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Against “Anglicization”: Class, Codification, and the Common Law in Palestine’s Civil Wrongs Ordinance

Published online by Cambridge University Press:  09 January 2026

David B. Schorr Open the ORCID record for David B. Schorr [Opens in a new window]
David B. Schorr*
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Faculty of Law, Tel Aviv University, Tel Aviv, Israel
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Email: dschorr@tauex.tau.ac.il
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Abstract

This article explores the enactment of the Civil Wrongs Ordinance in Mandate Palestine in order to question the utility of “Anglicization” as a historical lens, and to suggest that it tends to crowd out more helpful framings, in particular those involving distributive or class motivations and effects. The Ordinance has been portrayed primarily as an instance of the codification of the common law of torts and its import to Palestine. Without denying the Englishness of the Ordinance, this article demonstrates that it did not codify the common law of tort but went considerably beyond it in reforming Palestine’s liability regime. It further argues that the “Anglicization” framing obscures more than it illuminates, missing the massive redistribution of risk, costs, liability, and welfare that resulted from the change in Palestine’s tort law. The study also complicates the commonly accepted chronology of the development of compensation for injuries in the common law world. In Palestine, English-style tort law was the product of progressive reform, designed to overcome the shortcomings of the preceding regime of workers’ compensation schemes. The significance of Anglicized tort law in this jurisdiction was thus very different, in some ways the polar opposite, of that in other, better-known contexts.

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Law and History Review , First View , pp. 1 - 23
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© The Author(s), 2026. Published by Cambridge University Press on behalf of American Society for Legal History

The issue of “Anglicization” was persistent in the legal systems of the British Empire, and it has remained an organizing theme in their historical analysis.Footnote 1 The extent, limits, motives, and meaning of the application of English law to the extensive and far-flung lands of the empire have been documented, debated, and explained in myriad ways. Scholars have often viewed the competition of English law with local norms, and its sometimes supplanting them, through the lens of legal systems or families. In recent years, with the rise of cultural framings in history, this way of thinking has further evolved to stress the connection between Anglicization (and resistance to it) and issues of national identity.Footnote 2

This article explores the details of one historical instance of legal Anglicization—the enactment of the Civil Wrongs Ordinance (CWO) in Mandate Palestine—in order to question the utility of “Anglicization” as a historical lens, and to suggest that it tends to crowd out more helpful framings, in particular those involving distributive or class motivations and effects. This is an argument with relevance far beyond the case of Palestine, as “Anglicization” and parallel framings are widespread in legal history, particularly in the contexts of empires and of transnational phenomena.

The CWO has been portrayed primarily as an instance of the codification of the common law of torts and its import to Palestine, where it replaced Ottoman law.Footnote 3 Without denying the essential Englishness of the CWO, I wish to demonstrate that the Ordinance did not codify the common law of tort but went considerably beyond it in its reform of Palestine’s liability regime.

Moreover, I will argue that the “Anglicization” framing, while technically accurate, obscures more than it illuminates. First, it misses the massive redistribution of risk, costs, liability, and welfare that resulted from the change in the tort law of Palestine, a redistribution next to which any issues of identity pale in comparison. In particular, the CWO effected a radical expansion of the ability of those harmed to recover compensation for their losses and of the corresponding liability imposed on those causing the harm, a shift in the costs of accidents that accrued to the benefit of workers, consumers, and simple folk, at the expense of businesses and the wealthy. Secondly, it has led to a warped understanding of the CWO from a doctrinal point of view, with tensions between the text of the statute and the English common law (that it is mistakenly assumed to reflect) smoothed out in favor of the latter.

Viewing the history of tort law, as well as law more generally, through a distributive lens has a venerable pedigree, including the seminal work of legal historian Morton Horwitz, who argued that tort law, along with private law more generally, worked in the nineteenth-century USA to subsidize the rising capitalist classes at the expense of others.Footnote 4 In a sense, I am returning to that tradition, though I will argue that the adoption of a negligence-based tort regime in Palestine reflected and effected a distributive shift in the opposite direction to that described by Horwitz.Footnote 5

A further implication of the present study is to complicate the commonly accepted chronology of the development of the law of compensation for injuries in the common law world. The story told for many jurisdictions, in which the shortcomings of classical English tort law, and in particular its inadequacy in meeting the needs of injured workers (if not its downright hostility towards them), were met by a series of statutory reforms culminating in workers’ compensation schemes, bears little relation to the development of the field in Palestine. There English-style tort law was itself the product of progressive legislative reform, designed to overcome the shortcomings of the preceding regime, a regime that already included workers’ compensation schemes. The significance of Anglicized tort law in this (admittedly peripheral) jurisdiction was thus very different, in some ways the polar opposite, of its significance in other, better-known contexts.

The article proceeds by first laying out the background to the legislation of Palestine’s CWO and the process of its enactment. It next emphasizes the massive redistribution of costs and welfare occasioned by the replacement of Ottoman tort law in Palestine with a tort regime based on English law. But, as will be seen, Palestine’s CWO departed from the common law in many subtle but significant ways, generally advancing the interests of workers, organized labor, and consumers. These departures from the common law are significant not only for their legal content but for what they teach us about the relative importance of the dimensions of national identity and of class or distributive factors as motivations for enactment of the law, as well as for understanding its significance. Finally, I will argue that moving beyond the paradigms of national identity and legal systems to a stronger focus on distributive issues might prove a fruitful strategy for legal histories of the British Empire and of legal circulation in general.

Ottoman delict and the enactment of the Civil Wrongs Ordinance

When the British accepted the League of Nations Mandate for Palestine, they largely left in place the existing Ottoman law, much as they left in force the law in other colonies formerly ruled by what they considered “civilized” states.Footnote 6 The Ottoman law of personal injury was very different from the English, as a series of decisions by Palestine’s Supreme Court outlined: The Mejelle, the Ottoman civil code enacted in the mid-nineteenth century, provided for compensation for harm to property but not for bodily injury.Footnote 7 Compensation for bodily harm might be provided either upon conviction in a criminal trial, or by payment of diyet/diya (“blood money”), with its fixed prices for loss of life or limb, according to Islamic law; but these limited paths were further constricted by legislation under British rule.Footnote 8 No vicarious liability attached to employers for the actions of their employees.Footnote 9

While this liability regime may have worked well in the largely agrarian Ottoman Empire, in the increasingly mechanized and industrialized society of Mandate Palestine, in which, as one judge put it, “the scope of Civil Wrongs has increased,”Footnote 10 it came to be seen as having “failed to keep pace with the times”Footnote 11 or even “very primitive.”Footnote 12 “The inadequacy of the Civil Law of Wrongs provided by… Islamic-Turkish law is well known to all lawyers in touch with the Middle East,” wrote legal scholar Frederic Goadby in 1934.Footnote 13

The law’s limitations may be illustrated through the much-discussed (and criticized) 1940 decision of the Palestine Supreme Court in Sherman v. Danovitz:Footnote 14 Feivel Danovitz had his leg broken in an accident caused by a truck belonging to the Palestine Electric Corporation, negligently driven by its employee, Sherman. The trial court found that Danovitz had suffered damages of 5 Palestine pounds (LP) for loss of clothing; LP 3.400 medical expenses; LP 5 travel expenses; and LP 185 loss of time, working capacity, and damage to business. On appeal, the Supreme Court ruled that under the law of Palestine, only the loss of clothing was compensable (to the tune of LP 5), with no vicarious liability applying to the employer corporation. The was no liability, the court ruled, neither of the corporation nor of the direct tortfeasor, for the remaining LP 193.400, since personal injuries were not compensable under the law in force.

Despite this harsh result and despite the possibility of applying the English law of torts, the majority opinion of Justice Copland refused to do so, arguing that the “Law of Torts” should be introduced to Palestine only by legislation.Footnote 15 He supported this decision with arguments as to the practical and institutional difficulties involved in importing legal norms from far-away England, as well as the supposed inappropriateness of applying the law of the civilized English to the backward Levantine peoples populating Palestine.Footnote 16 Yet Justice Gad Frumkin’s dissent in Sherman, calling for the import of the common law of torts, decried the majority’s approach less in terms of national identity than with reference to its harsh material consequences:

My brother [Copland] considers it an injustice from several points of view to introduce the English Common Law of Torts into this country, but what about the injustice to which any member of the public is subjected if he has the misfortune to be the victim of an accident, especially when that accident was caused by a negligent employee?

Not only has he no relief whatsoever against the employer even if the employer was the cause of the negligence, but even as regards the person directly causing the accident he may claim for torn clothes but has very little relief for damages caused through injuries to the person, such as surgical expenses and incapacity to work.Footnote 17

The decision of the majority in Sherman was criticized loudly. “The present form of Palestinian law, based mainly on the old Ottoman law as regards the amount of compensation payable in such cases, is utterly inadequate,” opined one writer, adding later that Sherman was a “rather unsatisfactory judgment.”Footnote 18 The legal editor of the Palestine Post went further, arguing that the decision ran counter to the “accepted fundamental of all civilized systems of law” that wrongful acts required compensation to make good the loss suffered.Footnote 19 A lower court judge refused to follow Sherman, essentially limiting its holding to the facts of the case.Footnote 20 A 1946 review of a book on motor vehicle accidents complained that the legal situation after Sherman was “still being tolerated” and expressed hope that the CWO would soon be enacted.Footnote 21 Decrying the “serious lacuna in the law of Palestine,” the Jewish Bar Association complained about the delay in enacting the CWO: “It must surely be unique among civilised countries for the population to be without redress for many of the injuries for which this Ordinance is intended to provide.”Footnote 22 A similar complaint was made by an Arab lawyer: “In all civilized countries civil wrongs are covered by compensation and the applicability of the [CWO] is becoming more necessary than ever, owing to the social development of the Country.”Footnote 23

Though the enactment of the CWO was in many ways a direct response to Frumkin and other critics of the existing law in the wake of Sherman, work on the Ordinance in fact began even before the Supreme Court’s judgment, driven by other concerns—a complaint by the Judicial Committee of the Privy Council in 1940 that interpreting the provisions of the Mejelle, with no authoritative English translation, was overly difficult, and criticism in the pages of the Journal of Comparative Legislation and International Law that in questions of tort “the Mejelle is, to say the least of it, inadequate… [an] obscure and badly drafted piece of legislation.”Footnote 24 (This unsigned “Note” was almost certainly penned by the journal’s editor, Goadby, who had extensive experience in Palestine, where he had explored the possibility of introducing new tort legislation.Footnote 25 )

The new Civil Wrongs Ordinance was largely based on Cyprus’s Civil Wrongs Law of 1932.Footnote 26 Cyprus and Palestine shared a common Ottoman legal heritage, making legal transplants between the two an obvious choice. (Not coincidentally, the Cyprus and Palestine statutes turned out to be the only two “common law codifications” of tort law in the British Empire.Footnote 27 ) There was also a biographical reason for this borrowing: Palestine Chief Justice Harry Trusted, who called for enactment of a local torts ordinance in the wake of the Privy Council’s comment, had himself drafted the Cyprus torts law while serving as Attorney General of the island colony.Footnote 28 A draft of the Palestine CWO was circulated for comments by government departments and the public in 1942, and a version intended to be final was gazetted in 1944.Footnote 29 Enactment of this version into law was suspended, among other reasons, in order to allow potential defendants under the new law to take out liability insurance, and to complete legislation of an ordinance mandating automobile insurance for third-party risks (hereafter the Insurance Ordinance).Footnote 30 Amendments to the (still suspended) CWO were published in March 1947.Footnote 31 The Insurance Ordinance was enacted two weeks later, and the amended CWO was brought into effect in June 1947, less than a year before the end of British rule in Palestine.Footnote 32

The legislation was seen by the public (and portrayed by its drafters) as a response to Sherman and “all the injustice done to the plaintiff” in that case.Footnote 33 Echoing Goadby’s characterization of the existing law as “inadequate,” Attorney General Fitzgerald went on to portray the new ordinance in terms that corresponded with Frumkin’s substantive critiques: “The enactment of a comprehensive code of civil wrongs is… as progressive a step as it is a desirable one, particularly as it introduces such general concepts as liability for damage arising through negligence, and vicarious responsibility for the acts of others….”Footnote 34 The Palestine Post explained that the CWO was designed to put an end to the “state of lawlessness” brought about by Sherman, and went on to point to the salient features of the reform: “The most important class [of torts] includes all types of negligence…. This class is likely to cover most of the industrial and road accidents where negligence on the part of any responsible person is involved.” Also “of special importance” was the imposition of vicarious liability on employers.Footnote 35 Insurance executive Moshe Erhard welcomed the “revolutionary” new legislation that would replace the “outdated legal conception” of Sherman, bringing with it increased liability and larger damages.Footnote 36 Attorney Aharon Polonsky, too, looked forward to the correction to be made by the CWO, asking readers of the Jewish Bar Association’s journal to try and calculate “from the day of publication of the well-known case of Sherman v. Danovitz, how many victims, accidents and cases of negligence have taken place in this country during the war alone: on the roads, in the factories, in the military camps, etc., that have remained without compensation or remedy.”Footnote 37

The distributive significance of the importation of English law

The introduction of a tort regime that was English in its broad contours was a sea change. But the most significant change was neither cultural nor national, but distributive: This “revolutionary measure,” explained the Attorney General, would bring about a spate of lawsuits by victims, driven by increased liability imposed on those who had caused them damage;Footnote 38 as a despatch to the Colonial Office put it, the forthcoming ordinance was expected to “swamp the courts” with litigation.Footnote 39 No longer would the costs of accidents fall primarily on victims; they would now shift to those at fault for the losses. This major change in the incidence of the costs of accidents came about in a British colony through an English-flavored statute, but Anglicization as such was of peripheral importance; any modern system of tort law would have had similar effects. The Palestine Post had it right when it declared in a 1947 headline: “Law of Torts”—not the common law of torts, but simply the law of torts—“To Be Introduced.”Footnote 40

The primary effect of the new torts regime was a radical expansion of civil liability faced by manufacturing, business, and other powerful groups. Though both injurers and accident victims may, in principle, hail from any socio-economic group, the net effect of the expansion of liability was progressive: the wealthy and business organizations were in general behind the activities that caused most damage, whether in industrial, transport or other accidents, while most of the population, and thus most accident victims, belonged to the lower economic strata. The progressive redistribution effected by the expansion of liability also resulted from the circumstance that poorer defendants are, as a rule, unable to pay significant damages, and so are in practice largely immune to tort liability (“judgment-proof”); the CWO’s expansion of tort liability thus significantly increased the costs borne by defendants with “deep pockets,” such as businesses, while barely affecting the costs borne by working-class tortfeasors.

The CWO expanded tort liability in a number of ways. First, it detached tort liability from criminal responsibility and criminal prosecution. With a long list of torts creating civil liability, victims of harm could now sue for damages regardless of whether a crime had been committed or whether the state had decided to prosecute the crime, and compensation could be awarded without the plaintiff needing to carry the heavy burden of proof necessary to establish criminal guilt. Bringing an action for compensation was thus considerably eased, so that those causing accidents, such as motor vehicle owners, employers, and manufacturers, were now liable to be sued, and victims now able to sue, much more often. This in and of itself was a major distributive shift.

Substantively, as well, tort liability is now attached to a much wider range of activities than before. Most important was the creation of a general tort of negligence under which victims could sue for losses incurred in an unlimited range of fact scenarios; no requirement of mens rea on the part of the tortfeasor, an element necessary for compensation claims based on classic criminal liability—just the far more expansive standard of fault or unreasonableness.Footnote 41 This was a major shift in the costs of accidents in favor of victims, with costs falling particularly on the broad shoulders of manufacturers, as evidenced by the iconic British and American negligence decisions of this era.Footnote 42 It bears noting at this point that whatever the historical merits of Horwitz’s argument about the subsidy to capitalist industrialists achieved through fault-based liability in the nineteenth century, the expansion of negligence in the mid-twentieth century had the opposite distributive effect, as argued by Leon Green, among others.Footnote 43 If this was true in the Anglo-American world, where negligence was simply expanded in this period, it was exponentially more so in Palestine, where negligence replaced not strict liability (as in Horwitz’s argument about nineteenth-century US law) but a regime of practically no civil liability.

Liability was additionally expanded through the tort of breach of statutory duty,Footnote 44 which, in a departure from Ottoman law,Footnote 45 imposed civil liability for the violation of any law—not just the classic crimes of the penal code but the myriad new regulatory duties imposed on businesses, drivers, and others by modern legislation, many of which dispensed with not only criminal intent, but even the fault requirement, imposing strict liability.Footnote 46 The upshot was that liability now attached to a much wider range of risk-creating activities than previously, including unintentional harms caused by routine actions that were in violation of some regulation, particularly in the realm of industrial safety.Footnote 47

Another major shortcoming of the previous tort regime—the lack of compensation for bodily harm—was remedied by the CWO’s definition of “damage,” which included loss of life and detriment to bodily welfare.Footnote 48 Accident victims would no longer be limited to meager compensation for the peripheral harms of the accident; those responsible for the accident would have to bear a much higher proportion of its full costs. As one judge warned employers, the new law “would easily swell the damages” they paid for workplace accidents “into well over 4 figures.”Footnote 49

Liability was further extended by adoption of the doctrine of the vicarious liability of employers for the torts committed by their employees, even when the employers’ own conduct was blameless (“respondeat superior”).Footnote 50 Imposition of strict liability on employers not only moved the costs of accidents from workers, cogs in the wheels of their employers’ machines, to parties typically better able to control and manage the level of risk, but it also usually ensured that victims would be able to recover their damages from the relatively deep pockets of the employer behind the typically impecunious and judgment-proof employees.Footnote 51 The judgment-proof problem was also ameliorated by the adoption of the Insurance Ordinance enacted along with the CWO, ensuring that victims of automobile accidents would be able to recover damages irrespective of the financial resources of the drivers responsible for the accidents.

In sum, the broad outlines of the Civil Wrongs Ordinance signified something far more momentous than the Anglicization of the tort law of Palestine (and from May 1948, of Israel). The most egregious shortcomings of the previous liability regime had been remedied, as can be seen by comparing Sherman v. Danovitz, based on pre-CWO tort law, to cases decided shortly after the adoption of the Ordinance. While Feivel Danovitz, under the old torts regime, was denied compensation for the medical costs and lost income resulting from his being run down by a truck, receiving only a paltry sum for the damage to his clothing, in a similar “running-down” case in the summer of 1947 the plaintiff was awarded the substantial sum of LP 217 in compensation.Footnote 52 Likewise, David Abramovitz, hit by a car in Tel Aviv’s Dizengoff Circus in April 1949, was awarded damages not only for the medical costs and lost income denied Danovitz, but also for the pain and loss of function in his knee resulting from the accident.Footnote 53 Moreover, even were the defendant in Abramovitz unable to pay the significant damages, the Insurance Ordinance required him to carry insurance that would compensate the victim for these harms. Similarly, Danovitz’s inability to reach the deep pockets of the employer of the driver who hit him can be contrasted with the post-CWO case of Gordin v. Pilarksy, in which the driver of the vehicle that hit the victim bicyclist was not even sued, the plaintiff winning damages purely through the vicarious liability of the employer.Footnote 54

Contemporaries recognized that the CWO represented “a progressive step.”Footnote 55 The Palestine Post thought that it marked “the beginning of a new period in the development of Palestine law”Footnote 56 and “a revolutionary change in the legal and economic life of Palestine,”Footnote 57 one of its editors explaining, under the headline “Protecting Innocent Injured Parties”:

The advent of the Civil Wrongs Ordinance… will bring the Law of Torts into operation and give rise to numbers of actions, and possibly later, the payment of large sums as damages… such as has never been seen in this country before. Broadly speaking the new Ordinance is a protection for all members of the public against the negligent acts of others….

To say that this new Ordinance is long overdue is an understatement, for it is rational to say that an innocent injured party must have some protection against the wilful and negligent acts of irresponsible parties. Why, for instance, should a man and his family be faced with a life of misery and insecurity because another has injured him seriously, so as to affect his whole existence for the rest of his life? To this end the new [legislation] is progressive and necessary.Footnote 58

Particularly fulsome in his praise was M.R.F. Rogers, Chief Magistrate of the Tel Aviv District, in a 1945 lecture to employers: The CWO, he claimed, exemplified “that upward path to perfect justice which it has always been our aim to traverse”;Footnote 59 “in having introduced the Civil Wrongs Ordinance those responsible for the guidance of the destinies of the people of Palestine have scaled one more height and moved one more pace forward on the upward path to perfection.”Footnote 60

S. Herzfeld’s commentary on the ordinance identified the main groups of potential defendants who he thought would now need to insure themselves against liability: motorists, employers, professionals, industrialists, and owners and occupiers of real property.Footnote 61 Rogers, after explaining to employers the expected expansion of their liability under the new law, urged them: “Avoid negligence in the factories, avoid it in the streets, avoid it in the workshops, and you will have the satisfaction of knowing that you have done all you can to make the conditions of modern industry safer for your fellow-men whom this legislation has been also designed to protect.”Footnote 62 Progressive lawyer Zvi Bar-Niv, in addition to pointing out the advantages of the CWO for injured workers, suggested that tenants would be able to use the new tort of negligence to compel landlords to keep their premises in healthy condition.Footnote 63

At the same time, the new legislation, which in general worsened the position of industry, enjoyed some support in at least one commercial sector—the insurance industry. Advertisements by insurance companies offering to insure liability under the new ordinance, most of them taken out even before it was fully enacted, suggest that the CWO was expected to be a boon to the insurance business.Footnote 64 One insurer wrote of a wave of inquiries from potentially liable parties in the wake of its legislation,Footnote 65 with another advertising: “You are WRONG in underestimating the Civil Wrongs Ordinance. You are RIGHT in taking out an Insurance Policy.”Footnote 66

Many of the progressive changes brought about by the new tort legislation could have been implemented simply by a general adoption of the common law of torts, a step taken in any case by the Supreme Court of Palestine in its decision overturning Sherman just before entry of the CWO into force.Footnote 67 But the Civil Wrongs Ordinance went significantly farther than the common law.

Beyond the Common Law

While “Anglicization” captures neither the essence nor the import of the broad changes, discussed above, wrought by the CWO, these changes were nonetheless admittedly the result of the importation of English legal norms to Palestine. Yet at the same time, the Ordinance contained a host of rules that departed from the common law, often embodying reforms that went beyond contemporary English tort law.Footnote 68 These reforms, like the general thrust of the CWO, benefitted mainly the pedestrian accident victim—workers, consumers, “everyman”—at the expense of businesses and the wealthy. For ease of discussion, they will be grouped here into rules expanding the scope of liability beyond that found in English law; those abolishing common-law defenses available to tortfeasors; those increasing the compensation payable by defendants found to be liable; and reforms tailored to the particular interests of organized labor.

Expanding torts

Just a few years before the CWO was drafted, the House of Lords case of Donoghue v. Stevenson had recognized a general tort of negligence at common law.Footnote 69 Yet the tort of negligence in Palestine created broader liability than its English counterpart. The convoluted section 50 of the Ordinance declared:

  1. (1) Negligence consists of—

    1. (a) doing some act which in the circumstances a reasonable, prudent person would not do, or failing to do some act which in the circumstances such a person would do…

    2. (b) …

    3. in relation to another person to whom the person doing or failing to do the act… owes a duty in the circumstances not to do or fail to do the act…, as the case may be.

  2. (2) For the purposes of subsection (1), every person owes a duty to all persons whom, and to the owner of any property which, a reasonable person ought in the circumstances to have contemplated as likely in the usual course of things to be affected by the doing or failure to do any act…

This definition evinces subtle but important expansions of the ambit of negligence when compared with both Donoghue and the Cyprus Civil Wrongs Law.Footnote 70 Unlike the majority opinions in Donoghue (the minority opinions would have not recognized a general tort of negligence at all), the emphasis in the CWO’s definition was on the unreasonable nature of the defendant’s action; the limiting element of “duty of care” defined broadly, with no mention of “neighbours”Footnote 71 or of “categories of negligence” that courts would have to work out,Footnote 72 and no limited list of cases in which the duty not to be negligent existed, as in the Cyprus law.Footnote 73 This weakening of the “duty” element was further encouraged by local criticism of the 1942 Draft Ordinance, calling for doing away with it entirely.Footnote 74 Nor did the CWO mention any of the many narrowing doctrines developed by common law courts, such as severely limiting the duty of care in cases of failure to act (“nonfeasance”) or of careless statements.Footnote 75 “The extensive definition of ‘duty’ given in the Ordinance,” explained a commentator, “covers the bulk of cases.”Footnote 76

Under the heading of negligence, the CWO also expanded the liability of landowners and occupiers. While the common law imposed a duty of care on an owner or occupier of land toward “bare licensees” (i.e. those entering land, with permission, for their own purposes) for damage caused by hidden dangers only if the owner or occupier was actually aware of the dangers,Footnote 77 the Palestine ordinance (following the Cyprus law) imposed liability even when they were merely presumed to have known of them.Footnote 78

Another tort, breach of statutory duty, was relatively new in the common law.Footnote 79 Absent from the Cyprus Civil Wrongs Law and the early versions of Palestine’s CWO, it entered Palestine’s law in the 1947 amending ordinance, due to concerns about worker safety.Footnote 80 The definition of this tort, too, in the CWO was broader than that in England. While in England, civil liability applied only if the breached duty was intended for the benefit of the plaintiff, but not if it were intended for the benefit of people in general,Footnote 81 the Palestine ordinance expanded the reach of the tort to include statutory duties for the benefit of “persons generally.”Footnote 82 Moreover, while the English tort required that the claimant persuade that the breached statute intended to provide a civil remedy,Footnote 83 the Palestine version required only that it did not intend to exclude such a remedy.Footnote 84

This tort, with its broad application and strict liability for violations of regulatory offenses, created ex nihilo a huge amount of civil liability, particularly for businesses subject to the many new regulatory laws of the Mandate years, such as the Trades and Industries (Regulation) Ordinance, Public Health Ordinance, Factories Ordinance, Road Transport Ordinance, and Railways Ordinance.Footnote 85 The beneficiaries of this liability were largely the consumers, neighbors, workers, and motor vehicle victims protected by these laws. It is telling that an early commentary on the CWO discussed these last two categories of cases in its explication of the new tort.Footnote 86

Abolishing Defenses

Perhaps even more significant than the narrow definition of torts under the traditional common law for protecting powerful (particularly industrial) interests in England was the availability to tortfeasors of defenses that in practice nullified their liability even if the elements of a tort had been proved, thereby bestowing “financial benefit on employers and immeasurable suffering on the working class.”Footnote 87 Two defenses in particular, “common employment” and “contributory negligence,” worked to drastically limit the tort liability of industrial owners toward their workers. “The result,” as a contemporary scholar put it, “was that workers rarely could recover damages for injuries sustained in their employments.”Footnote 88

Since the early nineteenth century, the common law’s doctrine of the vicarious liability of employers for the torts of their employees had an important exception known as “common employment” or the “fellow servant rule,” according to which a tort victim was precluded from suing his employer for injury caused to him by the acts of another employee.Footnote 89 This defense essentially meant that vicarious liability could never be imposed on employers for damage caused to their employees, as the direct tortfeasor was practically always a colleague of the worker-victim. Moreover, as fellow employees generally did not have the deep pockets necessary to compensate their colleagues for serious injury, this rule not only insulated employers from liability for workplace accidents but also, in practice, prevented workers from receiving tort compensation for these injuries at all. Though somewhat limited in its effects in England by statute and judicial decisions (and abolished there in 1948),Footnote 90 at the time of the CWO’s legislation, English law still protected employers from liability in a wide range of cases and offered only limited compensation in cases where liability was recognized.Footnote 91

The Cyprus Civil Wrongs Law had codified the common law’s defense of common employment,Footnote 92 but after local lawyers called for its abolition, the government lawyers deleted it from the parallel section of the CWO, agreeing it was “unjustifiable.”Footnote 93 The result was a radical improvement in the ability of workers in Palestine to receive compensation for workplace injuries, and a corresponding increase in the liability and deterrence imposed on employers.

The other major defense, the common law rule of “contributory negligence,” stated that if the plaintiff (victim) was negligent in their own behavior, and this negligence was the “decisive cause” of the accident, their claim against the negligent tortfeasor must fail.Footnote 94 This rule, “the harshest doctrine known to the common law of the nineteenth century,”Footnote 95 acted as a powerful defense for employers, manufacturers, and vehicle owners, as an accident in these contexts would typically be the result not only of the lack of care of the defendant but also of some degree of carelessness by the injured party.

The 1942 draft of the CWO, following the Cyprus Law, sought to incorporate this common-law defense in the Palestine law,Footnote 96 but the English doctrine came in for criticism. Eric Mills, the Commissioner for Migration and Statistics, was withering in his attack on the traditional rule, urging that “Palestine lead the way in the removal of a ‘plaguy’ archaism in English law, a horrid spectre redolent rather of the smells of the baser sort of casuist alchemy than of the fresh flavours of Anglo-Saxon sense.”Footnote 97 He recommended that Palestine adopt instead what was then known in England as the “Admiralty rule,” according to which the negligence of the plaintiff would not serve as a total defense for the defendant, but only reduce the amount of compensation due, according to the relative degree of fault of the parties—and the version of the CWO published in 1944 did just that.Footnote 98 After the adoption of a similar rule in general English tort law in 1945,Footnote 99 the CWO was reworded to more closely track the language of the English reform.Footnote 100

The result of the adoption of this rule was a great expansion of liability for tortfeasors, who could no longer benefit from the extreme protection that the doctrine of contributory negligence offered them. “In England if a plaintiff contributed to the accident by his own negligence then he could not recover,” explained Chief Magistrate Rogers, “but here in Palestine the law deals not so harshly with such.” He warned employers: “It is not advisable to rely always on a workman’s carelessness for defence to an action for damages and it is up to you as employers to look after them, otherwise you will have only yourselves to blame if things go wrong.”Footnote 101

Increasing compensation

While the common law distinguished between different categories of harm, some of which, such as non-pecuniary loss and pure economic loss, were difficult to receive compensation for,Footnote 102 the CWO (largely following the Cyprus law) had a very broad definition of damage: “loss of life, or loss of, or detriment to, any property, comfort, bodily welfare, reputation or other similar loss or detriment.”Footnote 103 (Compare the contemporary English statutory reform, according to which “‘damage’ includes loss of life and personal injury.”Footnote 104 ) None of the common law doctrines limiting compensation for various types of loss were recognized in the CWO. This meant that victims would be entitled to fuller compensation for their losses, while tortfeasors correspondingly would be both obligated to pay greater damages for their harmful activities and incentivized to take greater care in their activities.

Even when the common law had recognized the notional liability of a defendant, no liability was imposed in practice if the tort resulted in most serious damage imaginable—death of the victim—under the theory that the right of action died with the victim. This perverse result was modified in early-Victorian England by “Lord Campbell’s Act,”Footnote 105 which allowed dependents to recover for pecuniary loss (i.e. loss of income, not sorrow or mental suffering) suffered by them as a result of the death.Footnote 106 Though English case law had excluded illegitimate children from the operation of this law, further statutory reform in 1934 brought them into its fold, at the same time allowing the deceased’s estate to sue for his pain and suffering before death.Footnote 107 While the Cyprus law of 1932 did not include these reforms, the Palestine CWO departed from the Cyprus model (and from the common law) and incorporated the latest pro-plaintiff provisions of the English statutory reforms.Footnote 108

Protections for organized labor

Another area in which the CWO’s progressive flavor could be seen was in its treatment of the interests of organized labor. Around the turn of the twentieth century, seemingly in reaction to new statutory measures meant to protect trade unions from criminal prosecution, English courts had revived or expanded certain torts, using them to impose civil liability on unions for labor disputes, so that “most forms of industrial action became tortious.”Footnote 109 As “civil liability proved far more punitive than imprisonment,” courts were now seen as “the chief threat to labour.”Footnote 110 Though the radical Liberal reforms of 1906 had ameliorated the problem in Britain itself by exempting trade disputes from some of these torts,Footnote 111 the anti-labor torts lived on in the common law—not only in theory, but in colonial jurisdictions.Footnote 112

The common law tort of conspiracy imposed liability on those combining to harm another, even if the harmful activity was on its own legal and non-tortious.Footnote 113 This tort had been used in England primarily against trade unions whose organizing and strike activities, though otherwise legal, harmed employers.Footnote 114 The Cyprus Civil Wrongs Law had omitted this tort with little comment; the drafter, Attorney General Trusted, simply noted the omission as a departure from the common law.Footnote 115 In Palestine, a section adding the tort to the CWO was drafted in 1946 but rejected, apparently in order to protect trade union activity.Footnote 116

The related tort of intimidation, imposing liability for threats to third parties that injured the plaintiff, could also be used against union activity, and the 1906 reforms in England failed to exempt trade disputes from its ambit.Footnote 117 This tort, too, was not incorporated in the CWO, thus leaving the labor movement in Palestine free to act without the threat of liability under these controversial torts.Footnote 118

Similarly, the common law tort of inducing breach of contract had been deployed in England against trade unions for labor actions, which arguably involved inducing workers to breach their employment contracts.Footnote 119 The Cyprus law included this tort, reproducing, Trusted said, the English law, though the implications for trade unions had been pointed out to him.Footnote 120 In deference to the trade unions the drafters of the Palestine Ordinance sought to prevent this use of the tort by excluding it from its definition: “Any person who, otherwise than in furtherance of a strike or lockout in respect of a trade dispute within the trade or industry in which the strikers or persons locking out are engaged, knowingly and without sufficient justification, causes any other person to break a legally binding contract with a third person commits a civil wrong against such third person.”Footnote 121

Though some, including the Communist Kol Ha’am newspaper, argued that the highlighted clause, by limiting immunity to nonpolitical strikes, did not go far enough in the protection of labor’s interests,Footnote 122 the modification of this tort and the omission of conspiracy from the CWO were nonetheless further indications of the pro-labor tenor of the new law.

Legal history in reverse: Workers’ compensation and tort law

While the previous sections of this article have looked at ways in which Palestine’s Civil Wrongs Ordinance marked a departure from the Ottoman liability regime that preceded it and from English common law, in this section I aim to question the utility of the “Anglicization” framing by noting an area of the law in which the CWO exactly reflected English law, but did so in the “wrong” chronological order, thus flipping the meaning or significance of Anglicized tort law.

Unlike the situation in most of the United States, in which workmen’s compensation statutes (to use the contemporary term) barred injured workers from suing their employers under the private law of tort,Footnote 123 Palestine’s law replicated English law in allowing injured workers to receive compensation under whichever scheme gave them a better deal.Footnote 124 Though “Anglicization” would thus seem to be an apt characterization for the relationship between tort law and workmen’s compensation scheme in Palestine, its meaning or significance diverged radically from that in Britain (or the USA, for that matter): In those jurisdictions workmen’s compensation regimes were typically seen as modern, progressive responses and correctives to the limitations of tort law, particularly the fault requirement and the legal obstacles imposed on injured parties by the defenses discussed above.Footnote 125 Alternately, they were considered by critics from the left to be a tool of employers to stave off proposals for reform within tort law that would have abolished those pro-employer defenses.Footnote 126 Yet historical explanations of the relationship between tort law and the compensation schemes that largely displaced it, developed in the context of other legal systems, are unhelpful in the case of Palestine, where the Workmen’s Compensation Ordinance was enacted in 1927, two decades before the legislation that brought in tort law.Footnote 127

In Palestine the order of the legal developments—and hence their significance—was reversed: The CWO was the modern legal reform, enacted in part to remedy the shortcomings of workmen’s compensation law, such as its application only in cases of workplace “accident”—leaving out occupational disease and injuries sustained while traveling to or from work—and the lack of compensation for medical expenses.Footnote 128 But perhaps the biggest advantage of the CWO over workmen’s compensation from the worker’s point of view was explained by Chief Magistrate Rogers in his 1945 lecture:

It is to be expected in the future [under the CWO] that many more actions will be brought by injured workmen for negligence than for [workmen’s] compensation. The reason is that if successful the damages which will flow will be infinitely higher than any compensation would be. Take e.g. the case of a workman who loses an eye. All he could get under the Workmen’s Compensation Ordinance would be a weekly payment while he was off work, and as soon as he was fit to be back at work and the employers were prepared to take him back at a job that a man with one eye could do then compensation stops.

At common law, on the other hand, he would recover damages for the loss of his eye, in itself a formidable sum, damages for pain and suffering, damages for loss of wages, medical and possibly surgical attention, extra food and nourishment and even the cost of a recuperative holiday.

Such items would easily swell the damages into well over 4 figures, and you can easily see how with the right of election before him, your injured workman will always choose that course which will compensate him higher for the injuries he has sustained.Footnote 129

If we must fit the enactment of the CWO in Palestine into an existing narrative about the history of tort law, we might view it as part of the general expansion of tort liability around the common-law world in the mid-twentieth century.Footnote 130 Or perhaps the workmen’s compensation legislation of the early Mandate period laid the groundwork for the later expansion of liability in tort, as suggested by Rogers’s lecture on the expansion of employers’ liability under the CWO.Footnote 131

Nonetheless, the Anglicization of the law of compensation for workers’ injuries in Palestine had the opposite meaning that it had in much of the common-law world: While elsewhere workers’ compensation statutes were designed to ameliorate the harshness of the English common-law limits on compensation (or to limit employers’ liability), in Palestine English-style tort law aimed at ameliorating the shortcomings of workers’ compensation law—and in so doing sharply increased employers’ liability. In this respect, the Anglicization framing, while factually accurate, is not only beside the point but misleading.

Conclusion

Why did Palestine’s Civil Wrongs ordinance go significantly beyond both the common law and the Cyprus Civil Wrongs Law in progressively shifting the costs of accidents from the working classes to businesses and the wealthier classes? Unfortunately, the official explanations of the legislation’s goals as well as the archival documentation of the legislative process provide only hints. Outrage among lawyers and the general public over the paltry compensation awarded Feivel Danovitz in Sherman seems to have created an impetus for reform that ultimately went beyond what was strictly necessary to fill the lacunae revealed by this case or intended by the drafters of the early versions of the CWO. The power of the Jewish labor federation in Palestine, the Histadrut, also likely played a part in adoption of the increased protections for workers and for organized labor.Footnote 132 To these may be added a favorable political environment, with the British Labour Party in government throughout the 1940s. There may have been an element of progressive colonial experimentation at work, but there is no evidence of any direction from London or thought-out plan here; just ad hoc corrections and amendments to draft legislation in response to local comments.Footnote 133

Whatever the law’s motivations, the story of the enactment of the CWO, seen through the lens of the distribution of the costs of accidents rather than “Anglicization,” sharpens our understanding of tort history in several respects and suggests as well what I think is a fruitful framing for other histories of law, particularly in imperial and transnational or trans-systemic contexts.

On the local level, the findings presented here and the distributive analysis cast doubt on the way the CWO has typically been understood, as a codification of the common law of torts. While the Ordinance was firmly planted in the world of English legal discourse—it was far more English than French, Ottoman, Jewish, or anything else—it nonetheless departed from the common law, and from English law more broadly, in many significant ways. Moreover, it almost always did so in a way that favored the interests of workers and other common folk over those of businesses and the wealthy.Footnote 134 As Aharon Barak wrote in his dissertation book, “We will best understand our [tort] law if we understand its deviations from English law.”Footnote 135

For the historiography of tort law more generally, the present account returns to the distributive lens advanced by Horwitz, but from the opposite direction, arguing that Palestine’s CWO marked a shift of resources from the capitalist classes in favor of labor. As suggested by Leon Green’s analysis, it seems that this shift may have been part of a similar secular shift across many legal systems of the time. But if in the USA, as John Witt has argued, the common law of torts reflected the ideology of “free labor,”Footnote 136 in Palestine, the CWO’s “common law codification” better reflected the interests of organized labor and the laboring classes. The article thus calls for a reappraisal of both the connotations of “the common law” and the direction of change in tort law over time.

Finally, the story of Palestine’s Civil Wrongs Ordinance holds lessons for the broader fields of the legal histories of empires and of legal transplants or diffusion, calling for a shift in conceptual and theoretical focus. “Anglicization” is just one of the phenomena centered on legal origins on which accounts of legal developments in a variety of contexts often dwell, and they usually do so through the lens of identity, legal families, and culture. Yet categories such as Anglicization, civil law influences, the reception of Roman law, and the like should be the beginning of analysis, not the end. When legal systems adopted norms from others, there were usually material, not just symbolic, interests in play, with winners and losers in terms of resources, costs, and benefits. Paying attention to the distributive stakes of legal transplants not only offers explanatory possibilities but also makes clear the importance of legal history for understanding the world created by these transplants.

Staying close to the legal history of torts in Mandate Palestine, the payoff of re-emphasizing the distributive lens may be seen, for instance, when considering the further development of Israeli tort law in the period after that examined in this article. Judicial decisions in tort cases of the early decades of Israel’s statehood (1950s–60s) often applied the doctrines of English case law to limit the liability of tortfeasors, frequently against the language of the CWO.Footnote 137 While this phenomenon can be viewed as evidence of the persistent cultural power of English law on Israeli lawyers and judges, the account presented here opens the additional possibility of recognizing in these developments a reactionary move by judges in the face of labor-friendly legislation. Correspondingly, the tort decisions of Justice Aharon Barak in the 1980s that overthrew earlier, restrictive conceptions might be seen not only as a judicial declaration of independence from English law (as Barak himself sometimes painted it),Footnote 138 but as a return to the plain meaning of the legislative text and the progressive policies it embodied.Footnote 139 This is but one example of how emphasizing distribution may lead us to better understanding of legal history.

Acknowledgments

The author wishes to thank Yael Gazit, Asil Sager, Noga Sherman, Jonathan Hasson, Maya Frenkel, Elad Zuberi, and Maya Gonen for research assistance, and Assaf Likhovski, Avihay Dorfman, Elchai Zivan, and Aharon Barak for their insights.

Funding statement

Funding was provided by the Berg Institute for Law and History at TAU and the Israel Science Foundation (grant 3273/24).

David Schorr is a senior lecturer at Tel Aviv University’s Faculty of Law, where he teaches torts, environmental law, and legal history. He is currently researching the history of the Judicial Committee of the Privy Council.

References

1 See e.g. Jane Ohlmeyer, Richard J. Ross, Philip Stern: “Anglicization of and through law: British North America, Ireland, and India Compared, 1540–1800,” Journal of Modern History (forthcoming); Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy (New Haven: Yale University Press, 2023).

2 Assaf Likhovski, Law and Identity in Mandate Palestine (Chapel Hill: UNC Press, 2006); Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (Cambridge: CUP, 2014).

3 E.g. Izhak Englard, “The Law of Torts in Israel: The Problems of Common Law Codification in a Mixed Legal System,” American Journal of Comparative Law 22 (1974): 302–29, 303; Aharon Barak, “Codification of Civil Law and the Law of Torts,” Israel Law Review 24 (1990): 628–50, 639.

4 Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: HUP, 1977).

5 In this respect my argument resembles that of Leon Green, Traffic Victims: Tort Law and Insurance (Evanston: NWU Press, 1958), 35–61.

6 The British ruled Palestine 1917–1948, under a Mandate from the League of Nations from 1923. The general policy in the British Empire with regard to territories acquired by cession was to leave their legal systems in place, changing them incrementally by legislation as time went on; Bursett, Empire of Laws. Article 46 of the Palestine Order in Council, 1922, Drayton 2580, applied this policy to Mandate Palestine as well. See Likhovski, Law and Identity.

7 CA 88/30 Haifa v. Khoury, 1 PLR 724 (1930); F.M. Goadby, “The Moslem Law of Civil Delict as Illustrated by the Mejelle,” Journal of Comparative Legislation and International Law 21 (1939): 62–74.

8 Ibid; CA 18/39 AG v. Blam, 6 PLR 247 (1939); Ottoman Penal Code Chap 2 Pt I, The Imperial Ottoman Penal Code (London: Humphrey Milford, 1913). Compensation previously available to victims was limited by the Civil and Religious Courts (Jurisdiction) Ordinance, 1925, Drayton 141, and the replacement of the Ottoman Penal Code by the Criminal Code Ordinance, 1936, s 43, PG 984.

9 AG v. Blam; Sherman v. Danovitz, 7 PLR 363 (1940).

10 M.R.F. Rogers, “The Civil Wrongs Ordinance and its probable effect on claims under the Workmen’s Compensation Ordinance,” Government of Palestine Department of Labour Bulletin 11 (1945): 9–15, 10.

11 Attorney-General at press conference (apparently 7 Feb 1945), AG file 19/257 II, M-724/14, Israel State Archives (hereafter ISA). See also Goadby, “Moslem Law,” 62; A. Polonsky, “Hukat HaNezikin,” Hapraklit 1 (1943): 3–8, 4 (Hebrew).

12 Z. Bar-Niv, “Im Pirsum Hok-HaNezikin,” Al Hamishmar 21 Jan 1945, 2 (Hebrew).

13 F.M. Goadby, “Introduction,” Journal of Comparative Legislation and International Law 16 (1934): xxviii, xxxi.

14 7 PLR 363.

15 Article 46 of Palestine’s constitution, the Palestine Order in Council, Drayton 2580, allowed for the import of common law in cases where the statute law of Palestine did “not extend or apply.” See Likhovski, Law and Identity, 61.

16 These latter arguments feature prominently in Likhovski’s analysis of national identity in the legal history of Mandate Palestine, ibid. 61–83.

17 Sherman v. Danovitz 371–72.

18 Albert Loewenthal, “Compulsory Third Party Insurance,” Palestine Post 25 Mar 1940, 11; Albert Loewenthal, “A.R.P. Effects on Insurance,” Palestine Post 30 Mar 1941, 2. See also Diogenes, Palestine Post 4 Apr 1941, 4.

19 “New Civil Wrongs Ordinance Welcomed,” Palestine Post 31 Dec 1944, 3.

20 “Matay Yafeh Koho Shel Hok HaNezikin HaAngli Gam BaAretz?,” Davar 8 Sep 1940, 4 (Hebrew).

21 F. Perles, “On Taxation and Liability,” Palestine Post 26 Apr 1946, 7.

22 M. Dunkelblum to Chief Secretary, 9 Apr 1946, CSO file J/54/40 III, ISA M-279/29. See also “LeShe’elot HaSha’a,” Hapraklit 3 (1946): 97–98 (Hebrew).

23 George M. Khoury to Attorney General, 24 May (1947), AG file 19/257 II. The Arabic-language press seemed largely indifferent to the CWO and surrounding issues, with mostly laconic recitals of the main points of government statements on the legislation; see e.g. “Mashrua’ Qanun Al-Mukhalafat Al-Madaniyya,” Filastin 30 Jan 1942, 2 (Arabic). The exception proving the rule was a short item in which attorney Shakib Aljayusi complained that no Arab lawyers had commented on the law, especially with regard to its repealing large parts of the Mejelle, “Qanun Yulghi 100 Madah Min Majallat Al-Ahkam,” Al-Sha’b 14 Jul 1947, 4 (Arabic).

24 Khoury Syndic v. Germain, 7 PLR 94, 99 (PC 1940); “Ottoman Law and the Shari’a,” Journal of Comparative Legislation and International Law 22, no. 1 (1940): 95–99, 96; Trusted to High Commissioner, 26 Mar 1940; Trusted to High Commissioner, 5 Apr 1940; MacMichael to Chief Justice, 27 Jan 1942, CSO file J/54/40 III.

25 John Strawson, “Orientalism and Legal Education in the Middle East: Reading Frederic Goadby’s Introduction to the Study of Law,” Legal Studies 21 (2001): 663–78; “Note by Mr. Goadby”, CC file 25/7, M-829/7, ISA.

26 Civil Wrongs Law, 1932, Cyprus Gazette 385.

27 A.N. Allott, “The Codification of the Law of Civil Wrongs in Common-Law African Countries,” Sociologus 16 (1966): 101–22, 108–9.

28 Trusted to High Commissioner, 26 Mar 1940; Trusted, Memorandum on the Civil Wrongs Bill, enclosed with Cyprus Despatch No. 438, 22 Oct 1930, file SA1/1423/1930/1, Cyprus State Archives.

29 Draft Ordinance to Define and Amend the Law of Civil Wrongs, 1942, PG 97; Civil Wrongs Ordinance, 1944, PG supp 1, 129.

30 Notice Regarding the Civil Wrongs Ordinance, 1944, PG 1944 1252; Draft Civil Wrongs (Amendment) Ordinance, 1947, Objects and Reasons, PG supp 3, 11.

31 Civil Wrongs (Amendment) Ordinance, 1947, PG supp 1, 40.

32 Motor Vehicles Insurance (Third-Party Risks) Ordinance, 1947, PG supp 1, 49; Notice, PG 1947 supp 2, 981; Civil Wrongs (Amendment) Ordinance, 1947 s 11.

33 A. Polonsky, “Nezikin Beli Hok Nezikin,” Hapraklit 4 (1947): 182–87, 187 (Hebrew). See also Notice Regarding the Civil Wrongs Ordinance; Attorney-General at press conference; Rogers, “The Civil Wrongs Ordinance,” 10; S. Herzfeld, Introduction into Civil Wrongs Ordinance (Tel Aviv: Bursi, 1947), III; “Law of Torts To Be Introduced on July 15,” Palestine Post 3 Jul 1947, 1.

34 Draft Ordinance to Define and Amend the Law of Civil Wrongs, Objects and Reasons, PG 1942 117.

35 “New Civil Wrongs Ordinance Welcomed.” According to Polonsky’s contemporary analysis (“Nezikin,” 185), vicarious liability would not have been imported to Palestine by judicial imposition of the common law of torts, due to provisions of the Mejelle (aa 89, 922) that ruled out such liability.

36 Moshe W. Erhard, “Bituah Hova LeBaalei Mechoniot,” Haaretz 18 Jun 1947, 3 (Hebrew).

37 Polonsky, “Nezikin,” 182.

38 W.J. FitzGerald to H.H. Duncan, 12 Jan 1943, AG file 19/257 I, ISA M-742/13.

39 High Commissioner to Secretary of State, 24 Mar 1944, Palestine file 76271/1944, UK National Archives CO 733/469/9. See also Goadby, “Introduction,” xxxi–xxxii.

40 “Law of Torts.” See also “Civil Wrongs Ordinance Amended: Law of Torts Introduced,” Palestine Post, 28 Dec 1944, 3.

41 CWO s 50. Unless otherwise specified, references to the CWO are to the 1944 version (PG supp 1, 129) as amended by the 1947 amendments (PG supp 1, 40). No official text of the amended ordinance was published until the new Israeli version of the ordinance was enacted in 1968; Civil Wrongs Ordinance (New Version), 2 LSI 5 (1972).

42 E.g. Donoghue v. Stevenson, [1932] AC 562 (HL); Macpherson v. Buick Motor Co, 111 N.E. 1050 (N.Y. 1916).

43 See Horwitz, Transformation, 85–101; Green, Traffic Victims.

44 CWO s 55A.

45 CA 101/26 J&P Coats, Ltd v. Kershenbaum & Blumenkrantz, 1 PLR 117 (1926).

46 See e.g. Yair Hakak, Regulation and the Making of the State in British Mandatory Palestine, 1930–1936 (PhD dissertation 2021).

47 K.M. Stanton, Breach of Statutory Duty in Tort (London: Sweet & Maxwell, 1986), 4.

48 CWO s 2. A further discussion of the expansive definition of “damage” is below around note 103.

49 Rogers, “Civil Wrongs Ordinance,” 12; “From Dan to Beersheba,” Palestine Post 29 May 1945, 3.

50 CWO ss 11, 12.

51 FitzGerald to Duncan, 12 Jan 1943.

52 K. Beecher, “Palestine’s Law of Torts,” Palestine Post 29 Aug 1947, 5. LP 217 in 1947 was equivalent to LP 152 in 1940, the year of the Sherman decision (Bank of England Inflation Calculator, https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator). Technically the new decision, following London Society for Promoting Christianity Among the Jews v. Orr, 14 PLR 218 (1947), relied on the English common law of torts and not the CWO (not yet in force at the time of the accident), but the result was the same; E.D. Gordon, Letter to the Editor, Palestine Post 1 Sep 1947, 4. Though the harms suffered by the plaintiffs in the two cases were presumably not identical, the fact that the difference between the judgments was of two orders of magnitude is striking in its distributive aspect.

53 CC 48/48 Abramovitz v. Nürnberg, Psakim 2 3 (TA 1949).

54 CA 404/54 Gordin v. Pilarksy, PD 9 1429 (1955).

55 E.D. Goitein to Chief Secretary, 2 Jun 1942, CSO file J/54/40 III.

56 “Torts Ordinance Drafted: Liability for Damage Introduced,” Palestine Post 29 Jan 1942, 1.

57 “Law of Torts.” Haaretz similarly called the legislation “a revolutionary turn in the legal life of the country,” “MeHayom – Hok Nezikin BaAretz,” 15 Jul 1947, 1 (Hebrew).

58 Beecher, “Palestine’s Law of Torts.”

59 Rogers, “Civil Wrongs Ordinance,” 9.

60 Ibid., 15.

61 Herzfeld, Introduction, 81–83.

62 Rogers, “Civil Wrongs Ordinance,” 15.

63 Bar-Niv, “Im Pirsum.”

64 Ad by The New Zealand Insurance Co., Palestine Post 25 Jan 1945, 3; Ad by “Misrah” Insurance Service, Palestine Post 22 Jul 1947, 2. See also “Yediot Calcaliot,” Hazofeh, 12 Apr 1945, 4 (Hebrew, expected “boom” in the insurance business due to the Insurance Ordinance). Insurers were of different minds as to whether regulation of premiums would be good or bad for business; compare Loewenthal, “Compulsory Third Party Insurance” with Erhard, “Bituah Hova.”

65 Ad by Hamishmar Insurance Service, Palestine Post 8 Aug 1947, 4.

66 Ad by United Insurance Office Ltd., Palestine Post 19 Jan 1945, 4.

67 London Society for Promoting Christianity Among the Jews v. Orr. See Likhovski, Law and Identity, 62–63 for a discussion.

68 Identifying departures from the common law and from the Cyprus legislation was facilitated by the working documents of the CWO’s drafters, preserved in the ISA, and by the incredibly helpful work of G. Tedeschi and A. Rosenthal, Civil Wrongs Ordinance in the Light of the History of Its Preparation and Amendments (Hebrew, Tel-Aviv: Massadah, 5723).

69 [1932] AC 562.

70 For an extremely narrow reading of the case’s holding, see the Law Reports headnote at ibid. See also R.F.V. Heuston, “Donoghue v. Stevenson in Retrospect,” Modern Law Review 20 (1957): 1–24; Steve Hedley, “Tort and Personal Injuries, 1850 to the Present,” in Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change, ed. T.T. Arvind and Jenny Steele (Oxford: Hart, 2013), 235–52, 244.

71 [1932] AC at 580 (Lord Atkin).

72 [1932] AC at 619 (Lord Macmillan).

73 Civil Wrongs Law s 46(2). For the process by which the Palestine Crown Counsel, Michael Hogan, replaced the limited list of duties from the Cyprus law with the wider definition of “duty” ultimately adopted in Palestine, see Elchai Zivan, “When Care Immigrated to Palestine: Shaping the Tort of Negligence in the Civil Wrongs Ordinance, 1932–1947” (forthcoming, on file with author).

74 E. Malchi to AG, 22 Feb 1942, CC file 25/7.

75 J. Charlesworth, The Law of Negligence (2nd ed., London: Sweet & Maxwell, 1947), 441; R.F.V. Heuston, Salmond on the Law of Torts (11th ed., London: Sweet & Maxwell, 1953), 502; Daniel Friedmann, “Infusion of the Common Law into the Legal System of Israel,” Israel Law Review 10 (1975): 324–77, 342.

76 Herzfeld, Introduction, 10.

77 See e.g. Heuston, Salmond on Torts, 573; Charlesworth, Negligence, 199–200.

78 CWO s 50(2) (proviso); Civil Wrongs Law s 46(2)(b); R. Gottschalk, “The Development of the Law of Torts in Israel,” Modern Law Review 24 (1961): 345–54, 351.

79 Not included, for instance, in the list of torts in P.H. Winfield, A Text-Book of the Law of Tort (4th ed., London: Sweet & Maxwell, 1948).

80 Civil Wrongs (Amendment) Ordinance, 1947 s 6; CWO s 55A; Grave to AG, 5 Apr 1945, AG file 19/257 II; Zivan, “When Care Immigrated to Palestine”.

81 Phillips v. Britannia Hygienic Laundry Co [1923] 1 KB 539, 547. See Glanville Williams, “The Effect of Penal Legislation in the Law of Tort,” Modern Law Review 23 (1960): 233–59.

82 CWO s 55A(2). See Englard, “Law of Torts,” 305.

83 James Goudkamp and Donal Nolan, Winfield and Jolowicz on Tort (20th ed., London: Sweet & Maxwell, 2020), 201.

84 CWO s 55A(1).

85 Respectively Drayton 1454; PG 1940 supp 1, 239; PG 1946 supp 1, 63; Drayton 1296; Drayton 1269. For the tort’s effects with regard to industrial accidents, see Williams, “Penal Legislation.”

86 Herzfeld, Introduction, 17.

87 Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: UC Press, 1999), 371; James Goudkamp, “Statutes and Tort Defences” in Tort Law, ed. Arvind and Steele, 31–56, 33.

88 Harry Weiss, “Employers’ Liability and Workmen’s Compensation,” in History of Labor in the United States,ed. John Rodgers Commons et al., vol. 3, (New York: Macmillan, 1935), 564, 567. See John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: HUP, 2006), 3 (the governing common law principles had been created “when judges had decided that workers rather than employers ought to assume the risks characteristic of their occupations”).

89 The classic precedent was Priestley v. Fowler, (1837) 150 ER 1030 (Ex Ch); Paul Mitchell, A History of Tort Law 1900–1950 (Cambridge: CUP, 2015), 211–13; Henry Slesser and Arthur Henderson, Industrial Law (London: E. Benn, 1924), 39–44.

90 Law Reform (Personal Injuries) Act, 1948, s 1(1); P.H. Winfield, “The Abolition of the Doctrine of Common Employment,” Cambridge Law Journal 10 (1949): 191–95.

91 Employers’ Liability Act, 1880, 43 & 44 Vict c 42. See Frank Tillyard, Industrial Law (London: A. & C. Black, 1916), 104–7, P.A. Landon, Pollock’s Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law (14th ed., London: Stevens and Sons, 1939), 89.

92 Civil Wrongs Law s 13(1) proviso (a); Civil Wrongs Bill, 1931, Notes on Clauses, Cyprus Gazette 415.

93 CWO s 12; Draft Telegram to Secretary of State [Nov 1944], AG file 19/257 II; Notice Regarding the Civil Wrongs Ordinance. For local criticism, see Malchi to AG; Jacob Kost to AG, 19 Aug 1942, CC file 25/7. For criticism in England, see William A. Robson, “Common Employment,” Modern Law Review 1 (1927): 224–25; Mitchell, History of Tort Law, 215–18.

94 See e.g. Winfield, Text-Book, 412.

95 Leon Green, “Illinois Negligence Law,” Illinois Law Review 39 (1944): 36–54, 36.

96 Draft Ordinance, 1942, s 52; Civil Wrongs Law s 51.

97 Mills to Attorney-General, 4 Feb 1942, AG file 19/257 II.

98 Maritime Conventions Act, 1911 (UK); Civil Wrongs Ordinance, 1944 s 50(2). The “Admiralty rule”’s civil law approach was imported to England by a 1910 treaty; Mitchell, History of Tort Law, 309–10. Mills’s position was also taken by lawyer Eliezer Malchi in his critique of the 1942 Draft Ordinance, Malchi to AG.

99 Law Reform (Contributory Negligence) Act, 1945 (UK).

100 Civil Wrongs (Amendment) Ordinance, 1947 s 5; CWO s 55C.

101 Rogers, “Civil Wrongs Ordinance,” 14.

102 See, e.g., Landon, Pollock on Torts, 38–40; Heuston, Salmond on Torts, 501–3.

103 CWO s 2. See G. Tedeschi (ed.), A. Barak, M. Cheshin and I. Englard, The Law of Civil Wrongs: The General Part (Jerusalem: Magnes, 1976), 162–63 (Hebrew); Civil Wrongs Law s 2(2).

104 Law Reform (Contributory Negligence) Act, 1945 (UK) s 4.

105 Fatal Accidents Act, 1846, 9 & 10 Vict c 93.

106 Slesser and Henderson, Industrial Law, 45; Richard Kidner, “A History of the Fatal Accidents Acts,” Northern Ireland Legal Quarterly 50 (1999): 318–35.

107 Slesser and Henderson, Industrial Law, 46; Law Reform (Miscellaneous Provisions) Act, 1934.

108 Cyprus Civil Wrongs Law, 1932 ss 15, 52; CWO ss 2 (“child”), 14, 55; Tedeschi and Rosenthal, Civil Wrongs Ordinance, 39–45, 109–16.

109 Goudkamp, “Statutes and Tort Defences,” 37.

110 John V. Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721-1906 (Oxford: Clarendon Press, 1991), 148, 155. See also Michael J. Klarman, “The Judges versus the Unions: The Development of British Labor Law, 1867-1913,” Virginia Law Review 75 (1989): 1487–1682.

111 Trade Disputes Act, 1906 ss 1, 3.

112 See, e.g., the South Australian case of McKernan v. Fraser [1930] SRSA 364; the dissent on appeal to the High Court of Australia, McKernan v. Fraser (1931) 46 CLR 343, 350–54; Corbett v. Can Natl Printing Trades Union [1942] 2 DLR 762 (Alberta). See BL, “Case and Comment,” Canadian Bar Review 20 (1942): 636, 638–39.

113 Norman Arthur Citrine, Trade Union Law, (2d ed., London: Stevens & Sons, 1960), 60.

114 Quinn v. Leathem [1901] AC 495 (HL); Klarman, “Judges versus the Unions,” 1501–13; William Cornish, “Law and Organised Labour 1867–1914” in The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development, ed. William Cornish et al. (Oxford: OUP, 2010), 667, 692–701.

115 Trusted, Memorandum.

116 Folio 55, AG file 19/257 II; B. Gross, “Hukat HaAvlot HaEzrahiot BeEretz Yisrael,” Hapraklit 5 (1948): 86–91, 91. See Trade Unions Ordinance, 1947, s 28, PG supp 1, 318.

117 Heuston, Salmond on Torts, 718–20; KW Wedderburn, “Intimidation and the Right to Strike,” Modern Law Review 27 (1964): 257–81.

118 Gottschalk, “Development of the Law of Torts,” 350.

119 South Wales Miners’ Federation v. Glamorgan Coal Co. [1905] AC 239 (HL); Orth, Combination and Conspiracy, 147–50.

120 Civil Wrongs Bill, Notes on Clauses; Trusted, notes from Select Committee meetings, file SA1/1423/1930/1.

121 CWO s 32 (italics added). See handwritten note “re Torts Bill” in AG file 19/257 II.

122 “Hok HaNezikin HaHadash Nichnas Hayom LeTokfo,” Kol Ha’am 15 Jul 1947, 4 (Hebrew). See also Bar-Niv, “Im Pirsum,” 3.

123 Arthur J. Amchan, “‘Callous Regard for Employee Safety’: ‘The Exclusivity of the Workers’ Compensation Remedy against Employers,” Labor Law Journal 34 (1984): 683–96.

124 CWO s 62; Workmen’s Compensation Ordinance, 1927, Drayton c 154 s 3(2)(b); Workmen’s Compensation Ordinance, 1947, s 13(1), PG supp 1, 197; Workmen’s Compensation Act 1925 s 29 (UK); H. Samuels and Robert S.W. Pollard, Industrial Injuries (2nd ed., London: Stevens & Sons, 1950), 87.

125 Lawrence M. Friedman and Jack Ladinsky, “Social Change and the Law of Industrial Accidents,” Columbia Law Review 67 (1967): 50–82; Robert L. Rabin, “The John G. Fleming Lecture: A Brief History of Accident Law – Tort and the Administrative State,” Tort Law Review 20 (2012): 11–18; P.W.J. Bartrip and S.B. Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy 1833–1897 (Oxford: Clarendon Press, 1983); Mitchell, History of Tort Law, 239.

126 James Weinstein, “Big business and the origins of workmen’s compensation,” Labor History 8 (1967): 156–74. See also Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge: CUP, 2020).

127 Workmen’s Compensation Ordinance, 1927. For a survey of various historiographical approaches to workmen’s compensation, see Witt, Accidental Republic, 128–29.

128 Herzfeld, Introduction, 21, 81–82; Legal Adviser, General Federation of Jewish Labour to Chief Secretary, 30 Jul 1947, CSO file I/LAB/23/47, M-4352/63, ISA; Inspector of Labour to Jerusalem Labour Council [1947], file IV-208-1-4434B, Lavon Institute Archive. The compensation scheme was extended to some industrial diseases in the Workmen’s Compensation Ordinance, 1947 s 18.

129 Rogers, “Civil Wrongs Ordinance,” 12. See also Herzfeld, Introduction, 21; Bar-Niv, “Im Pirsum”; and compare Holdren, Injury Impoverished.

130 See for example George L. Priest, “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” Journal of Legal Studies 14 (1985): 461–528; Kenneth S. Abraham and G. Edward White, “Rethinking the Development of Modern Tort Liability,” Boston University Law Review 101 (2021): 1289–358.

131 Compare Wex S. Malone, “Damage Suits and the Contagious Principle of Workmen’s Compensation,” Louisiana Law Review 12 (1951): 231–63; Simon Deakin, “Tort law and workmen’s compensation legislation: complementary or competing models?,” in Tort Law, ed. Arvind and Steele, 253–67.

132 On the Histadrut see Shaul A. Duke, The Stratifying Trade Union (Cham: Palgrave Macmillan, 2018), 56.

133 Compare Eric Stokes, The English Utilitarians and India (Oxford: OUP, 1959).

134 Similarly, see Assaf Likhovski, “Between ‘mandate’ and ‘state’: Re-thinking the periodization of Israeli legal history,” Journal of Israeli History 19 (1998): 39–68 (discussing progressive Mandate-era labor legislation).

135 Aharon Barak, Vicarious Liability in the Law of Torts (Jerusalem: Kiryath-Sefer, 1964), 4 (Hebrew).

136 Witt, Accidental Republic, 13–16.

137 See discussion in Englard, “Law of Torts,” 305–6.

138 Barak, “Codification,” 642.

139 E.g. CA 243/83 Jerusalem Municipality v. Gordon, 39(1) PD 113, 138–42 (Hebrew, duty of care for non-pecuniary loss).