Zionism, Palestinian Nationalism and the Law

1939-1948

Steven E. Zipperstein

• Editorial: Routledge
• Año: 2021
• ISBN:
  9781000484380
• Edición: 1
• Categoría: Politics & International Relations
• Categoría: Middle Eastern Politics

During the last decade of the British Mandate for Palestine (1939–1948), Arabs and Jews used the law as a resource to gain leverage against each other and to influence international opinion. The parties invoked "transformational legal framing" to portray the essentially political-religious conflict as a legal dispute involving claims of justice, injustice, and victimisation, and giving rise to legal/equitable remedies.

Employing this form of narrative and framing in multiple "trials" during the first 15 years of the Mandate, the parties continued the practice during the last and most crucial decade of the Mandate. The term "trial" provides an appropriate typology for understanding the adversarial proceedings during those years in which judges, lawyers, witnesses, cross-examination, and legal argumentation played a key role in the conflict. The four trials between 1939 and 1947 produced three different outcomes: the one-state solution in favour of the Palestinian Arabs, the no-state solution, and the two-state solution embodied in the United Nations November 1947 partition resolution, culminating in Israel's independence in May 1948.

This study analyses the role of the law during the last decade of the British Mandate for Palestine, making an essential contribution to the literature on lawfare, framing and narrative, and the Arab-Israeli Conflict.

PART I Theoretical framework

1 FRAMING THE ISRAELI-PALESTINIAN CONFLICT

DOI: 10.4324/9781003225263-2

Introduction

Studies of framing, narrative, and critical discourse theory have proliferated since Goffman (1974) published his seminal work on frame analysis nearly a half-century ago.¹ Few studies, however, have focused on the role of framing and narrative in the Israeli-Palestinian conflict. To the extent any such scholarship exists, it has focused mostly on the modern era and largely ignored the British Mandate period.

The present study and the author's prior study of the “Trials of Palestine” during the 1920s and 1930s demonstrate how framing and narrative – specifically, transformational legal framing, invoking tropes of “justice,” “injustice,” and “victimisation” – have played a key role in the conflict, not only in recent decades, but also ever since the inception of the conflict more than a century ago.²

Framing theory, therefore, provides a useful theoretical orientation for interrogating the role of legal discourse in the fundamentally political conflict between Palestinian Arab nationalism and Jewish nationalism during the British Mandate years – especially during the crucial decade between 1939 and 1948 – and in the conflict today.

As noted above and discussed further below, a new framing/reframing typology, transformational legal framing, is necessary to adapt framing theory to the Israeli-Palestinian conflict. “Transformational Legal Framing” describes how parties in the political and social arenas employ framing to convert inherently non-legal political movements and social causes into legal battles for and against justice and injustice. Movement and cause members are transformationally framed as victims of legal wrongdoing, entitling them to pursue legal remedies such as damages, reparations and criminal prosecution of alleged wrongdoers, and equitable remedies such as restitution, rescission, and restoration.

The discussion below begins with a review of the classically understood modalities and typologies of framing. It proceeds next to an examination of legal framing and master legal frames, including an examination of diagnostic legal framing, prognostic legal framing, and motivational legal framing. It then describes the justice/injustice subframes of diagnostic legal framing.

Finally, the new typology of transformational legal framing is proposed as the appropriate analytical framework for the Arab-Jewish conflict beginning during the British Mandate years and continuing to the modern Israeli-Palestinian conflict. The prevalence in the modern era of “lawfare,” and the intervention of both the International Court of Justice and the International Criminal Court in the conflict exemplify the success of transformational legal framing entrepreneurs, especially on the Palestinian Arab side.

Modalities and typologies of framing

Frame analysis and its intellectual companion, critical discourse theory, have produced a dynamic and robust outpouring of scholarship in the last 40 years. Nevertheless, the field has yet to coalesce into a single discipline. De Bruycker (2017), for example, described the fragmented nature of framing studies:

Framing is studied in different research disciplines, including communication studies, political science, psychology and sociology. There is no clear consensus across these disciplines on how framing should be studied. The fractured and diffuse nature of framing studies brings about some demanding and complex challenges for interest group scholars who engage in this type of research. Most importantly, researchers draw on different types of frames, analytical frameworks and methodological approaches which impedes cooperation and convergence between the different studies.³

Leachman (2013) has defined framing as “an expressive act that has symbolic ramifications for both internal and external movement audiences, which movement actors take into consideration as they formulate movement strategy.”⁴ Muller and Slominski (2019) more recently defined framing as a means for policy advocates, sometimes described as frame entrepreneurs, to “shape the debate surrounding a policy issue with the aim of influencing policy outcomes.”⁵

De Bruycker (2017) offers a more detailed typology of framing, including distinctions between “issue-specific” and “generic” frames, and “emphasis” versus “equivalence” frames:

Issue-specific frames are tied to the specific nature of the issue or conflict under scrutiny and emerge by looking from the bottom–up. Generic frames are not tied to a specific policy debate or issue, but can be identified across issues … Emphasis framing refers to emphasizing one aspect of an issue over others … [E]quivalence framing was developed in psychology research and involves presenting similar information in a different way.⁶

Gamson (1992) took a somewhat different approach, starting by describing what he called “interpretative frames.” In the context of social movements, interpretive frames can be characterised as “collective action frames,” with three components: an emotively defined injustice, an analysis of agency, and an identity component defining both the “we” of interested people and a “they” who hold opposing values.⁷

Carroll and Ratner (1996) have theorised how “whole cycles of protest might be organized in part around the construction of ‘master frames’ – schemata that integrate the specific agendas of diverse movements into central interpretive frameworks.”⁸ Gillan (2008) has stressed the importance of hermeneutic approaches to frame studies.⁹

Despite the multidisciplinary approach to frame studies, many (but not all) scholars have adopted Entman's (1993) oft-quoted definition of framing as selecting some aspects of a “perceived reality” and rendering them “more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.”¹⁰

De Bruycker (2017), however, disagrees with Entman's definitional emphasis on communication, choosing instead to focus on the key role of framing in defining policy debates:

[M]acro-level framing is seen as the collective definition process of what is at stake in a policy debate. Framing is then the process of how a policy debate is defined and understood. From this perspective frames are seen as the building blocks that construct a policy debate, rather than an emphasis in communication as in Entman's definition. A frame is then a perspective from which a policy problem can be made sense of and acted upon. Frames are identified by looking at the overall dominating aspects of a policy debate that are emphasized by institutions, advocacy coalitions and the news media. From this point of view framing is both a bottom–up process, where different sides of a policy debate promote their own frames, and a top–down process, which structures conflict and mobilization patterns … frames are seen as instruments of change or as strategic tools that interest groups rely on to obtain their political and policy goals.¹¹

Junk and Rasmussen (2019) explain the importance of framing in social and political movements, particularly emphasising how framing can impact policy definition and policy outcomes, as “frames have the ability to affect how policy makers grasp and process complex policy choices and, hence, work in favor of certain interests over others.”¹²

Legal framing

Despite the enormous focus on framing and critical discourse theory, scholars have paid scant attention to legal framing and narrative. Jacques Derrida (1992) began the inquiry with his famous examination of Kafka's parable “Before the Law:”

It seems that the law as such should never give rise to any story. To be invested with its categorical authority, the law must be without history, genesis or any possible derivation. That would be the law of the law. Pure morality has no history: as Kant seems first to remind us, no intrinsic history. And when one tells stories on this subject, they can concern only circumstances, events external to the law and, at best, the modes of its revelation.¹³

One year after Derrida's memorable exposition on Kafka, the critical legal theorist Robert Cover (1983) offered a framework for contextualising the role of legal narrative:

Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live. In this normative world, law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse – to be supplied with history and destiny, beginning and end, explanation and purpose … The codes that relate our normative system to our social constructions of reality and to our visions of what the world might be are narrative. The very imposition of a normative force upon a state of affairs, real or imagined, is the act of creating narrative … Narratives are models through which we experience and study transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms.¹⁴

Cover also noted how legal narrative frequently emerges against a backdrop of violence: “[T]he jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence.”¹⁵

Despite Cover's contribution, scholarly attention to law and framing has remained relatively sparse but has regained momentum in the recent past. Marshall (2003), for example, described the interplay between the everyday lives of “ordinary people” and the law as giving rise to “legal consciousness:”

To ordinary people, law is not simply the official texts of judicial opinions and legislative acts that embody formal legal rules, nor is it just the formal legal institutions of courts, lawyers and police. Instead, the law of everyday life – what Ewick and Silbey call “legality” – embraces “the meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends. In this rendering, people may invoke and enact legality in ways neither approved nor acknowledged by law.” Thus, individuals’ lives are not simply constrained by legality. In fact, in their choices and social practices, people also create their own sets of legal meanings. This interactive process between meaning and practice is legal consciousness.¹⁶

Leachman (2013) built on Marshall's work, noting “[l]egal concepts are words, labels or categories associated with the law, which people use to interpret everyday life. Through legal framing, social movement actors strategically link together these legal concepts (and nonlegal ones) to convince others to support their cause.”¹⁷

More recently, Muller and Slominski (2019) focused on law as a “master frame,”¹⁸ urging more focus on “the particularities of the legal discourse itself” and how “norms entrepreneurs develop legal arguments to achieve political objectives.”¹⁹ Muller and Slominski, thus, posit three variations of legal framing: diagnostic legal framing, prognostic legal framing, and motivational legal framing.²⁰

Diagnostic legal framing, according to Muller and Slominski, “communicates that a particular issue needs to be considered within the master frame of the law, as opposed to treating it primarily as a political, economic or moral issue.” Prognostic legal framing involves “suggesting specific remedies to the diagnosed legal problems.” Motivational legal framing “provides a ‘call to arms’ to generate mobilization” among policymakers.²¹

Muller and Slominksi applied their legal framing construct to public policy debates in the European Union, describing how “the interaction of legally savvy frame entrepreneurs with the law-thick world of EU politics has generated a distinct ‘legal’ discourse, which has gradually shaped political deliberations both within the EU and beyond.”²²

Muller and Slominski also cautioned that legal frame entrepreneurship requires certain attributes for success:

At the same time, we identify two scope conditions for effective legal framing. First, legal framing benefits from the ability of applying law to facts. This requires frame entrepreneurs that have intimate knowledge about procedures, sequences of decision-making, and policy matters that revolve around crucial legal issues. Second, we argue that legal claims by frame entrepreneurs that are in accordance with established legal meanings are more persuasive and more difficult to ignore than those which operate in areas of legal contestation or produce new legal arguments.²³

Justice/injustice frames

Scholars including Gamson (1992) and others have been focused on the role of justice/injustice in framing analysis but without nece...