After the Mandate: Making the State of Israel’s Legal System, 1948-1960

Abstract

After the Mandate examines the legal history of the transition from British Mandate Palestine to the state of Israel. Focusing on how Israeli judges, lawyers, politicians, and bureaucrats appropriated, modified, and, at times, resisted the inherited mandatory legal system during their state’s first decade, it argues that this transition was a contested and evolving process filled with uncertainty, negotiation, and competing understandings of the British mandatory past. This complexity, in turn, reflected broad and deep Zionist-turned-Israeli ambivalences toward the British administration in Mandate Palestine and its legal system, the British Empire, and, ultimately, the meaning and nature of political and legal independence. This project focuses on four constitutionally significant questions and domains that were characterized by this fundamental uncertainty. First, the international legal status of those territories in Mandate Palestine that were conquered by the Israeli military in the 1948 War but lay beyond the borders of the Jewish State proposed by the United Nations 1947 Partition Plan. Second, the interpretation of Section 11 of the Law and Administration Ordinance, 1948, which stipulated that “the law which existed in Eretz-Yisra’el on the 5th Iyar, 5708 (14th May, 1948) shall remain in force,” and the implications of this provision on the legal and temporal relationship between Mandate Palestine and the state of Israel. Third, the fate of stare decisis and binding judicial precedent in Israeli law. Fourth, the construction of the Israeli legal mechanisms that were used to expropriate and transfer Palestinian property from the Custodian of Absentee Property to the Development Authority. By foregrounding the myriad ways in which Israeli law was shaped by continued negotiation with its mandatory legal legacy and by focusing on how different Israeli actors viewed their legal and constitutional order vis-à-vis their mandatory past in diverse and often inconsistent ways, this study seeks to complicate and move beyond the binary debate that casts the Israeli legal system as either continuous with or discontinuous from that of its predecessor. The story of this project, then, is the story of how the Israeli legal system was a post-mandatory legal order.