The Ottoman Legacy of Israeli Law

This is a very exciting event and I am extremely grateful for Michal Gur Arye of the Israeli consulate and for the faculty of law of Istanbul University for inviting me to participate in this seminar. The seminar is part of a series of events celebrating the connection of David Ben Gurion - Israel’s first prime minister - with Istanbul and the Istanbul University Faculty of Law. Ben Gurion was a student at Ottoman law school, from which this faculty originates, but he was not the only Israeli founding father who studied here. In the second decade of the 20th century, a number of young Jewish students from the Ottoman provinces of what later became Mandatory Palestine and Israel studied in the Ottoman Law School. Not just Ben Gurion, but also Moshe Sharett, who was Israel’s second prime minister and Izhak Ben-Zvi, who was Israel’s second president. The Ottoman Law School was thus an important training ground of some of the major figures of Israel’s political elite immediately after Israeli independence. This was not something exceptional. As legal historian Donald Reid has shown, graduates of the Ottoman Law School formed the core of the political elite not just in Israel but in many other post-Ottoman countries such as Syria and Iraq. Ben Gurion was a good student. In his two years of study here (1913-1914) he got excellent grades, and in his letters and memoirs, he proudly boasted about these grades, saying: “The maximum grade [one could get at an exam] was 10. On the first exam (international law) I received 9.5, on the second [exam] (civil law) I receive the maximum 10… the third exam was criminal law. Normally results are not made known the same day, but this time the professor told me with enthusiasm after the problems he had posed to me: ‘I have already awarded you a grade of 10’ and turning to the second student who had entered the exam with me, he said: ‘I am delighted and satisfied when I have the opportunity to give such as student a 10.’ Twelve students had been examined before me and all emerged from the exam angry and cursing that professor for being so exacting and pedantic.” Ben Gurion was proud of his achievements as a law student, but his familiarity with law led him later in life to treat lawyers and legal matters rather condescendingly. For example, in a debate in the new Israeli parliament in 1948, Ben-Gurion relied on his credentials as a former law student to dismiss liberal objections to a law which infringed civil rights saying: “The question is this: have we been made for the legal principle or has the legal principle been made for us? Every jurist knows how easy it is to weave juridical cobwebs to prove anything and refute anything. . . . [A]s a [former] law student, I know that no one can distort a text and invent farfetched assumptions and confusing interpretation like the lawyer...” The Ottoman roots of Israeli law were not limited to the educational background of some of the major founding fathers of Israel. Ottoman influence is still evident in the structure and substance of Israeli law today. A striking example of the continuing influence of the Ottoman legacy on Israeli law can be found in the fact that Israel retained the Ottoman Civil Code, the Mejelle, much longer than any other post-Ottoman country. While many parts of the Mejelle were replaced by Israeli legislation in the 1960s and 1970s, it was only in 1984, two decades ago, that the Israeli parliament finally repealed the Mejelle. Israel was thus the last post-Ottoman country to retain this code – which is based on Islamic law - long after countries like Turkey, Syria, Lebanon or Iraq repealed it. I am not sure that many of the advocates of the return to Shari’a law in Islamic countries today will appreciate the fact that Islamic law formed the backbone of Israel’s legal system until quite recently, but this is a fact that cannot be disputed. In my talk today I will try to do two things. First, I would like to provide an overview of the Ottoman legacy of Israeli law, and second I would like to address the question why did Israel retain parts of the Ottoman legal heritage longer than any other post-Ottoman country. This, I believe, is a fascinating question, which is relevant not just to Israeli lawyers and legal scholars but also to Turkish ones, because, as I hope you shall see, it reveals some universal dilemmas about the connection between law, religion and nationalism. I shall begin my talk with a brief survey of history of Israeli law, emphasizing its connection to its Ottoman predecessor. I shall then try to provide a number of explanations for the retention of parts of the Ottoman legacy in Israeli law today.