The Mandate's Legacy
The Jewish population in the young State of Israel was generally highly hostile to the British Mandatory regime. Simply put, the British colonial rulers were seen as oppressors.[491] This unfavourable impression of the Mandate epoch found its way into Israeli case law, as justices had the occasion to reflect on the age preceding the establishment of the sovereign State of Israel or, indeed, on the auspicious event of its very foundation.[492]
With all their repugnance for the Mandatory rulers, Israeli (Jewish) jurists could not have denied the fact that upon independence - and for an extended period thereafter - the Israeli legal system was in many respects a direct extension of the Mandatory legal system.
Almost all sources of law that had been valid on the eve of the British parting of Palestine remained in place in the sovereign state.[493]At the same time, while the contribution of the Mandate to the Israeli legal system could not be denied, the degree to which the latter lived, for decades following independence, in the shadow of the former could be toned down. As a general matter, it seems that for a long while, Israeli judges and legal scholars were inclined to downplay the continuities between pre- and post-independence periods, arguing for a chasm lying between the colonial and the sovereign entities.[494]
The new literature pushes in the other direction. It is not the first to highlight continuities stretching from the Mandatory to the Israeli legal system, even in the area of human rights, which had traditionally been regarded as antithetical to the colonial-Mandatory legal framework.[495] Still, the new literature's espousal of the Mandate-Israel continuity thesis is surprising. After all, this thesis is mainly identified with critical legal historiography. The orthodoxy in this case too adulates the founding Israeli Court. Revealing how indebted embryonic Israeli law was to the Mandate seemed to detract, as it were, from the achievements of the Israeli founders.
It is thus interesting that a few chapters in the new literature argue for quite a strong version of the continuity thesis. The root of the argument is that both Mandatory and Israeli courts share the most fundamental, most basic feature: they were both run by human beings who, as all human beings - British or Israelis - were naturally driven by similar human sentiments and desires. To Brun, who epitomises this approach, the life of law is cast in the shape of the particular life of the particular law officer. On his approach, both in Palestine and Israel, judges ruled in accordance with their personal conviction. Before we proceed, it should be noted that one implication of this approach is self-evident: the new Court's jurisprudence and the Constitutional Revolution must be of its very own doing.
VI.