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Peripheral Vision: Polish-Jewish Lawyers and Early Israeli Law

  • Assaf Likhovski
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For advice and comments on earlier drafts, he thanks Marek Karliner, Pnina Lahav, Doreen Lustig, Menny Mautner, Orit Rozin, Aviram Shahal, Scott Ury, Mila Versteeg, Steven Wilf, and the participants of the 4th biennial European Society for Comparative Legal History conference in Gdańsk, the 2016 American Society for Legal History Annual Conference, and the law and history workshop at the Interdisciplinary Center Herzliya. He also thanks the two anonymous reviewers of Law and History Review. He thanks Udi Becker, Shani Schnizer, and Noa Shmueli for research assistance. He is especially grateful to Katarzyna Czerwonogóra for her assistance in the collection and translation of the Polish sources used in this article, and for her assistance in research for this article. He also thanks Aliza Haiman, Rami Shtivi, Edya Skolsky-Gilad, and Tsfira Stern for assistance in collecting the Israeli archival materials, and Amanda Dale for editorial assistance. Research for this article was supported by Israel Science Foundation research grant no. 405/15. Place names are based on the rules used by the editors of the book series Polin: Studies in Polish Jewry, ed. Antony Polonsky (Oxford: The Littman Library).

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1. See, for example, Even-Zohar, Itamar, “The Emergence of a Native Hebrew Culture in Palestine: 1882–1948,” Poetics Today 11 (1990): 175–91. For an account of a similar phenomenon elsewhere see, for example, Fisher, David Hackett, Albion's Seed: Four British Folkways in America (New York: Oxford University Press, 1989).

2. See, for example, Cherniavsky, Irith, Be-‘Or Shinehem: ‘Al ‘Aliyatam shel Yehudey Polin lifney ha-Sho'ah (Tel Aviv: Resling, 2015).

3. The term “influence” is now often deemed too crude and essentializing to capture various types of cultural intermingling, and other terms such as “assimilation,” “aculturation,” “appropriation,” “embeddedness,” “entanglement,” “hybridity,” and “fusion” are therefore used instead. For works focusing specifically on Jewish–Gentile cultural intermingling see Biale, David, ed. Cultures of the Jews: A New History (New York: Schoken Books, 2002), preface; Rosman, Moshe, How Jewish is Jewish History? (Oxford: Littman Library, 2007), 82110; Satlow, Michael L., “Beyond Influence: Toward a New Historiographic Paradigm,” in Jewish Literatures and Cultures: Context and Intertext, ed. Norich, Anita and Eliav, Yaron Z. (Providence: Brown Judaic Studies, 2008), 3753; and Ury, Scott and Bartal, Israel, “Between Jews and Their Neighbours: Isolation, Confrontation and Influence in Eastern Europe,” in Polin 24: Jews and Their Neighbours in Eastern Europe, ed. Bartal, Israel, Polonsky, Antony, and Ury, Scott (Oxford: Littman Library, 2012), 330.

4. See Silber, Marcos, “Umah Netulat Medinah: Ha‘avarah Hadadit shel Ra‘ayonot beyn ha-Leumiyut ha-Polanit la-Tsiyonut,” Zion 80 (2015): 471502. See also Ury, Scott, Barricades and Banners: The Revolution of 1905 and the Transformation of Warsaw Jewry (Stanford: Stanford University Press, 2012) (a general discussion of mutual cultural transfers between Jews and Poles). Two recent conferences, one held at Saitama University in January 2015 (organized by Taro Tsurumi) and the other at Johns Hopkins in May 2016, were devoted to Israel's East European heritage.

5. Shavit, Yaacov, “Politics and Messianism: The Zionist Revisionist Movement and Polish Political Culture,” Studies in Zionism 6 (1985): 229–46; Snyder, Timothy, Black Earth: The Holocaust as History and Warning (New York: Tim Duggan, 2015), 5876; and Shindler, Colin, The Rise of the Israeli Right: From Odessa to Hebron (New York: Cambridge University Press, 2015), 123–25, 156–57, 317.

6. On the influence of the procedure of the Sejm on the rules of procedure of the Israeli parliament, see Bacon, Gershon, “Rehov Nalewki be-Tel Aviv? ‘Al ha-Moreshet ha-Politit shel Yahadut Mizrah-Eropah ba-Yishuv ube-Medinat Yisrael,” in Ba-Derekh ha-Demokratit: ‘Al ha-Mekorot ha-Historiyim shel ha-Demokratyah ha-Yisre'elit, ed. Gal, Alon (Be'er Sheba: Ben-Gurion Press, 2012), 153–68. See also Religious Zionism Archive (hereafter RZA), Bar-Ilan University, PA 15, talk between Netanel Lorch and Zorach Warhaftig, February 15, 1981, at 12; and Sroka, Łukasz Tomasz and Sroka, Mateusz, Polskie korzenie Izraela (Kraków: Austeria, 2015), 200–23. On citizenship, see Engel, David, “Citizenship in the Conceptual World of Polish Zionists,” Journal of Israeli History 27 (2008): 191–99. See also Weiss, Yfaat, “Ha-Golem ve-Yotsro: O Eykh Hafakh Hok ha-Shvut et Yisrael le-Medinah Multi-Etnit,” Teorya u-Vikoret 19 (2001): 4569 (on the Polish influence on the Israeli Law of Return of 1950). On Polish influence on Israeli everyday life (dress, manners, consumption, sexual mores), see Helman, Anat, Becoming Israeli: National Ideals and Everyday Life in the 1950s (Waltham: Brandeis University Press, 2014), 177, 234 n. 63; Helman, Anat, Or va-Yam Hekifuhah: Tarbut Tel Avivit bi-Tkufat ha-Mandat (Haifa: Haifa University Press, 2007), 57, 119; and Helman, Anat, Bigdey ha-Aretz ha-Hadashah: Medinat Yisrael ha-Tse‘irah bi-Re'i ha-Levush veha-Ofnah (Jerusalem: Shazar, 2012), 169, 176, 272.

7. See, for example, Shachar, Yoram, Harris, Ron, and Gross, Meron, “Nohagey Histamkhut shel Bet ha-Mishpat ha-‘Elyon: Nituhim Kamutiyim,” Mishpatim 27 (1996): 119217; and Likhovski, Assaf, Law and Identity in Mandate Palestine (Chapel Hill: University of North Carolina Press, 2006).

8. See, for example, Lahav, Pnina, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997); and Lahav, Pnina, “American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?Theoretical Inquiries in Law 10 (2009): 653–97.

9. Oz-Salzberger, Fania and Salzberger, Eli, “The Secret German Sources of the Israeli Supreme Court,” Israel Studies 3 (1999): 159–92; and Sela-Sheffy, Rakefet, “Integration through Distinction: German–Jewish Immigrants, the Legal Profession and Patterns of Bourgeois Culture in British-Ruled Jewish Palestine,” Journal of Historical Sociology 19 (2006): 3459.

10. On the influence of Russian and Soviet law, see Kedar, Nir, “Ben-Gurion's Mamlakhtiyut: Etymological and Theoretical Roots,” Israel Studies 7 (2002): 117–33 (tracing the impact of nineteenth-  and early-twentieth-century Russian ideas on the thought of Israel's first Prime Minister, David Ben-Gurion); and Shamir, Ronen, “The Comrades Law of Hebrew Workers in Palestine: A Study in Socialist Justice,” Law and History Review 20 (2002): 279, 286–87 (briefly noting the influence of the Soviet Civil Procedure Code on the procedure of the Comrades’ Courts, a court system established by socialist Jews in 1920s Palestine). The only work that specifically discusses the Polish background of an Israel lawyer is Menachem Raniel, “Ish Midot: Nesi Beyt ha-Mishpat ha-‘Elyon Yitzhak Kahan u-Tfisato et ha-Mishpat veha-Shofet” (PhD diss., Haifa University, 2012) (a biography of Israeli Chief Justice Yitzhak Kahan, who studied law in interwar Lviv).

11. For a detailed discussion, see Ury, Scott, “Who, What, When, Where, and Why is Polish Jewry? Envisioning, Constructing, and Possessing Polish Jewry,” Jewish Social Studies 6 (2000): 205–28.

12. A Codification Commission established in 1919 was appointed to accomplish this task. It embarked on a process of piecemeal legislation, meant to gradually unify Polish law. Some of the new enactments created by this commission were promulgated before World War II. For example, a Code of Civil Procedure was enacted in 1930, a new criminal code was enacted in 1932, a code dealing with the law of obligations was enacted 1933, and a new commercial code was enacted in 1934. Other enactments (such as codes dealing with property or family law) were only promulgated after 1945. In addition to these codes, legislation dealing with topics such as taxation, labor, and social rights was also enacted during the interwar period. A detailed survey of the various subfields of interwar Polish law is found in Hełczyński, Bronisław, “The Law in the Reborn State,” in Polish Law Throughout the Ages, ed. Wagner, Wenceslas J. (Stanford: Hoover Institute Press, 1970), 139–76. See also Bardach, Juliusz, Leśnodorski, Bogusław, and Pietrzak, Michał, Historia ustroju i prawa polskiego (Warsaw: PWN, 1994), 552–54. It is interesting to note that a similar method of piecemeal replacement of civil law using both the local legal heritage and comparative legal research was also adopted in Israel in the 1950s. See Likhovski, Assaf, “Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling,” Theoretical Inquiries in Law 10 (2009): 619–51.

13. See generally Likhovski, Law and Identity; Sharafi, Mitra, “A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire,” Law and Social Inquiry 32 (2007): 1059–94; Mack, Kenneth W., Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, MA: Harvard University Press, 2012); Mermelstein, Ari, Woeste, Victoria Saker, Zadoff, Ethan, and Galanter, Marc, eds. Jews and the Law, (New Orleans: Quid Pro Press, 2014), 359–83; Sharafi, Mitra, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (New York: Cambridge University Press, 2014); and Likhovski, Assaf, “Loyal Opposition? Minorities and State Law,” Law and Social Inquiry 42 (2017): 1224–30.

14. Echoing the semantic debate in intellectual history about the notion of influence (see note 3), comparative law scholars debate the exact terms that should be used to designate the process of the movement of legal ideas across boundaries. Some of the terms used are “adaption,” “borrowing,” “circulation,” “diffusion,” “entanglement,” “influence,” “migration,” “reception,” “transfer,” and “transplantation.” In this article, I use the term “transplantation” simply because it is one of the most prevalent terms to designate this process. The term “periphery” is also problematic. There are various types of “peripheries,” for example, territories distant from state capitals, or from centers of empires, but also whole states that are politically or culturally marginal. In addition, the concept of “periphery” is relational, and thus changes its meaning depending on the “core” and “periphery” discussed (this sometimes leads to a discussion of a third type of category: semi-periphery).

15. Watson, Alan, Legal Transplants: An Approach to Comparative Law, 2nd ed. (Athens, GA: University of Georgia Press, 1993); Nelken, David, “Toward a Sociology of Legal Adaptation,” in Adapting Legal Cultures, ed. Nelken, David and Feest, Johannes (Oxford: Hart, 2001), 754; and Graziadei, Michele, “Transplants and Receptions,” in The Oxford Handbook of Comparative Law, ed. Reimann, Mathias and Zimmerman, Reinhard (Oxford: Oxford University Press, 2006), 440–75.

16. See, for example Twining, William, “Social Science and Diffusion of Law,” Journal of Law and Society  32 (2005): 203–40; Berkowitz, Daniel, Pistor, Katharina, and Richard, Jean-Francois, “The Transplant Effect,” American Journal of Comparative Law 51 (2003): 163203; Miller, Jonathan M., “A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process,” American Journal of Comparative Law 51 (2002): 839–85; and Likhovski, “Argonauts”.

17. See, for example, Kennedy, Duncan, “Three Globalizations of Law and Legal Thought: 1850–2000,” in The New Law and Economic Development: A Critical Appraisal, ed. Trubek, David M. and Santos, Alvaro (New York: Cambridge University Press, 2006), 1973. Kennedy does acknowledge that sometimes legal ideas created in peripheries can be imported back to the center, as was the case with nineteenth century American constitutional law, which was exported after 1945 to places such as Germany. However, his account seems to imply that the process will only occur once the periphery becomes the center of a new empire. Some additional examples of histories of legal transplants that are also based on the conventional model are Histories of Legal Transplantations,” Theoretical Inquiries in Law 10 (2009): 299743; Spamann, Holger, “Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law,” Brigham Young University Law Review 6 (2009): 1813–78; Duve, Thomas, ed. Entanglements in Legal History: Conceptual Approaches, (Frankfurt am Main: Max Planck Institute for European Legal History, 2014); and Pihlajamäki, Heikki, “Comparative Contexts in Legal History: Are We All Comparatists Now?”  Seqüência: Estudos Jurídicos e Políticos 70 (2015): 57, 6465. For brief critiques of the conventional core/periphery model, see Yves Dezalay and Bryant Garth, “The Import and Export of Law and Legal Institutions: International Strategies in National Palace Wars,” in Adapting Legal Cultures, 241, 246; and Menski, Werner, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, 2nd ed. (Cambridge: Cambridge University Press, 2006), 5051.

18. See, for example, Viswanathan, Gauri, Masks of Conquest: Literary Study and British Rule in India (New York: Columbia University Press, 1989); and Mitchell, Timothy, Rule of Experts: Egypt, Techno-Politics, Modernity (Berkeley: California University Press, 2002), 67. On histories of colonial knowledge, see, generally, Marchand, Suzanne, “Has the History of the Disciplines Had its Day?” in Rethinking Modern European Intellectual History, ed. Moyn, Samuel and McMahon, Darrin M. (New York: Oxford University Press, 2014), 130, 143–44. On the relevance of this work to the study of legal transplants see, for example, Dorsett, Shaunnagh, “How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand,” New Zealand Journal of Public and International Law 12 (2014): 103, 105 n. 6.

19. See Baxi, Upendra, “The Colonialist Heritage,” in Comparative Legal Studies: Traditions and Transitions, ed. Legrand, Pierre and Munday, Roderick (Cambridge: Cambridge University Press, 2003), 4675. See also Kolsky, Elizabeth, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 23 (2005): 631706; Chan, Cheong-Wing, Wright, Barry and Yeo, Stanley, eds. Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform (Farnham: Ashgate, 2011); and Wright, Barry, “Renovate or Rebuild? Treatises, Digests, and Criminal Law Codification,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Fernandez, Angela and Dubber, Markus D. (Oxford: Hart, 2011), 181201.

20. See Blum, Binyamin, “The Hounds of Empire: Forensic Dog Tracking in Britain and its Colonies, 1888–1953,” Law and History Review 35 (2017): 621, 622–24, 664–65.

21. See, for example, Lorca, Arnulf Becker, Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge: Cambridge University Press, 2015); Sands, Phillipe, East West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ (Knopf: New York: 2016); Armitage, David and Pitts, Jennifer, “‘This Modern Grotius’: An Introduction to the Life and Thought of C.H. Alexandrowicz,” in Alexandrowicz, Charles H., The Law of Nations in Global History, ed. Armitage, David and Pitts, Jennifer (Oxford: Oxford University Press, 2017), 131.

22. See Likhovski, Assaf, “Czernowitz, Lincoln and Jerusalem and the Comparative History of American Jurisprudence,” Theoretical Inquiries in Law 4 (2003): 621–75; Langer, Máximo, “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” American Journal of Comparative Law 55 (2007): 617–76; and Kedar, Alexandre (Sandy), “Expanding Legal Geographies: A Call for a Critical Comparative Approach,” in The Expanding Spaces of Law: A Timely Legal Geography, ed. Braverman, Irus, Blomley, Nicolas, Delaney, David, and Kedar, Alexandre (Stanford: Stanford University Press, 2014), 95, 102–8.

23. For some relatively recent examples of the burgeoning literature on constitutional transplants, see Choudhry, Sujit, ed. The Migration of Constitutional Ideas (New York: Cambridge University Press, 2008); Frankenberg, Günter, “Comparative Constitutional Law,” in The Cambridge Companion to Comparative Law, ed. Bussani, Mauro and Mattei, Ugo (Cambridge: Cambridge University Press 2012), 171–90; Perju, Vlad, “Constitutional Transplants, Borrowing, and Migrations,” in The Oxford Handbook of Comparative Constitutional Law, ed. Rosenfeld, Michel and Sajó, András (Oxford: Oxford University Press, 2012), 1304–27. On comparative constitutional history see, for example, Armitage, David, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007); and Stolleis, Michael, “Comparative European Constitutional History,” Giornale di Storia Constituzionale 19 (2010): 4556.

24. See, for example, Frankenberg, Günther, “Constitutional Transfer: The IKEA Theory Revisited,”   International Journal of Constitutional Law 8 (2010): 563–79; Jackson, Vicki C., “Comparative Constitutional Law: Methodologies,” in The Oxford Handbook of Comparative Constitutional Law, ed. Rosenfeld, Michel and Sajó, András (Oxford: Oxford University Press, 2012), 54, 59; and Frankenberg, Günter, ed., Order from Transfer: Comparative Constitutional Design and Legal Culture (Cheltenham: Edward Elgar, 2013).

25. See, for example, Khilnani, Sunil, Raghavan, Vikram, and Thiruvengadam, Arun K. eds., Comparative Constitutionalism in South Asia (New Delhi: Oxford University Press, 2010); Kumarasingham, Harshan ed., Constitution-Maker: Selected Writings of Sir Ivor Jennings (Cambridge: Cambridge University Press, 2014) (discussing constitutional borrowing in postcolonial South Asia); T. John O'Dowd, “Remembering the Constitution: The Easter Proclamation and Constitutionalism in Independent Ireland,” 8–10, (accessed December 24, 2017); Kumarasingham, Harshan, “Eastminster—Decolonisation and State-Building in British Asia,” in Constitution-Making in Asia: Decolonisation and State-Building in the Aftermath of the British Empire, ed. Kumarasingham, Harshan (London: Routledge, 2016), 1, 10, 22 (noting Irish influences on the Indian and Malayan constitutions); and Mahmud, Tayyab, “Jurisprudence of Successful Treason: Coup d'Etat & Common Law,” Cornell International Law Journal 27 (1994): 49 (discussing the impact of Pakistani constitutional case law on  the law of several postcolonial countries belonging to the common-law tradition). As these examples show, postcolonial borrowing in the period after World War II most often occurred between countries within the boundaries of the former empires rather than across them. See Go, Julian, “A Globalizing Constitutionalism? Views from the Postcolony 1945–2000,” International Sociology 18 (2003): 7195. Counterexamples include references to ideology (socialism) and religion (Islam and Buddhism) in constitutional texts. See Go, “Globalizing Constitutionalism,” 75–78. See also Ahmed, Dawood and Ginsburg, Tom, “Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions,” Virginia Journal of International Law 54 (2014): 615, 631–34 (on the influence of British-colonial Indian law on a provision of the 1906 Iranian constitution dealing with supremacy of Islamic law).

26. See Perju, “Constitutional Transplants,” 1319–21; and Scheppele, Kim Lane, “The Agendas of Comparative Constitutionalism,” Law and Courts 13.2 (2003): 5, 13. See also Tom Ginsburg and James Melton, “Innovation in Constitutional Rights,” 10–12, 25–37 (accessed December 24, 2017) (discussing innovation in the area of constitutional rights, including innovations in the global periphery, but also noting the dominance of United States, United Kingdom, and French models).

27. See, generally, Peled, Yoav, The Challenge of Ethnic Democracy: The State and Minority Groups in Israel, Poland and Northern Ireland (London: Routledge, 2014) (a comparative study of Israel and interwar Poland, as well as Northern Ireland). See also Devji, Faisal, Muslim Zion: Pakistan as a Political Idea (Cambridge, MA: Cambridge University Press, 2013) (a structural comparison of the relationship of religion and nationalism in Zionism and Pakistani nationalism).

28. On Ireland as a “peripheral laboratory” of constitutional innovation, see Moyn, Samuel, “The Secret History of Constitutional Dignity,” Yale Human Rights and Development Journal 17 (2014): 39, 51, 53. For a slightly different version of this article, see Moyn, Samuel, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015), 2564. In his discussion, Moyn also noted some similarity between the constitutional and political history of Ireland and Israel, and the impact of the Polish Constitution on the Irish one. See Moyn, “Secret History,” 51 n. 32, 53. For a typology of different models of the relationship between religion and state see, for example, Hirschl, Ran, Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2010), 2149. For works comparing the constitutional history of the United States and that of countries such as Israel, India, and Ireland, see Jacobsohn, Gary Jeffrey, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton University Press, 1998); Jacobsohn, Gary Jeffrey, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2003); Shachar, Yoram, “Jefferson Goes East: The American Origins of the Israeli Declaration of Independence,” Theoretical Inquiries in Law 10 (2009): 589618; Jacobsohn, Gary Jeffrey, Constitutional Identity (Cambridge, MA: Harvard University Press, 2010); and Lerner, Hanna, Making Constitutions in Deeply Divided Societies (New York: Cambridge University Press, 2011).

29. For brief discussions of interwar constitutional history see Mazower, Mark, Dark Continent: Europe's Twentieth Century (New York: Vintage, 1998), 610; and Scheppele, “The Agendas of Comparative Constitutionalism,” 10–12.

30. A pioneering unpublished article by Tom Ginsburg and James Melton notes the importance of studying constitutional innovations (in their case, the creation of new constitutional rights), and also notes the need for a more accurate periodization scheme of the spread of such innovations. Ginsburg and Melton, however, do not see the interwar period as an important period of constitutional creativity in the specific area that they study, that of constitutional rights. See Ginsburg and Melton, “Innovation in Constitutional Rights.” See also  Daniel N. Rockmore, Chen Fang, Nicholas J. Foti, Tom Ginsburg, and David C. Krakauer, “The Cultural Evolution of National Constitutions,” (accessed December 24, 2017) (for a similar attitude to the interwar period). The methodology used in such works is based on quantitative analysis of explicit constitutional provisions found in formal constitutional documents. One of the problems of such an approach is that it ignores other relevant repositories of constitutional ideas such as constitutional drafts, or discussions of constitutional law in unofficial texts such as newspapers and academic periodicals.

31. See Navot, Suzie, “Israel,” in How Constitutions Change: A Comparative Study, ed. Oliver, Dawn and Fusaro, Carlo (Oxford: Hart, 2011), 191209.

32. Other important lawyers who trained in Polish law schools in the interwar period include: Menachem Begin (who served as Israel's prime minister between 1977 and 1983); Moshe Ben Ze'ev (who served as the country's attorney general between 1963 and 1968); and Menachem Dunkelblum, Yitzhak Kahan, Moshe Etziyoni, and Shlomo Asher (Israeli Supreme Court justices in the first decades after Israeli independence). On Begin, see Menachem Begin Heritage Center, Jerusalem file PP-105 (Begin's Warsaw University file); Bader, Yochanan, Ha-Knesset ve-Ani (Jerusalem: ‘Idanim, 1979), 285; Shilon, Avi, Menachem Begin: A Life, trans. Zilberberg, Danielle and Sharett, Yoram (New Haven: Yale University Press, 2012), 1013; and Perlmutter, Amos, The Life and Times of Menachem Begin (New York: Doubleday: 1987), 2441. On Ben-Ze'ev, see Ze'ev, Moshe Ben, “Numerus Clausus be-Mishpatim,” Mishpatim 10 (1979/80): 544, 546; Carmel, Amos, Leksikon ha-Politikah ha-Yisre'elit (Lod: Dvir, 2001), 155; and Zilber, Dina, Be-Shem ha-Hok: Ha-Yo‘ets ha-Mishpati la-Memshalah veha-Parashot shetiltelu et ha-Medinah (Kinneret, Zmora-Bitan: Or Yehuda, 2012), 122.

33. See, for example, Mendelsohn, Ezra, The Jews of East Central Europe between the World Wars (Bloomington: Indiana University Press, 1983), 383. For an earlier discussion, see Heller, Celia S., On the Edge of Destruction: Jews of Poland between the Two World Wars (Detroit: Wayne State University Press, 1977), 71, 183247.

34. Kulczykowski, Mariusz, Żydzi—studenci Uniwersytetu Jagiellońskiego w drugiej Rzeczypospolitej (1918–1939) (Kraków: Polska Akademia Umiejętności, 2004), 66, 478. On Jewish student in interwar Polish universities see generally, Aleksiun, Natalia, “Together but Apart: University Experience of Jewish Students in the Second Polish Republic,” Acta Poloniae Historica 109 (2014): 109–37.

35. Mahler, Raphael, “Jews in Public Service and the Liberal Professions in Poland, 1918–39,” Jewish Social Studies 6 (1944): 291, 313. See also Mendelsohn, The Jews, 27. On Jewish lawyers in late-nineteenth-century Warsaw, see, generally, Kieniewicz, Stefan, “Assimilated Jews in Nineteenth-Century Warsaw,” in The Jews in Warsaw: A History, ed. Bartoszewski, Władysław T. and Polonsky, Antony (Oxford: Blackwell, 1991), 171, 172, 176; and Nathans, Benjamin, Beyond the Pale: The Jewish Encounter with Late Imperial Russia (Berkeley: University of California Press, 2002), 343. This was not merely a Polish phenomenon. On the dominance of Jews in the legal profession elsewhere, see Slezkine, Yuri, The Jewish Century (Princeton: Princeton University Press, 2004), 50, 125, 224, 318 (discussing Jewish lawyers in Europe, the United States, and the Soviet Union); and Likhovski, “Loyal Opposition?”

36. Mahler, “Jews in Public Service,” 297–99, 303, 308.

37. Ibid., 304.

38. Ibid., 308–23.

39. Ibid., 342–46. On the status of Jewish students in Polish universities in the 1930s, see generally, Melzer, Emanuel, No Way Out: The Politics of Polish Jewry, 1935–1939 (Cincinnati: Hebrew Union College, 1997), 7180. For a comparative discussion, see also Livezeanu, Irina, “Interwar Poland and Romania: The Nationalization of Elites, the Vanishing Middle, and the Problem of Intellectuals,” Harvard Ukrainian Studies 22 (1998): 407–30.

40. The transition required the acquisition of new linguistic skills (in Hebrew, and also English, given the strong English influence on the law of mandatory Palestine and later of Israel). Lawyers trained abroad were also required to pass special bar examinations to practice law.

41. For discussions of Anglo-American-trained and German-trained Israeli lawyers, see the works by Lahav, Likhovski, Oz-Salzberger, and Sela-Sheffy mentioned in notes 7–9.

42. See, for example, Shachar, Harris, and Gross, “Nohagey”; and Shachar, Yoram, “Merhav ha-Semekh shel Bet ha-Mishpat ha-‘Elyon 1950–2004,” Ha-Praklit 50 (2008): 1969.

43. A search of an Israeli legal database (Nevo), conducted in early 2015, used the following Hebrew keywords: polin (Poland), polanyah (Poland), mishpat polani (Polish law), hok polani (Polish law), yurisprudentsyah polanit (Polish case-law), torat mishpat polanit (Polish jurisprudence), and psak din polani (Polish case). Some of the keywords (such as polin) yielded more than 500 results, but only a few of these turned out to be substantive.

44. See, for example, CA 105/47 Avraham Ya‘akov Kornblit v. Ya‘akov Freiermauer, 2 Piskey Din (hereafter PD) 184; CA 180/51 Arnold Goldkorn v. Silviyah Visotski, 8 PD 262; CA 100/57 Yezi Vandel Hirshberg v. Mariyah Yakobsfeld-Yakroskah, 12 PD 1896; and IC (Haifa) 101/50 Be-‘Inyan ‘Izvon ha-Mano'ah Meir Grinberg, 4 Psakim Mehoziyim (hereafter PM) 95.

45. “Dr. Yitzhak Kister,” in Entsiklopedyah le-Halutsey ha-Yishuv u-Vonav, ed. David Tidhar, (accessed December 24, 2017).

46. HCJ 80/70 Yehudah Elitsur v. Rashut ha-Shidur, 24(2) PD 648, 668.

47. HR 600/63 Ha-Yo‘ets ha-Mishpati v. Shmuel Reuven, 38 PM 411, 413.

48. CA 4/66 Miryam Peretz v. Ya‘akov Helmut, 20(4) PD 337, 348–49. The commentary Kister mentioned in this case was that of Grudziński, Maurycy, Ignatowicz, Jerzy, and Breyer, Stefan, Kodeks rodzinny: komentarz (Warsaw: Wydawn Prawnicze, 1959).

49. AC 96/60 A.B. v. Ha-Yo‘ets ha-Mishpati, 29 PM 26; CC 3136/61/6 A.A. v. A.L., 33 PM 169, 176; and Hamratsah 2422/59 and 3105/59 Ze'ev Zubatch v. Alizah Zubatch, 22 PM 93, 96. Additional cases relying on Polish law are CC (T.A.) 860/63/8 Karolah Bizovska v. Felix Bizovski, 39 PM 183, 189; FA 13/67 “Bahan” Hevrah le-Bitu'ah BA‘AM, Haifa, v. Barukh Rozentsvayg, PD 22(1) 569, 586 (both mentioning Aleksander Wolter's 1963 book Prawo cywilne: zarys części ogólnej [Warsaw: PWN, 1963]); CA 1976/57 Irenah Grodzinskah v. Yezi Grodzinski, 16 PM 162, 169 (mentioning “Zieliński's 1938 book on citizenship printed in Warsaw”); IC 1241/63/8 Be‘inyan ha-Mano'ah Lipmanovich Yitshak, 37 PM 353, 354 (in which Kister briefly mentioned Polish evidence law); and RFA 178/70 Haim Boker v. Hevrah Anglo-Yisre'elit le-Nihul ve-Ahrayut BA‘AM, 25(2) PD 121, 131 (mentioning Austrian civil law, in force in Galicia). In addition to references to Polish legal texts, Kister sometimes alluded to Polish law based on secondary sources in English, as part of comparative surveys. See IC 377/56 Be‘inyan ha-Mano'ah Yosef Blum, 12 PM 154, 164 (on the consequences of adoption).

50. See, for example, CA 1976/57 Irenah Grodzinskah v. Yezi Grodzinski, 16 PM 162, 169–70 (in which Kister states that both Polish law and Jewish law would not regard a Jew as a Pole); HCJ 80/70 Yehudah Elitsur v. Rashut ha-Shidur, 24(2) PD 648, 668 (Kister criticizing “assimilated Jews,” whose representatives in the Sejm voted, together with the Socialist Party, in favor of the 1919 law declaring Sunday a day of rest, so as to force Jews to work on Saturdays and thus “become Poles”).

51. For a discussion of the identity options available for Polish Jews at the time see, for example, Awakening Lives: Autobiographies of Jewish Youth in Poland before the Holocaust, ed. Shandler, Jeffrey (New Haven: Yale University Press, 2002), and, more recently, Kijek, Kamil, “Was It Possible to Avoid ‘Hebrew Assimilation’?: Hebraism, Polonization, and Tarbut Schools in the Last Decade of Interwar Poland,” Jewish Social Studies 21 (2015): 105–41.

52. Netzer, Shlomo, “Hartglas, Maximilian Meir Apolinary,” in Encyclopaedia Judaica, 2nd ed., vol. 8 (Detroit: Macmillan Reference, 2007), 374; and Żyndul, Jolanta, “The Legal Practice of Apolinary Hartglas,” Justice, The International Association of Jewish Lawyers and Jurists 30 (2002): 4548.

53. Hartglas, Apolinary, Na pograniczu dwóch światów, ed. Żyndul, Jolanta (Warsaw: Rytm, 1996), 18.

54. Ibid., 340.

55. Ibid., 421.

56. Ibid., 422.

57. Ibid. 340

58. Ibid., 370. Hartglas's disdainful attitude toward Israeli lawyers was shared by some of his Polish-Israeli compatriots. Zorach Warhaftig, the Polish-Israeli member of Parliament (who will be discussed later in this article), sarcastically described an international lawyers’ conference held in Israel in 1958, saying that “the Israeli lawyers wildly danced around the distinguished guests, the English lawyers, and told them that we [Israelis] were good students of their decisions, and even advised them to learn Hebrew so that they could see for themselves how well we [Israelis] interpret their decisions.” See Warhaftig, Divrey ha-Knesset, Nov. 11, 1958, 231, 232, quoted in Mautner, Menachem, Mishpat ve-Tarbut be-Yisrael be-Fetah ha-Me'ah ha-‘Esrim ve-Ahat (Tel Aviv: ‘Am ‘Oved, 2008), 90.

59. United Nations General Assembly Resolution 181 (II), A/RES/181 (II), November 29, 1947.

60. See ha-Rishonah, Ha-Knesset, Hukat ha-Medinah: Ha-Din ve-Heshbon shel Va‘adat Hukah Hok u-Mishpat bi-Dvar Hukat ha-Medinah veha-Diyunim be-Meli‘at ha-Knesset ha-Rishonah (Jerusalem: Ha-Madpis ha-Memshalti, 1951/2), 5.

61. See, generally, Rackman, Emanuel, Israel's Emerging Constitution, 1948-51 (New York: Columbia University Press, 1955); Friedman, Shuki and Radzyner, Amihai, Hukah shelo Ktuvah ba-Torah (Jerusalem: IDI Press, 2006), 12, 5455; Lerner, Making Constitutions, 51–70; Assaf Likhovski, “‘The Time Has Not Yet Come to Repair the World in the Kingdom of God’: Israeli Lawyers and the Failed Jewish Legal Revolution of 1948,” in Jews and the Law, ed. Mermelstein, Woeste, Zadoff and Galanter, 359–83; Harris, Ron, Ha-Mishpat ha-Yisre'eli--Ha-Shanim ha-Meʻatsvot: 1948–1977 (Bnei Brak: Ha-Kibbutz ha-Me'uhad, 2014), 61–2; Kedar, Nir, Ben-Gurion veha-Hukah: ‘Al Hukatiyut, Demokratyah u-Mishpat be-Medinyuto shel David Ben-Gurion (Ramat Gan: Bar-Ilan University Press, 2015); and Weiler, Joseph and Lustig, Doreen, “Petakh Davar: Makom Tov ba-Emtsa‘: Mabat Tluy Heksher ‘al Ha-Mahapekhah ha-Hukatit ha-Yisre'elit,” ‘Iyune Mishpat 38 (2016): 419, 455–72.

62. A number of these draft constitutions can be found online at: (accessed December 24, 2017). See also RZA, PA 16, file 95; Aviram Shahal, “Ha-Hukah she-Nishkekhah: Hatsa‘at ha-Hukah shel Leo Kohn veha-Be‘ayah ha-‘Arvit,” (LLM thesis, Tel Aviv University, 2014).

63. See Radzyner, Amihai, “A Constitution for Israel: The Design of the Leo Kohn Proposal, 1948,” Israel Studies 15 (2010): 124; Radzyner, Amihai, “The Irish Influence on the Israeli Constitution Proposal, 1948,” in The Constitution of Ireland: Perspectives and Prospects, ed. Carolan, Eoin (Dublin: Bloomsbury, 2012), 6989; Shahal, “Ha-Hukah she-Nishkekhah”; and Thomas Mohr, “Leo Kohn and the Law of the British Empire” (unpublished paper on file with author).

64. Hartglas, Apolinary, “Hukah le-Yisrael,” Ha-Praklit 5 (1948): 163. There was no judicial review in the American sense of the term in interwar Poland. Indeed, article 81 of the March 1921 Constitution explicitly stated that “the courts have not the right to inquire into the validity of duly promulgated statutes.” Nor was a constitutional court of the type created in interwar Austria or Czechoslovakia established in Poland. See Szmulik, Bogumił and Żmigrodzki, Marek, “Kwestia kontroli konstytucyjności prawa w Polsce w latach 1918-1982,” Annales Universitatis Mariae Curie-Skłodowska. Sectio K, Politologia 5 (1998): 151, 153. However, the March Constitution did create a “Court of State” (Trybunał Stanu) which could impeach the president and government ministers (articles 51, 59, and 64), and, in addition, article 73 established a system of administrative courts culminating with a Supreme Administrative Court, which could review administrative acts. See Ludwik Kos-Rabcewicz-Zubkowski, “Polish Constitutional Law,” in Polish Law Throughout the Ages, ed. Wagner 215, 256.

65. Hartglas, “Hukah,” 166, 167.

66. On the relationship between Hartglas and Gruenbaum, see Yitzhak Gruenbaum, “[Obituary]: Apolinary Maximilian (Meir) Hartglas,” ‘Al ha-Mishmar, March 29, 1953, 2.

67. Bader, Yochanan, Darki le-Tsiyon, 1901–1948 (Jerusalem: Makhon Jabotinsky, 1998/9), 34.

68. Ibid., 49. This may have been a reference to Władysław Bełza's patriotic children's poem which begins “Who are you? A little Pole.”

69. The first volume of Bader's two volume autobiography (Darki le-Tsiyon) contains a detailed discussion of the transformation of Bader's identity from that of an assimilated Polish Jew as a young person, to that of a communist, and later a Zionist.

70. Bader also practiced law for a brief period in the 1960s. See Bader, Ha-Knesset, 15.

71. Ibid., 166.

72. Jabotinsky Institute, file P 21, 8/5, Sylvie Keshet, “Heye Shalom Dr. Bader,” Yedioth Ahronot, March 25, 1977; Jabotinsky Institute, file P 21, 8/5, Ada Hoz-Peles, “Ha-Polani ha-Aharon: Sihah Ktanah ‘im Dr. Yochanan Bader-‘al Begin, Ziknah, Herut u-Mavet”; and Jabotinsky Institute, file P 21, 8/5, Meir Hovav, “Shushbin la-Netsah,” Ha-Tsofeh, July 29, 1994. See also Bader, Ha-Knesset, 117.

73. For example, his unsuccessful calls for the Israeli legal system to adopt the use of juries, calls based on his experience as a trial lawyer in Galicia, where juries were used in criminal trials during the Austrian period and (to a lesser extent) also during the interwar period. See Bader, Darki, 37, 123–24, 205; Yochanan Bader, “Shilton ‘al yedey ha-‘Am: Keytsad le-Hasigo,” Herut, January 7, 1949; Divrey ha-Knesset, February 2, 1955, 720; Divrey ha-Knesset, November 15, 1955, 321–22; and Divrey ha-Knesset, November 22, 1955, at 358–59. On the use of juries in interwar Poland, see also Pomorski, Stanislaw, “Lay Judges in the Polish Criminal Courts: A Legal and Empirical Description,” Case Western Reserve Journal of International Law 7 (1975): 198209.

74. The text of Bader's draft constitution can be found in Bader's personal archive at the Jabotinsky Institute in Tel Aviv. See Jabotinsky Institute, file P 21 5/1.

75. Bader, who was linked to Begin's paramilitary group, the Irgun, was freed only on May 6, 1948, 5 days before the establishment of the state of Israel. See Bader, Darki, 427, 440.

76. Bader, Ha-Knesset, 39–40.

77. See Yochanan Bader, “Shrirut ve-Rodanut be-Masveh shel ‘Zkhuyot Yesod’,” Herut, December 31, 1948. I am indebted to Aviram Shahal for the point about the Italian constitution.

78. See, for example, The Constitution of Poland,” Constitutional Review 5 (1921): 178–80; Hayden, Ralston, “New European Constitutions in Poland, Czechoslovakia and the Kingdom of the Serbs, Croats and Slovenes,” American Political Science Review 16 (1922): 211–27; Kos-Rabcewicz-Zubkowski, “Polish Constitutional Law,” 254–61; Polonsky, Antony, Politics in Independent Poland, 1921–1939 (Oxford: Clarendon Press, 1972), 4650; Jędruch, Jacek, Constitutions, Elections and Legislatures of Poland, 1493–1977: A Guide to their History (Washington, DC: University Press of America, 1982), 337–66; Brzezinski, Mark, The Struggle for Constitutionalism in Poland (New York: St. Martin's Press, 1998), 4849; Garlicki, Lech, “Constitutional Law,” in Introduction to Polish Law, ed. Frankowski, Stanisław and Bodnar, Adam (The Hague: Kluwer Law International, 2005), 136; and Bardach, Leśnodorski, and Pietrzak, Historia, 501–2. For a detailed comparison of the provisions of the 1921 and 1935 constitutions see Laserson, Max M., “Two Polish Constitutions, 1921 and 1935,” Journal of Legal and Political Sociology 4.1 (1945/6): 2752.

79. March 1921 Polish Constitution (hereafter PC), art. 53; Bader's draft (hereafter BD), art. 99.3. Translations of the provisions of the Polish Constitution are taken from Ludwikowski, Rett R. and Fox, William F. Jr., The Beginning of the Constitutional Era: A Bicentennial Comparative Analysis of the First Modern Constitutions (Washington, DC: Catholic University of America Press, 1993), 313–27.

80. PC, art. 25; BD, art. 73.4.

81. See, for example, The Constitution of the German Federation of August 11, 1919, articles 132, 133 (an English translation is available in Oppenheimer, Heinrich, The Constitution of the German Republic [London: Stevens and Sons, 1923], 248).

82. PC, art. 102; BD, art. 47.1.

83. PC, art. 117; BD, art. 28.

84. PC, art. 90; BD, art. 56.1.

85. PC, art. 114. Article 114 was the result of a compromise between the left-wing parties in the Sejm (who wanted to separate church and state), and right-wing parties (who wanted to give a predominant role to Catholicism in the new Polish state); see Łysko, Marcin, “Przepisy wyznaniowe w konstytucji marcowej,” in Konstytucja—ustrój polityczny—system organów państwowych: prace ofiarowane profesorowi Marianowi Grzybowskiemu, ed. Bożyk, Stanisław, and Jamróz, Adam (Białystok: Temida 2, 2010), 313–30. See also Porter-Szűcs, Brian, Faith and Fatherland: Catholicism, Modernity, and Poland (New York: Oxford University Press 2011), 172–3.

86. BD, art. 18.5. Similarity also extended to the specific details of the provisions dealing with religion in both texts. The Polish Constitution stated that “every religious community recognized by the [Polish] state…may possess and acquire movable and immovable property, administer and dispose of it,” whereas Bader's draft declared that “every religious community will have the right, within the general framework of law…to purchase and possess immovable and movable property and organize it as it deems fit.” PC, art. 113; BD, art. 21.1.

87. See, for example, Moyn, “Secret History,” 51 n. 32. On the relationship between secular nationalism and religious identity, see also Walzer, Michael, The Paradox of Liberation: Secular Revolutions and Religious Counterrevolutions (New Haven: Yale University Press, 2015) (discussing Israel, Algeria, and India).

88. A similar provision was also found in article 44 of the 1937 Constitution of Ireland, which stated that “the State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.”

89. See Constitution of the Republic of Poland (April 23rd 1935) (Warsaw: Polish Commission for International Law Cooperation, 1935), art. 13, 16, 20, 21.

90. Compare the 1921 Constitution, art. 2, 25, 26, 35, 36 and BD, art. 64.

91. Brzezinski,  The Struggle, 50. Given the problematic political history of the 1921 Constitution, amended in 1926 and replaced in April 1935 by an authoritarian constitution, the fact that Bader did not fully copy it is not entirely surprising. See generally Brzezinski, The Struggle, 51–54.

92. On the history of the Law Department at the Warsaw University before 1918, see Bosiacki, Adam, “Wydział Prawa Cesarskiego Uniwersytetu Warszawskiego w latach 1869–1915,” in Zarys Dziejów Wydziału Prawa i Administracji Uniwersytetu Warszawskiego 1808–2008, ed. Bałtruszajtys, Grażyna (Warsaw: LexisNexis, 2008), 83114.

93. Grażyna Bałtruszajtys, “Wydział Prawa w latach 1915–1939,” in Zarys, ed. Bałtruszajtys, 115, 150–52.

94. Sarnecki, Paweł, “Nauka prawa konstytucyjnego na Uniwersytecie Jagiellońskim w okresie międzywojennym,” in Prawo konstytucyjne II Rzeczypospolitej: Nauka i instytucje, ed. Sarnecki, Paweł, (Kraków: Wydawnictwo Uniwersytetu Jagiellońskiego, 2006), 5964; and Zdzisław Jarosz, “Prawo konstytucyjne na Uniwersytecie Warszawskim,” in Prawo konstytucyjne, ed. Sarnecki, 65–69.

95. Jagiellonian University Archive, Kraków, Katalog główny studentów UJ za rok szkolny 1919/20, prawo II, Sygnatura S II 291a (Jan Bader's personal file).

96. Unlike Hartglas and Bader, Warhaftig's autobiographical writings focus exclusively on the period of the Holocaust (see Warhaftig, Zorach, Palit ve-Sarid bi-Yeme ha-Sho'ah (Jerusalem: Yad va-Shem, 1983/4)) and the period after his immigration to Mandatory Palestine in 1947 (see Warhaftig, Zorach, Hamishim Shanah ve-Shanah: Pirkey Zikhronot (Jerusalem: Yad Shapira, 1998)). This, in itself, can serve as an indication of the weaker affinity to Polish culture that he had, and on the spectrum between Jewish and Polish identity, he was, as an orthodox Jew, closer to the Jewish end, like Kister, rather than the assimilationist one like the secular Hartglas and Bader. However, Warhaftig did briefly mention his education at the University of Warsaw in his autobiographical writing. See Warhaftig, Hamishim, 88.

97. See, for example, Report of the Institute of Jewish Affairs for the Period February 1, 1941 –April 30, 1947 (New York: Institute for Jewish Affairs, 1947) (a copy of the report can be found in the YIVO Library at the Center for Jewish History, New York).

98. See Warhaftig, Hamishim, 10–11; Warhaftig, Palit; and Warhaftig, Zorach, Hukah le-Yisrael: Dat u-Medina (Jerusalem: Mesilot, 1988), 22.

99. Warhaftig, Hamishim, 88–89; and Warhaftig, Palit, 325–26.

100. Warhaftig, Hamishim, 14–22.

101. Warhaftig, Zorach, “Megilat ha-‘Atsmaut u-Fkudat Sidrey Shilton u-Mishpat 1948, u-Ve‘ayot Dat u-Medinah,” in Sefer Shragai, ed. Eliav, Mordechai and Rafael, Yitzhak (Jerusalem: Mosad ha-Rav Kuk, 1981), 156, 162; Warhaftig, Hukah, 21–31, 60–62, 449; Warhaftig, Hamishim, 18, 69–70, 84; and Warhaftig, Palit, 325–26. See also Friedman and Radzyner, Hukah, 18–21.

102. For a list of people with whom Warhaftig was in touch, see, for example, RZA, PA 16, file 95 (vol. 3) (the list includes legal scholars, politicians, and rabbis in the United States, the United Kingdom, Sweden, France, Switzerland, Italy, and Argentina).

103. The foreign constitutions can be found in RZA, PA 16, files 98, 99. See also Warhaftig, Hukah, 41, 79, 445, 447, 452 (references to other constitutions). In one of the parliamentary debates, Warhaftig mentioned a number of South American constitutions and the similarity between them, and said that mechanically copying constitutional provisions from other countries was not something that should be done by Israelis. See ha-Rishonah, Ha-Knesset, Hukat ha-Medinah: Ha-Din ve-Heshbon shel Va‘adat Hukah Hok u-Mishpat bi-Dvar Hukat ha-Medinah veha-Diyunim be-Meli'at ha-Knesset ha-Rishonah (Jerusalem: Ha-Madpis ha-Memshalti, 1951/2), 18. Warhaftig did mention some examples taken from the Polish Constitution of 1921, but these were accompanied by references to other constitutions. See RZA, PA 16, File 292 (vol. 2), Va‘adat ha-Hukah: Yeshivah Shminit, October 6, 1948, 2 (discussing a provision dealing with closed-door sessions of the Parliament and referring to the Polish, United States, and Swiss constitutions); ha-Rishonah, Ha-Knesset, Hukat ha-Medinah: Ha-Din ve-Heshbon shel Va'adat Hukah Hok u-Mishpat bi-Dvar Hukat ha-Medinah veha-Diyunim be-Meli'at ha-Knesset ha-Rishonah (Jerusalem: Ha-Madpis ha-Memshalti, 1951/2), 16. Another example of Warhaftig's work in which the Polish Constitutions (and Polish constitutional law texts) are mentioned together with many other comparative examples is Warhaftig, Zorach, “Be‘ayot shel Takanot ha-Behirot la-Asefah ha-Mekhonenet ule-Veyt ha-Nivharim shel ha-Medinah ha-Yehudit,” Sinai 23 (1948): 2449 (a comparative discussion of election laws).

104. See, generally, Perju, “Constitutional Transplants,” 1320. An interesting example of this phenomenon can be found in the work of a committee created by the dominant political party in Israel at the time, the Israeli Labor Party (MAPAI), which prepared a draft constitution between December 1947 and April 1948. See Mifleget Po‘aley Eretz Yisrael: Ha-Merkaz, Li-Ve‘ayot ha-T'hukah shel Ha-Medinah veha-Shilton ha-Mekomi (Tel Aviv: n.p., August 1948) (a copy can be found in RZA, PA 16, file 95, vol. 2). The chapter dealing with civil rights in this draft was written by Yitzhak Coren, a Romanian lawyer. In his explanatory notes, Coren mentioned the Romanian example but also the Polish 1921 Constitution and the Czech one. Mifleget Po‘aley Eretz Yisrael: Ha-Merkaz, Li-Ve‘ayot, 87, 90–91.

105. Warhaftig, Hukah, 449. For additional references to Polish constitutional texts, see Ibid., 487. On the Polish “small constitution” of 1919, see Laseron, “Two Polish Constitutions,” 33–34; and Brzezinski, The Struggle, 48. Another “small constitution” was created by the Polish Parliament in February 1947 after the first postwar Polish elections. It combined a “Declaration on the Rights and Freedoms of Citizens,” and a “Constitutional Law,” defining the powers of the different branches of government. See Mirkine-Guetzévitch, Boris, Les constitutions européennes, vol. 2 (Paris, Presses universitaires de France, 1951), 606 n. 2.

106. On the relationship between Warhaftig's draft D and the Law and Administration Ordinance, see Radzyner, Amihai, “Yesodotehah ha-Nishkahim shel Pkudat Sidrey Shilton u-Mishpat veha-Ma'avak ha-Samuy ‘al Hesdery Dat u-Medinah,” Katedra 136 (2010): 121–50. On Israel's early constitutional history, see, generally, Likhovski, Eliahu S., Israel's Parliament: The Law of the Knesset (Oxford: Clarendon Press, 1971), 1415. The term “small constitution” was used not only by Warhaftig, but also by a number of other legal commentators; for example, by Israeli Supreme Court Justice Moshe Landau. See Landau, Moshe, “Dvarim le-Zekher Uri Yadin Z”L,” in Sefer Uri Yadin: Ha-Ish u-Fo‘olo, vol. 1, ed. Barak, Aharon and Shpanitz, Tana (Tel Aviv: Bursi, 1990), 11, 12. One should note that other texts were also sometimes called “the small constitution;” for example, the Israeli Transition Act, 1949, passed on February 16, 1949. See, for example, Menachem Begin, “Gilguley Hukim,” Herut, June 15, 1962, 2. Sometimes the Law and Administration Ordinance together with the Transition Act were called the “small constitution.” See “Hukat ha-Ma‘avar shel ha-Medinah: ‘Ha-Hukah ha-Ktanah’,” Ha-Tsofeh, Feb. 9, 1949, at 4. A synonymous (Aramaic) term—Hukah Zuta—was used to refer to a 1950 Ministry of Justice proposal. See “Ha-Memshalah Mekhinah Hukah Zuta,” Ma'ariv, May 7, 1950, at 3. See also Divrey ha-Knesset, July 30, 1975, at 4002 (Minister of Justice Haim Zadok referring to the Law and Administration Ordinance as a Hukah Zuta).

107. RZA, PA 16, file 292 (vol. 2), Zorach Warhaftig, Tazkir be-‘Inyan Siluk ha-Ofi ha-Zmani shel ha-Memshalah u-Mo‘etset ha-Medinah, July 29, 1948.

108. For a detailed discussion, see Strum, Philippa, “The Road Not Taken: Constitutional Non-Decision Making in 1948–1950 and its Impact on Civil Liberties in the Israeli Political Culture,” in Israel: The First Decade of Independence, ed. Troen, S. Ilan and Lucas, Noah (Albany: State University of New York Press, 1995), 83104; Friedman and Radzyner, Hukah, 12, 52–60; and Rozin, Orit, “Forming a Collective Identity: The Debate over the Proposed Constitution, 1948–1950,” Journal of Israeli History 26 (2007): 251–71.

109. Warhaftig, Hukah, 494. See also Aharonson, Shlomo, “Hukah le-Yisrael: Ha-Degem ha-Briti shel David Ben-Gurion,” Politikah 2 (1998): 930 (on the British impact on the constitutional thought of David Ben-Gurion).

110. Warhaftig, Zorach, “Hukah le-Yisrael,” Yavneh: Kovets Akadema'i Dati 3 (1949): 1721.

111. Szerer, Mieczyslaw, “O Powołaniu naszych czasów do stanowienia konstytucji,” Państwo i prawo 11 (1947), 6883.

112. After the liberation of Poland in 1944, the March 1921 Constitution was restored. Following the first elections in 1947, the new Parliament enacted (on February 19, 1947) a “Constitutional Law,” defining the powers of the different branches of government, and augmented this law (on February 22, 1947) with a declaration on the “Rights and Freedoms of Citizens.” These two laws together were called “the small constitution.” The 1921 Constitution was only replaced by a new, communist, constitution in July 1952. See Mirkine-Guetzévitch, Les constitutions européennes, 606 n. 2; Plachta, Michal, “The Formation of the Polish Legal System during the Changes in the Structure of Government: 1944–1949 (with a Special Emphasis on the Criminal Justice System),” Review of Socialist Law 16 (1990): 57, 6467.

113. Warhaftig, “Hukah le-Yisrael,” 17–18.

114. For a general discussion of the argument against legislative haste in the period immediately after Israeli independence, see Likhovski, “‘The Time Has Not Yet Come.”

115. Davenport-Hines, Richard, ed. Letters from Oxford: Hugh Trevor-Roper to Bernard Berenson (London: Phoenix, 2007), 144.

116. Another, more difficult to trace, influence may have occurred when Israeli legal drafters in the 1950s adopted a piecemeal legislation method for the replacement of the Ottoman-British legacy that the Israeli legal system had inherited, a method similar to the one used by the Codification Commission of Interwar Poland.

117. Kohn, Yehuda Pinchas [Leo], Hukah le-Yisrael: Hatsa‘ah ve-Divery Hesber (Mo‘etset ha-Medinah: Ha-Kiryah, 1949), 1819. See also Moyn, “Secret History,” 42–43 (on the interwar period as a period of constitutional innovation).

For advice and comments on earlier drafts, he thanks Marek Karliner, Pnina Lahav, Doreen Lustig, Menny Mautner, Orit Rozin, Aviram Shahal, Scott Ury, Mila Versteeg, Steven Wilf, and the participants of the 4th biennial European Society for Comparative Legal History conference in Gdańsk, the 2016 American Society for Legal History Annual Conference, and the law and history workshop at the Interdisciplinary Center Herzliya. He also thanks the two anonymous reviewers of Law and History Review. He thanks Udi Becker, Shani Schnizer, and Noa Shmueli for research assistance. He is especially grateful to Katarzyna Czerwonogóra for her assistance in the collection and translation of the Polish sources used in this article, and for her assistance in research for this article. He also thanks Aliza Haiman, Rami Shtivi, Edya Skolsky-Gilad, and Tsfira Stern for assistance in collecting the Israeli archival materials, and Amanda Dale for editorial assistance. Research for this article was supported by Israel Science Foundation research grant no. 405/15. Place names are based on the rules used by the editors of the book series Polin: Studies in Polish Jewry, ed. Antony Polonsky (Oxford: The Littman Library).

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