only one paragraph. She was wrong to state that “Israel's Supreme Court had not only accepted the arguments of the prosecution, it had adopted its very language.” Arendt, Eichmann in Jerusalem, 227.

140. Only selected opinions of the Supreme Court have been translated into English. My experience has been that one cannot rely on those selections to reflect the full and nuanced state of Israeli jurisprudence.

141. Yoram Shachar, Israel's foremost expert on the history of the Proclamation, assured me in a telephone conversation, that the English translation is merely the product of hasty work on the day the Proclamation was announced.

142. Horwitz, “Writing Legal History in a Post-Formalist World,” The History of Law in a Multi-Cultural Society.

143. The training would begin on the graduate level and LL.M. and doctoral theses would address such issues as Res Ipsa Loquitur or Estoppel. Also following the German lead, usage of Latin was encouraged. Compare this culture with the Americanized legal culture of Israel today.

144. See Mautner, Yeridat Ha'formalizm.

145. Tom Grey, The New Formalism <http://papers.ssm.com/paper.taf?ABSTRACT_ID=200732>

146. Kalman, Laura, “The Power of Biography,” Law and Social Inquiry 23 (1998): 503.CrossRefGoogle Scholar