A REFLECTION ON THE VIEWS OF JULIUS
STONE AND THE APPLICABILITY OF
INTERNATIONAL LAW TO THE MIDDLE EAST
STONE AND THE APPLICABILITY OF
INTERNATIONAL LAW TO THE MIDDLE EAST
ANDREW DAHDAL*
Abstract
This paper explores the views of Professor Julius
Stone
on the principles of international law as he perceived
them to apply to theMiddle East . This paper is neither
an
indictment of Stone or his substantive views, nor a detailed
exploration of the situation in theMiddle East . It
is more
a meditation on the relationship between method and
motive. The conclusion reached in this paper challenges
the notion, at least when it comes to issues concerning
theMiddle East , that Stone was a
humanist; he was indeed
something much more profound, he was fallibly human.
Stone was a man endowed with the highest faculties of
human reason. Passion, however, remained as much a part
of him as it does the rest of mankind.
on the principles of international law as he perceived
them to apply to the
indictment of Stone or his substantive views, nor a detailed
exploration of the situation in the
a meditation on the relationship between method and
motive. The conclusion reached in this paper challenges
the notion, at least when it comes to issues concerning
the
something much more profound, he was fallibly human.
Stone was a man endowed with the highest faculties of
human reason. Passion, however, remained as much a part
of him as it does the rest of mankind.
I INTRODUCTION
In the last book published by Professor Stone in
1985, Precedent and
Law, the late Professor, when reflecting on the reasoning process
adopted by judges lamented that ‘the heart of judgment still holds
deep mysteries’.1 It is in the spirit of exploring such mysteries that this
study is presented.
Law, the late Professor, when reflecting on the reasoning process
adopted by judges lamented that ‘the heart of judgment still holds
deep mysteries’.1 It is in the spirit of exploring such mysteries that this
study is presented.
The technical correctness of Professor Stone’s application of
international law is an issue that can be fruitfully engaged with
international law is an issue that can be fruitfully engaged with
* Associate Lecturer, Division of Law, Macquarie University Sydney , Australia
A version of this paper was presented at the Julius Stone
Centenary Conference, 7 July 2007 ,
University of Sydney , Australia
1 Julius
Stone, Precedent and Law (1st ed, Sydney :
Butterworths, 1985) 105.
61
(2008) 10 UNDALR
independently.2 This, however, is not the purpose
of this present study. This study seeks to take a step back and reflect
upon the methodology and motivating forces driving Stone to take the
opinionated stands he adopted. With the exception of a few emotive
exhortations, such as portions of his pamphlet Stand Up and Be
Counted 3 addressed to Sir Isaac Isaacs, Stone’s approach to international
law in this context appears to be rigidly formal and dispassionate.
In testimony to the depth and scope of Stone’s
work, the approach
adopted in this paper to exploring the application of a formal legal
approach to international law utilizes Stone’s own renowned and original
work in the jurisprudence of law, logic and legal formalism.4 The thesis
long championed by Stone was that judges, while appearing to abide
by a declaratory theory of law in fact engage in a process of creating
law. Within the vast corpus of his jurisprudential work, Stone contended
that the appearance of formalism masked the pre-dispositions and latent
prejudices that nevertheless infiltrate judicial decision-making.5 This
insight may help explain how Stone himself approached issues of legality
upon the question of Palestine.
adopted in this paper to exploring the application of a formal legal
approach to international law utilizes Stone’s own renowned and original
work in the jurisprudence of law, logic and legal formalism.4 The thesis
long championed by Stone was that judges, while appearing to abide
by a declaratory theory of law in fact engage in a process of creating
law. Within the vast corpus of his jurisprudential work, Stone contended
that the appearance of formalism masked the pre-dispositions and latent
prejudices that nevertheless infiltrate judicial decision-making.5 This
insight may help explain how Stone himself approached issues of legality
upon the question of Palestine.
Authority comes from objectivity and as Stone
explained, sometimes the
‘is’ of objectivity is confused with the ‘ought’ of subjective prejudice, with
the highest sin being the presentation of subjective views in the top hat
and tailcoats of an objective assessment, even if done so unknowingly.6
In the view of Professor Stone, the common law judicial system and
its process of legal reasoning was guilty of this disingenuousness,7 yet
when appreciating Stone’s work on Palestine one cannot help but make
ostensibly similar observations.
‘is’ of objectivity is confused with the ‘ought’ of subjective prejudice, with
the highest sin being the presentation of subjective views in the top hat
and tailcoats of an objective assessment, even if done so unknowingly.6
In the view of Professor Stone, the common law judicial system and
its process of legal reasoning was guilty of this disingenuousness,7 yet
when appreciating Stone’s work on Palestine one cannot help but make
ostensibly similar observations.
The first portion of this paper attempts to establish that
the methodology
adopted by Professor Stone in applying international law to the Middle
East was rigidly formal and criticizes it on the basis of Stone’s own‘ lee-ways
adopted by Professor Stone in applying international law to the Middle
East was rigidly formal and criticizes it on the basis of Stone’s own‘ lee-ways
2 See Dr Ben Saul,
‘Apologist, Formalist of Jurist Par Excellence: Julius Stone and the Question of Palestine
in International Law’ (Paper presented at the Julius Stone Centenary
Conference, Sydney , Australia 7 July 2007 ).
3 Julius
Stone, Stand Up and Be Counted: An Open Letter to the Right Honorable Sir Isaac Isaacs (Sydney: Ponsford, Newman and Benson,
1944) 14.
4 See generally Stone,
above n 1. Precedent and Law represents the zenith of Stone’s work in this field and explores in detail the relationships
between law as a system of rules and the method of logical application.
5 Stone, above n 1,
58-59.
6 Stone, above n 1,
196-197.
7 Stone, above n 1,
158-159. Stone did not see judicial law-making as a bad thing.
In fact Stone supported the views of John Austin and Oliver
Wendell Holmes that this function needs to be acknowledged and can
actually be an effective means of implementing social controls through the
process of law-making.
62
A REFLECTION OF THE VIEWS OF JULIUS STONE
of choice’ arguments. The second and more
interesting component of
this paper asks simply - why? With such stated bias on the subject of
Israel and Palestine ,
why did Stone immunize his professional work on
the subject from such passions? Was it impeccable professionalism
or scholarly disingenuousness of the highest order? For a scholar
that preached of the justice and humanity required of law, the rigidity
and surgical precision of Stone’s application of international law and
doctrine to the Middle East leaves one with a feeling that certain
incongruence exists in the body of Stone’s work.
this paper asks simply - why? With such stated bias on the subject of
the subject from such passions? Was it impeccable professionalism
or scholarly disingenuousness of the highest order? For a scholar
that preached of the justice and humanity required of law, the rigidity
and surgical precision of Stone’s application of international law and
doctrine to the Middle East leaves one with a feeling that certain
incongruence exists in the body of Stone’s work.
The obvious target for critics of Stone’s work (and perhaps
more so his
views) on the Middle East would be that given his stated sympathies,
Stone proceeded from pre-determined conclusions and reverse-
engineered a line of reasoning to validate such prejudice. That is,
Stone was an advocate or apologist, not a scholar in this particular
context. The basis for this accusation rests on the premise that if Stone
had honestly looked at the context and human consequences of the
international legal order he argued should apply, he must have been
aware of the hardships that would arise to the incumbent population of
Palestine. Therefore the formal legal method embodying a rigid, detached
and impersonal application of doctrine would have, it may be argued,
insulated Stone from having to face the reality of popular displacement
inPalestine in furtherance of the
Zionist cause he championed. Or
perhaps even more damningly, Stone was aware of such consequences
and used the weight of ostensibly objective analysis to further this end
as the lesser of two evils in an attempt to aid world Jewry in the dark
period after the Holocaust. Along this line of criticism, scholarship thus
ceased to be an end in itself but a means to a greater end.
views) on the Middle East would be that given his stated sympathies,
Stone proceeded from pre-determined conclusions and reverse-
engineered a line of reasoning to validate such prejudice. That is,
Stone was an advocate or apologist, not a scholar in this particular
context. The basis for this accusation rests on the premise that if Stone
had honestly looked at the context and human consequences of the
international legal order he argued should apply, he must have been
aware of the hardships that would arise to the incumbent population of
Palestine. Therefore the formal legal method embodying a rigid, detached
and impersonal application of doctrine would have, it may be argued,
insulated Stone from having to face the reality of popular displacement
in
perhaps even more damningly, Stone was aware of such consequences
and used the weight of ostensibly objective analysis to further this end
as the lesser of two evils in an attempt to aid world Jewry in the dark
period after the Holocaust. Along this line of criticism, scholarship thus
ceased to be an end in itself but a means to a greater end.
Such criticisms, however,
lack the depth required to appreciate Professor
Stone’s work in this field. Admittedly, this paper was originally inspired
along the path of such criticism but its conclusions were ultimately drawn
more towards an endearing understanding rather than an undermining of
Julius Stone.
The opening quote from Victor Gollancz in Stone’s famous
pamphlet
Stand Up and Be Counted reads ‘ … before I am either an Englishman or
a Jew I am a man …’.8 It is this conclusion that is herein drawn. Above
being an Englishman or an Australian, a Jew or a Professor, Julius Stone
was a man. A man plagued by isolation, professionally and intellectually.
A man who, it is documented, faced personal experiences of anti-
Semitism, both within theSydney legal establishment and at
Stand Up and Be Counted reads ‘ … before I am either an Englishman or
a Jew I am a man …’.8 It is this conclusion that is herein drawn. Above
being an Englishman or an Australian, a Jew or a Professor, Julius Stone
was a man. A man plagued by isolation, professionally and intellectually.
A man who, it is documented, faced personal experiences of anti-
Semitism, both within the
8 Stone, above n 3, 1.
63
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Oxford.9 And a man who had an acute
sense of class-consciousness.10
For Stone, Israel represented something to belong to and something
‘just’.11 For a man who spent so much time searching for a basis upon
which to define the word ‘justice’,12 it was the ‘justice’ that he saw in
the establishment of Israel that blinded him to its consequences on the
civilization it displaced and the apparent limitations in this context of
a formal legal approach to such a subjective and contentious issue of
which Stone himself was so personally invested.
For Stone, Israel represented something to belong to and something
‘just’.11 For a man who spent so much time searching for a basis upon
which to define the word ‘justice’,12 it was the ‘justice’ that he saw in
the establishment of Israel that blinded him to its consequences on the
civilization it displaced and the apparent limitations in this context of
a formal legal approach to such a subjective and contentious issue of
which Stone himself was so personally invested.
II LEGAL FORMALISM
AND THE APPLICATION OF
INTERNATIONAL LAW
The traditional declaratory theory of law holds that once
given facts
are ascertained, the application of the law (which itself is known or
discoverable) provides a resolution to a dispute.13 The opposite of a
formal legal approach to solving problems is an approach where context,
actors and consequences are all factors considered in deriving a solution.
This latter approach does not lend itself to certainty or predictability,
both pre-requisite structural requirements for any legal system that is
to embody some elements of fairness or non-bias. As Professor Stone
argued, legal formalism could itself mask a latent exercise in power
(unknown perhaps even to he or she who exercises such power) rather
than provide for transparency and predictability.
are ascertained, the application of the law (which itself is known or
discoverable) provides a resolution to a dispute.13 The opposite of a
formal legal approach to solving problems is an approach where context,
actors and consequences are all factors considered in deriving a solution.
This latter approach does not lend itself to certainty or predictability,
both pre-requisite structural requirements for any legal system that is
to embody some elements of fairness or non-bias. As Professor Stone
argued, legal formalism could itself mask a latent exercise in power
(unknown perhaps even to he or she who exercises such power) rather
than provide for transparency and predictability.
This present study of Stone’s approach to international law
in the
context of theMiddle East is not critical of the formal
approach to
international law adopted by Professor Stone. It seeks rather to explore,
upon the same basis of the critique of legal formalism offered by Stone,
the approach of Julius Stone himself. Did the ostensibly formal approach
of Professor Stone mask any latent predispositions that influenced
context of the
international law adopted by Professor Stone. It seeks rather to explore,
upon the same basis of the critique of legal formalism offered by Stone,
the approach of Julius Stone himself. Did the ostensibly formal approach
of Professor Stone mask any latent predispositions that influenced
9 Leonie
Star, Julius Stone an Intellectual Life (1st ed, Sydney :
Sydney University Press, 1992) 3-4, 14, 43-4, 59-60, 62-3, 190, 245-6, 248.
10 See Jonathan Stone, ‘The Role of
Universities: Views of a Scholar of the Last Century’ (Paper presented at the Julius Stone Centenary Conference, Sydney ,
Australia 7 July 2007 ). Professor Jonathan
Stone is the son of Professor Julius Stone and spoke dearly of his father’s
working class origins in England .
11 See generally Stone, above n 3.
The language and substance of this pamphlet reflected the immediacy and intimacy Stone felt for the status of Israel .
The zeal with which Stone attacked Sir Isaac Isaacs was not and indeed, should not, be taken as a
personal rebuke of Sir Isaacs. See Godfrey Lee ‘The Battle
of the Scholars - The Debate between Sir Isaac Isaacs and Julius Stone over Zionism during the World War II’ (2008)
31(1) Australian Journal of Politics and
History 128-134 for a recent appraisal of the controversy.
12 See Julius Stone, Human Law
and Human Justice (1st ed, Sydney :
Maitland
Publications, 1968).
13 See John Smillie ‘Formalism,
Fairness and Efficiency: Civil Adjudication in New Zealand ’ (1996) 1 New
Zealand Law Review 254, 255-259.
64
A REFLECTION OF THE VIEWS OF JULIUS STONE
Stone’s scholarly positions on the
issues? Given the below explored
discrepancy in factual analysis reflected in Stone’s work, the only other
conclusion one may reach points to the intentional misrepresentation
of the underlying factual realties of the Middle East upon which
Stone applied the relevant legal principles of international law. Such
a conclusion must, however, be rejected for it accords not with the
integrity Julius Stone personified. The conclusion offered herein is that
Julius Stone, like the judges he himself studied, perhaps unknowingly
imbued his analysis with personal predilections when the process of
reasoning presented a ‘leeway of choice’.
discrepancy in factual analysis reflected in Stone’s work, the only other
conclusion one may reach points to the intentional misrepresentation
of the underlying factual realties of the Middle East upon which
Stone applied the relevant legal principles of international law. Such
a conclusion must, however, be rejected for it accords not with the
integrity Julius Stone personified. The conclusion offered herein is that
Julius Stone, like the judges he himself studied, perhaps unknowingly
imbued his analysis with personal predilections when the process of
reasoning presented a ‘leeway of choice’.
In his 1981 book Israel and Palestine: Assault on the Law
of Nations,14
Stone criticized numerous United Nations (‘UN’) publications.15 The
publications in question explored the plight (and in many cases endorsed
the rights) of displaced Palestinians.16 The treatment afforded by Stone
was intensely scholarly in criticizing the operations of the UN generally,
but also specifically as it operated in the mid-late 1970s against as he
perceived it Israeli interests.17 The fundamental premise Stone sought
to dislodge was that there was in existence historically, a distinct group
of people known as Palestinians, a concept integral to the international
legal precept of self-determination. The theme of a fictitious Palestinian
entity was treated in an earlier pamphlet published by Stone in 1970
entitled Self Determination and the Palestinian Arabs. ‘Palestinianizm’,
as Stone called it, had to be ‘examined as dispassionately as possible’.18
Stone criticized numerous United Nations (‘UN’) publications.15 The
publications in question explored the plight (and in many cases endorsed
the rights) of displaced Palestinians.16 The treatment afforded by Stone
was intensely scholarly in criticizing the operations of the UN generally,
but also specifically as it operated in the mid-late 1970s against as he
perceived it Israeli interests.17 The fundamental premise Stone sought
to dislodge was that there was in existence historically, a distinct group
of people known as Palestinians, a concept integral to the international
legal precept of self-determination. The theme of a fictitious Palestinian
entity was treated in an earlier pamphlet published by Stone in 1970
entitled Self Determination and the Palestinian Arabs. ‘Palestinianizm’,
as Stone called it, had to be ‘examined as dispassionately as possible’.18
There are several aspects within the corpus of Professor Stone’s
treatment of international law as it applied to the Middle East that
may be examined as a reflection of how Stone’s pre-dispositions may
have influenced his conclusions despite his adoption of a formalist
methodology in the name of objective transparency. For example the
legality of the 1967 or 1973 wars, the displacement of Jews from Arab
countries during the 1948 war and the status of Israeli settlements
treatment of international law as it applied to the Middle East that
may be examined as a reflection of how Stone’s pre-dispositions may
have influenced his conclusions despite his adoption of a formalist
methodology in the name of objective transparency. For example the
legality of the 1967 or 1973 wars, the displacement of Jews from Arab
countries during the 1948 war and the status of Israeli settlements
14 Julius Stone , Israel Palestine : Assault on the Law
of Nations (1st ed, Baltimore:
15 The Origins and Evolution of the Palestine
Problem (1978) (ST/SG/Ser F/1); The Right of Return of the Palestinian People (ST/SG/Ser
F/3, 1979); Thomas Mallison and Sally B Mallison, An International Law Analysis of the Major United
Nations Resolutions Concerning the Palestine Question, UN Doc ST/SG/Ser F/4)(1979).
16 Stone, above n 14, 5.
17 Stone, above n 14, 76-79.
18 Julius
Stone, Self-Determination and the Palestinian Arabs (1st ed, Sydney :
Bridge, 1970) 3. In this pamphlet, Stone argued that Arab
Palestinian nationhood or an Arab Palestinian entity was only born in the
late 1950s and only really took shape after the 1967 war. See also Stone, above
n 14, 69-75.
65
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under international law are all issues Stone addresses in
his writings.19
In exploring each issue closely certain analytical and methodological
patterns begin to emerge, particularly in the ascertainment of applicable
underlying facts in a given situation upon a given issue. The most
obvious of these patterns, however, is that all ascertained facts upon
which Professor Stone premised his conclusions supported the case of
Israel despite
there being quite clear evidence pointing in conflicting
directions.
In exploring each issue closely certain analytical and methodological
patterns begin to emerge, particularly in the ascertainment of applicable
underlying facts in a given situation upon a given issue. The most
obvious of these patterns, however, is that all ascertained facts upon
which Professor Stone premised his conclusions supported the case of
directions.
The approach of Professor Stone to the issue of
self-determination
for Jews and Arabs inPalestine
serves as an imperfect yet sufficient
illustration in exploring the way in which Stone’s passion forIsrael
may
have influenced his factual delineations when faced with leeways of
interpretation.
for Jews and Arabs in
illustration in exploring the way in which Stone’s passion for
have influenced his factual delineations when faced with leeways of
interpretation.
A Self-Determination
Self-determination has historically been a contentious issue
in international
law.20 As an accepted part of the international legal framework, self-
determination only began to take real shape in the post World War II era
of decolonisation.21 Given the British mandate up until the late 1940s in
Palestine, self-determination for Jews and Arabs could have indeed been
seen in the context of the overall decolonization movement. As a doctrine
of international law, self-determination is a nuanced principle requiring a
deep and textured understanding of the ethno-political realties underlying
its invocation and recognition. More so in the Middle East, given the history
of ever-amplifying divisions between Jews and Arabs inPalestine
over the
course of the twentieth century.
law.20 As an accepted part of the international legal framework, self-
determination only began to take real shape in the post World War II era
of decolonisation.21 Given the British mandate up until the late 1940s in
Palestine, self-determination for Jews and Arabs could have indeed been
seen in the context of the overall decolonization movement. As a doctrine
of international law, self-determination is a nuanced principle requiring a
deep and textured understanding of the ethno-political realties underlying
its invocation and recognition. More so in the Middle East, given the history
of ever-amplifying divisions between Jews and Arabs in
course of the twentieth century.
Despite the sensitivity required generally in the
application of the doctrine of self-determination, in dealing with
self-determination as a part of international law, Stone displayed an
unmistakably strict formalism. An extended extract
from Professor Stone’s Israel and Palestine is
warranted in highlighting this point:
[T]he facts relevant to a correct application of the
self-determination doctrine go
back to 1917 … It is clear that its application is predicated on certain findings
of fact. One of these is the finding that at the relevant time the claimant group
back to 1917 … It is clear that its application is predicated on certain findings
of fact. One of these is the finding that at the relevant time the claimant group
19 The merits of Stone’s
international law arguments upon these issues have been the focus of recent critical studies. See especially Saul, above
n 2.
20 Robert McCorquodale (ed), Self-determination in International Law (1st ed,
21 Wolfgang Danspeckgruber
(ed), The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World (1st ed, Boulder :
L. Rienner Publishers, 2002) 5. See generally also Antonio
Cassese, Self-Determination of Peoples: A
Legal Reappraisal (1st ed, Cambridge :
Cambridge University Press, 1995).
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A REFLECTION OF THE VIEWS OF JULIUS STONE
constitutes a people or a nation with a common endowment of
distinctive
language or ethnic origin or history and tradition, and the like, distinctive from
others among whom it lives, associated with a particular territory, and lacking an
independent territorial home which it may live according to its lights.22
language or ethnic origin or history and tradition, and the like, distinctive from
others among whom it lives, associated with a particular territory, and lacking an
independent territorial home which it may live according to its lights.22
Professor Stone identified the relevant period for the
application of the
legal test of self-determination as 1917. This in itself is a questionable
proposition as self-determination was still in its conceptual infancy.23
Nevertheless, this paper is more concerned with understanding
the legal approach of Professor Stone rather than the substance of
the arguments proffered. Upon the strict application of the self-
determination test, Stone concluded that the Arabs inPalestine
were
not entitled to self-determination whilst the Jewish population was
so entitled. This conclusion was based on the pre-requisite finding
of fact that the Arabs of Mandate Palestine (west of theJordan
legal test of self-determination as 1917. This in itself is a questionable
proposition as self-determination was still in its conceptual infancy.23
Nevertheless, this paper is more concerned with understanding
the legal approach of Professor Stone rather than the substance of
the arguments proffered. Upon the strict application of the self-
determination test, Stone concluded that the Arabs in
not entitled to self-determination whilst the Jewish population was
so entitled. This conclusion was based on the pre-requisite finding
of fact that the Arabs of Mandate Palestine (west of the
River) did not constitute a ‘nation’ or
‘peoples’ within the stated
definition.24 This essential determination of fact is not as objectively
conclusive as Stone presented it to be, making the applicability
of the self-determination doctrine by Stone a sufficient illustration in
exploring the basis upon which Stone’s formal analysis proceeded.25
definition.24 This essential determination of fact is not as objectively
conclusive as Stone presented it to be, making the applicability
of the self-determination doctrine by Stone a sufficient illustration in
exploring the basis upon which Stone’s formal analysis proceeded.25
The criteria set down by Stone as the basis for satisfying
the definition
22 Stone, above n 14, 10.
23 See Theodore Woolsey, ‘Self Determination’ (1919) 13 American Journal of International Law 302-305 extracted in Robert McCorquodale (ed), Self-
Determination in International Law (1st ed, Aldershot :
Ashgate/Dartmouth, 2000) 191-195.
24 Professor Stone uses the
expression ‘peoples or nation’. The present prevailing understanding of self-determination uses the expression ‘people’
although it is used as a term of art and continues to pose difficulties in
terms of its definition. See Martin Dixon, International Law (1st ed, London :
Blackstone Press Limited, 2000) 155. Dixon notes many may argue that
Palestinians may constitute one of the last remaining ‘peoples’ with a claim to self-determination in the classic sense.
For the purpose of this paper, Professor Stone’s language of ‘peoples or nation’ will
be the basis of analysis.
25 See Yehoshua Porath, The
Palestinian Arab National Movement Vol I 1918-1929(1st ed, London: Cass, 1974); Yehoshua
Porath, The Palestinian Arab National Movement Vol II 1929-1939 (1st ed, London: Cass,
1977); Muhammad Muslih, The Origins of Palestinian Nationalism (1st ed, New York: Columbia
University Press, 1988); Rashid Khalidi, Palestinian Identity (1st ed,
New York: Columbia University Press, 1997). Whilst Porath’s conclusions are not as sympathetic to the
Palestinian side in identifying a unique nationalism, they do, however, reveal a dynamic
Arab nationalist movement in Palestine
since at least the end of World War I of which Palestinian Arab national independence was a strand; a strand overlooked by
Stone.
The work of Muslih and later Khalidi are more conclusive on this point. They
confirm the existence of a distinct Palestinian nationalism originating even before the
First World War in various forms. Although Stone did not have the advantage of
reading these works as they were published after his death, many of the archival
sources drawn upon by Muslih and Khalidi were available to Stone (with the
important exception of some private sources accessed by the authors in Arabic).
67
(2008) 10 UNDALR
of a ‘nation’ or ‘peoples’ is easily satisfied with even the
most cursory observations of the characteristics of the Palestinian people
at the relevant time.26
The pivotal element in Stone’s derivation of a statement of
international
legality on the question of self-determination inPalestine
for Arabs and
Jews was the idea of a ‘peoples or nation’. As many noted political scholars
on nationalism have argued, concepts of nationhood and nationalism are
mere constructs, an idea reflected in the title of Khalidi’s work Palestinian
Identity: The Construction of Modern National Consciousness.27 As
quoted by Khalidi, political scientist Ernst Gellner even goes as far as to
posit that nations as a natural, god-given way of classifying men, as an inherent … political destiny, are a myth; nationalism, which sometimes takes pre-existing cultures and turns them into nations, sometimes invents them, and often obliterates preexisting cultures: that is reality.28
legality on the question of self-determination in
Jews was the idea of a ‘peoples or nation’. As many noted political scholars
on nationalism have argued, concepts of nationhood and nationalism are
mere constructs, an idea reflected in the title of Khalidi’s work Palestinian
Identity: The Construction of Modern National Consciousness.27 As
quoted by Khalidi, political scientist Ernst Gellner even goes as far as to
posit that nations as a natural, god-given way of classifying men, as an inherent … political destiny, are a myth; nationalism, which sometimes takes pre-existing cultures and turns them into nations, sometimes invents them, and often obliterates preexisting cultures: that is reality.28
Nationhood and nationalism understood as a construct and not
an
eternal feature of social nature thus renders this concept dangerously
imprecise and perhaps too tenuous to be regarded as ‘an objective
fact’ to be utilised in any purported formal legal analysis. The idea of
a ‘nation’ or ‘peoples’, however, is the basis upon which Stone derives
conclusions on the applicability of self-determination. This, it is argued,
eternal feature of social nature thus renders this concept dangerously
imprecise and perhaps too tenuous to be regarded as ‘an objective
fact’ to be utilised in any purported formal legal analysis. The idea of
a ‘nation’ or ‘peoples’, however, is the basis upon which Stone derives
conclusions on the applicability of self-determination. This, it is argued,
26 Anyone who speaks Arabic would
recognize the distinctive dialectic of a Palestinian as opposed to an Iraqi or an Egyptian, especially the Arabic
spoken by peasants ‘fel’ahin’ (which also incorporates a vast range of colorful and unique words and
expressions often tinged with a subtle and endearing sense of humor). Palestinian
cultural ceremonies and feasts also reflect a distinct and admittedly flavorsome
uniqueness.
Many Palestinian family names are also the names of geographical features
associated with a family’s land holdings in Palestine ,
or original place of origin in Palestine .
Palestinian art and pottery are also linked with theland
of Palestine Palestine ’s landscape. It is in fact even possible to tell which village a person is from
merely by looking at the patterns in their embroidery. Professor Stone’s attempt to
define and dismiss the Palestinians has deep origins in European scholarship. For the
leading treatment on European scholarly characterizations of the Arab Orient see
Edward Said, Orientalizm (2nd ed, New York :
Penguin Group, 1978).
Palestinian art and pottery are also linked with the
27 Rashid Khalidi, Palestinian
Identity (1st ed, New York :
Columbia University Press, 1997); See Eric Hobsbawm, Nations and
Nationalism Since 1780: Programme, Myth, Reality (1st ed, New York: Cambridge University Press,
1990); Ernest Gellner, Nations and Nationalism (1st ed, Oxford: Blackwell,
1983); Eric Hobsbawm and Terence Ranger (eds) The Invention of Tradition (1st ed,
Cambridge: Cambridge University Press, 1983); Benedict Anderson, Imagined
Communities: Reflections on the Rise and Spread of Nationalism (2nd ed, New York: Verso, 1991).
The construction
of an Arab Palestinian political national identity, much like the construction
of Israeli political identity (both ongoing processes), had strong political motivations
and cannot be termed mere organic social manifestations. A
national political identity, however, must be distinguished from a
national existence.
28 Khalidi, above n 25, xii.
68
A REFLECTION OF THE VIEWS OF JULIUS STONE
exposes Stone to the inadequacies of the process of logical
reasoning
underlying the formalist methodology especially when it is applied to a
dynamic social context. The terms ‘peoples or nation’, it is seen, provide
prime examples of what Stone would have characterized as a ‘leeway of
choice’ in terms of their definition. Classifying a group of individuals,
as a peoples or a nation may be just as subjective as, for example,
classifying certain conduct as ‘reasonable’ in avoiding personal injury.
underlying the formalist methodology especially when it is applied to a
dynamic social context. The terms ‘peoples or nation’, it is seen, provide
prime examples of what Stone would have characterized as a ‘leeway of
choice’ in terms of their definition. Classifying a group of individuals,
as a peoples or a nation may be just as subjective as, for example,
classifying certain conduct as ‘reasonable’ in avoiding personal injury.
III LEEWAYS
OF CHOICE
‘[T]he exercise in choice is the exercise in power and power
is better
exercised when he who wields it assumes responsibility for its
exercise’.
exercised when he who wields it assumes responsibility for its
exercise’.
Julius Stone, Precedent and Law (1980)151.
A Theory
In a crystallization of the sociological approach to the study of
jurisprudence instilled in Stone from his time at Harvard working
alongside Roscoe Pound, Stone published arguably his most important
work The Province and Function of Law.29 One of the consequences
of Stone’s association with Pound was an appreciation for the empirical
or scientific approach to the study of law. This focus on methodology
allowed Stone to attempt a penetration of the decision-making role of
the fundamental judicial actor in the common law system - the judge.
The insights Stone presented are profound and continue to shape the
study of law and jurisprudence inAustralia
and abroad.30
jurisprudence instilled in Stone from his time at Harvard working
alongside Roscoe Pound, Stone published arguably his most important
work The Province and Function of Law.29 One of the consequences
of Stone’s association with Pound was an appreciation for the empirical
or scientific approach to the study of law. This focus on methodology
allowed Stone to attempt a penetration of the decision-making role of
the fundamental judicial actor in the common law system - the judge.
The insights Stone presented are profound and continue to shape the
study of law and jurisprudence in
It is indeed beyond the scope of this paper to
comprehensively outline the theories devised by Professor Stone in
the Province and Function of Law. It remains, however, necessary to
draw on Stone’s work in this context, for it provides the
foremost framework for understanding the very conduct Stone, it is argued
here, is engaging in.
Martin Krygier summed up the core of Stone’s concerns
succinctly
29 Julius Stone, The Province
and Function of Law: Law as Logic, Justice and Social Control; A Study in Jurisprudence (1st ed, Sydney :
Associated General Publications,
1946).
30 See John Goldring ‘Julius Stone
and the Study of Law and Society in Australia ’
(1985)
2(2) Australian Journal of Law and Society 4. The
author of this paper undertook his legal education at Macquarie
University Law School Macquarie University Law
School
69
(2008) 10 UNDALR
when he noted ‘law comes in words and words contain, or can
be
found to contain, many meanings’.31 This realization meant that not
only was the declaratory theory of law not being realised, it was actually
impossible for it ever to be realised.32 The law, in its communicated form
of linguistic symbols, is unamenable to a process of deductive reasoning
in that those symbols (words) conveyed by judges as laws or legal tests
are but mere pointers towards a core mental notion held by the original
communicator or law giver, not an expression of that original core itself
in an unadulterated form. For Stone,
found to contain, many meanings’.31 This realization meant that not
only was the declaratory theory of law not being realised, it was actually
impossible for it ever to be realised.32 The law, in its communicated form
of linguistic symbols, is unamenable to a process of deductive reasoning
in that those symbols (words) conveyed by judges as laws or legal tests
are but mere pointers towards a core mental notion held by the original
communicator or law giver, not an expression of that original core itself
in an unadulterated form. For Stone,
the basic reason why language is plurisignative is that
words, being symbols,
have no meaning in themselves. Their meaning consists of the references in the
minds of persons between whom they are used as a means of communication on
the particular occasion. Among the effects of this is that words may have many
meanings which in turn may change through the stream of time in which they
are used.33
have no meaning in themselves. Their meaning consists of the references in the
minds of persons between whom they are used as a means of communication on
the particular occasion. Among the effects of this is that words may have many
meanings which in turn may change through the stream of time in which they
are used.33
According to classical logic, a conclusion may be derived
from a major
and minor premise and this same approach, it is held, can be applied
to legal analysis.34 However, where the definition of either the major
or minor premise is contested, Stone argued, the conclusion logically
derived cannot be said to have been derived objectively.35
and minor premise and this same approach, it is held, can be applied
to legal analysis.34 However, where the definition of either the major
or minor premise is contested, Stone argued, the conclusion logically
derived cannot be said to have been derived objectively.35
Many terms in the law have contested
meanings. These alternative
meanings, Stone argued, created ‘lee-ways of choice’ open to judges to
pursue when resolving a case. Some examples given by Stone of leeway-
producing terms include phrases such as ‘justifiable’, ‘reasonable’, ‘due
process’, ‘fair’, ‘equal protections’, ‘as a general rule’ etc.36 Stone argued
that these words lend themselves to more than one interpretation
and it is in furnishing these pivotal, and in many cases decisive and
determinative words with a definition, judges are not declaring and
applying the law but actually creating it and imbuing it with their own
beliefs.37
meanings, Stone argued, created ‘lee-ways of choice’ open to judges to
pursue when resolving a case. Some examples given by Stone of leeway-
producing terms include phrases such as ‘justifiable’, ‘reasonable’, ‘due
process’, ‘fair’, ‘equal protections’, ‘as a general rule’ etc.36 Stone argued
that these words lend themselves to more than one interpretation
and it is in furnishing these pivotal, and in many cases decisive and
determinative words with a definition, judges are not declaring and
applying the law but actually creating it and imbuing it with their own
beliefs.37
B ‘Lee-ways’ in the Concept of a
Peoples or Nation
Professor Stone identified the concept of a ‘peoples or
nation’ as
31 Martin Krygier ‘Julius Stone: Lee-ways
of Choice, Legal Tradition and the Declaratory Theory of Law’ (1986) 9 University
of New South Wales
32 Krygier, above n 31, 28.
33 Stone, above n 1, 51.
34 See Gerard Brennan, ‘The Limits on
the Use of Judges’ (1978) Federal Law Review 1, 3.
35 Stone, above n 1, 28-33, 97-108,
165-171, 223-225.
36 Stone, above n 1, 32.
37 Julius Stone, Legal System
and Lawyers’ Reasonings (1st ed, Sydney :
Maitland Publications, 1968) 304. Stone argued that the growth of the
common law is proof that judges make (and not merely declare) law in
accordance with his thesis.
70
A REFLECTION OF THE VIEWS OF JULIUS STONE
the minor premise of the dispute pertaining to the question
of self-
determination for the Arabs of Palestine.38 The concept of a ‘people’ in
the corpus of international law remains unsettled to this day and indeed
open to lee-ways of interpretation of the kind described by Professor
Stone.39 In examining whether the indigenous Arabs in Palestine were
a peoples or nation for the purpose of international law, Professor
Stone relies on a number of arguments. The most prominent of these
arguments is that Arab Palestinians were never a distinctive people or
nation in themselves but part of the larger Arab peoples or nation.40
Related approaches adopted by Professor Stone asserted that any
Palestinian Arab identity was realized with the creation of the present
day state of Jordan; furthermore the lack of a recognizable political
apparatus representing the Arab Palestinians in the 1920s and 1930s
proves that the Arab Palestinians were not a distinct peoples or nation
as required to be understood in international law for the doctrine of
self-determination to apply at the relevant time.
determination for the Arabs of Palestine.38 The concept of a ‘people’ in
the corpus of international law remains unsettled to this day and indeed
open to lee-ways of interpretation of the kind described by Professor
Stone.39 In examining whether the indigenous Arabs in Palestine were
a peoples or nation for the purpose of international law, Professor
Stone relies on a number of arguments. The most prominent of these
arguments is that Arab Palestinians were never a distinctive people or
nation in themselves but part of the larger Arab peoples or nation.40
Related approaches adopted by Professor Stone asserted that any
Palestinian Arab identity was realized with the creation of the present
day state of Jordan; furthermore the lack of a recognizable political
apparatus representing the Arab Palestinians in the 1920s and 1930s
proves that the Arab Palestinians were not a distinct peoples or nation
as required to be understood in international law for the doctrine of
self-determination to apply at the relevant time.
Whilst Palestinians possessed all the unique cultural aspects of
nationhood (as defined by Stone in Part II A above), it is true they were
woefully behind the Zionists in their political organization post World
War I. Apart from Palestinian politics being dominated by a few wealthy
Jerusalem families, for centuries the Arab population in Palestine was
essentially a peasant population, a ‘society without politics’ as described
by Israeli historian Ilan Pappe in his A History of Modern Palestine.41
This lack of a strong single representative political voice expressing the
views of a population who was undoubtedly physically present seems to
convince Stone,42 that for the purpose of international law, the Arabs in
Palestine were not a distinct peoples or nation. This may be illustrated,
or at least implied, by Stone’s designation of 1966 as the correct moment
when a distinctly Palestinian self-recognition emerged; 1966 being the
year when the Palestinians adopted a National Covenant as a political
nationhood (as defined by Stone in Part II A above), it is true they were
woefully behind the Zionists in their political organization post World
War I. Apart from Palestinian politics being dominated by a few wealthy
Jerusalem families, for centuries the Arab population in Palestine was
essentially a peasant population, a ‘society without politics’ as described
by Israeli historian Ilan Pappe in his A History of Modern Palestine.41
This lack of a strong single representative political voice expressing the
views of a population who was undoubtedly physically present seems to
convince Stone,42 that for the purpose of international law, the Arabs in
Palestine were not a distinct peoples or nation. This may be illustrated,
or at least implied, by Stone’s designation of 1966 as the correct moment
when a distinctly Palestinian self-recognition emerged; 1966 being the
year when the Palestinians adopted a National Covenant as a political
38 Stone, above n 14, 9-22.
39 See generally Gellner, above n 27,
6-7.
40 Stone, above n 18, 4-6.
41 Ilan Pappe, A History of
Modern Palestine: One Land York : Cambridge
University
42 Even the physical presence of the
Arab Palestinians in Palestine has
historically been denied by some Zionist revisionist scholarship that adopted
the idea that Palestine was ‘a land without a people for a people without a land’. This discredited
perspective continues to feature in Zionist accounts of the history of Palestine, even
among notable Israel advocates such as Harvard Law Professor Alan Dershowitz in his
book The Case for Israel (1st ed, Hoboken, NJ: Wiley, 2004)
22-25; Cf John Rose, The Myths of Zionism (1st ed, London: Pluto Press, 2004)
80-117: Rose comprehensively examines and dismisses this Zionist claim as a politically motivated myth.
71
(2008) 10 UNDALR
platform.43 The Palestinians thus fell into the
trap countless indigenous
cultures have experienced, that is, their existence in the forum of
international politics was non-existent because they were not individual
participants in its operations. Stone exploited this cruel reality of the
late colonial international order by adopting its tenets in confirming the
claims ofIsrael
in international law. In doing so, Stone was justifying the
dereliction of the Arab Palestinians from the international process, as
they displayed no united political front.44 On this point it can be seen,
Professor Stone accepted that this was what the legal order provided.
Stone asserted what the law ‘is’ and did not engage with whether this is
what the legal order ‘ought’ to be or provide.45
cultures have experienced, that is, their existence in the forum of
international politics was non-existent because they were not individual
participants in its operations. Stone exploited this cruel reality of the
late colonial international order by adopting its tenets in confirming the
claims of
dereliction of the Arab Palestinians from the international process, as
they displayed no united political front.44 On this point it can be seen,
Professor Stone accepted that this was what the legal order provided.
Stone asserted what the law ‘is’ and did not engage with whether this is
what the legal order ‘ought’ to be or provide.45
The more dominant of Stone’s arguments in addressing the
idea of
peoplehood or nationhood in this context does not rest on the denial
of a Arab Palestinian peoples or nation in toto at the relevant time, but
rather Stone asserts that the Arabs in Palestine were part of the greater
Arab-nation.46 As such, Stone argued that ‘the essential point is not
whether self-determination was a legal right in 1919, but rather that,
whatever it was, it was duly applied in parallel to the claims of the
Jewish people and the Arab people in the Middle East’.47
peoplehood or nationhood in this context does not rest on the denial
of a Arab Palestinian peoples or nation in toto at the relevant time, but
rather Stone asserts that the Arabs in Palestine were part of the greater
Arab-nation.46 As such, Stone argued that ‘the essential point is not
whether self-determination was a legal right in 1919, but rather that,
whatever it was, it was duly applied in parallel to the claims of the
Jewish people and the Arab people in the Middle East’.47
According to Stone, the colonial carve up of the Middle East
after
the First World War gave expression to competing claims for self-
determination with the undifferentiated Arab nation obtaining the
the First World War gave expression to competing claims for self-
determination with the undifferentiated Arab nation obtaining the
43 Stone, above n 14, 18.
44 Cf Porath (1977), above n 25,
20-39, 162-166. Porath notes that there was in existence a body known as the Arab Executive (‘AE’) that purported to
represent Arab interests in Palestine .
However, the AE was relatively weak and plagued by family rivalries.
In 1936 the Higher Arab Committee (‘HAC’) was established, but this too
was no match for the advanced stages of organization within the Zionist camp.
45 See generally, Stone, above n 14.
Admittedly, Stone did concede that when one deals with international law one is not dealing with the
rights of humans but rather the rights of states. See Julius Stone, Social Dimensions of Law and
Justice (1st ed, Sydney : Maitland Publications,
1966) 174. This precept was not questioned by Stone in this context and indeed was a central basis for denying any Palestinian
claims to land or self-determination.
46 See Muslih, above n 25, 211-224.
Muslih’s conclusions acknowledge the Pan-Arab nationalism being advocated by Palestinian notables and
elites in the interwar years. Muslih, however, argues that the reason it
did not succeed in gaining widespread acceptance among Palestinians was
the plain fact that Arab Palestinians were different from other Arabs and
had different and localized concerns, one of which was of course the
growth in Zionist immigration. A distinct Palestinian nationalism also
prevented Pan-Arab nationalism gaining a decisive foothold in Palestine .
47 Stone, above n 14, 16. Professor
Stone did not appreciate that a Palestinian being referred to as only an Arab, even before 1948, is as
objectionable a proposition as a Scot, Welshmen or Englishman being classed as
only a British subject and not a member of their own particular national
group.
72
A REFLECTION OF THE VIEWS OF JULIUS STONE
majority of the land distributed by the
victorious Entente powers, and the equally
valid Jewish claims receiving a minority of the land.48
A related interpretation of the status of the indigenous
Arab Palestinians
offered by Stone as applicable under international law is that the
present state of Jordan is properly the expression of an Arab Palestinian
nationality - if it exists at all.49 The principles of international law are
thus, in this context, also fulfilled as Arab Palestinians can exercise self-
determination in Jordan. It is true that Palestinian and Jordanian Arabs
share a special kinship, yet no Palestinian would voluntarily forsake his/
her ancestral home for Jordan just as a Jordanian would not leave his/her
familial homeland to dwell west of the Jordan River. This reality, Stone
did not acknowledge. It is also true that political statements have
historically been made by prominent figures referring to the idea
that Palestine and Jordan are one and the same, and Stone of course
pounces on these proclamations.50 But what Professor Stone again
fails to acknowledge is that in order to understand these statements
of pacification, one is required to appreciate the historically volatile
political situation within Jordan between indigenous Jordanians and
the Arab Palestinians. Enough blood has unfortunately been shed to
underscore this point.51 The trip betweenJerusalem
and Amman may
be physically shorter than that between Melbourne and Sydney, but
in many ways it is much further, as distinct and recognizable cultural
borders must be crossed.
offered by Stone as applicable under international law is that the
present state of Jordan is properly the expression of an Arab Palestinian
nationality - if it exists at all.49 The principles of international law are
thus, in this context, also fulfilled as Arab Palestinians can exercise self-
determination in Jordan. It is true that Palestinian and Jordanian Arabs
share a special kinship, yet no Palestinian would voluntarily forsake his/
her ancestral home for Jordan just as a Jordanian would not leave his/her
familial homeland to dwell west of the Jordan River. This reality, Stone
did not acknowledge. It is also true that political statements have
historically been made by prominent figures referring to the idea
that Palestine and Jordan are one and the same, and Stone of course
pounces on these proclamations.50 But what Professor Stone again
fails to acknowledge is that in order to understand these statements
of pacification, one is required to appreciate the historically volatile
political situation within Jordan between indigenous Jordanians and
the Arab Palestinians. Enough blood has unfortunately been shed to
underscore this point.51 The trip between
be physically shorter than that between Melbourne and Sydney, but
in many ways it is much further, as distinct and recognizable cultural
borders must be crossed.
A final formulation suggested by Professor Stone in
interpreting whether
Arab Palestinians constitute a ‘peoples or nation’ under international
law is that many Arabs in Palestine showed more allegiance and identity
with their specific regions (such as Haifa, Tulkuram, Jerusalem, Nablus
or Jericho) rather than with a common Palestinian entity.52
Arab Palestinians constitute a ‘peoples or nation’ under international
law is that many Arabs in Palestine showed more allegiance and identity
with their specific regions (such as Haifa, Tulkuram, Jerusalem, Nablus
or Jericho) rather than with a common Palestinian entity.52
Irrespective of which one of the various arguments offered
by Professor
Stone one accepts, the conclusion is always the same. The term ‘peoples
or nation’ did not apply to the Arabs of Palestine in a way that would
allow the doctrine of self-determination to arise in their favor at the
Stone one accepts, the conclusion is always the same. The term ‘peoples
or nation’ did not apply to the Arabs of Palestine in a way that would
allow the doctrine of self-determination to arise in their favor at the
48 Stone, above n 18, 4-6.
49 Stone, above n 14, 22-25.
50 Stone, above n 18, 9.
51 See generally Joseph
Massad, Colonial Effects: The Making of National Identity in Jordan (1st ed,
New York : Columbia University
Press, 2001). See generally also Christopher Dobson, Black September:
Its Short, Violent History (1st ed, New York : Macmillan,
1974).
52 Stone, above n 18, 9.
73
(2008) 10 UNDALR
relevant time in question. A proper, or even ‘correct’,53 application
of
the international normative framework would thus require the
given facts (the minor premise) to be applied to the settled law
(the major premise) in deriving an objective conclusion. Based on
Stone’s approach, the facts are as follows, two peoples or nations
sought self-determination after World War I, a Jewish national group
represented by the Zionist movement and a Pan-Arab national
group. The Arabs in Palestine were either part of the Pan-Arab
nation, or alternatively reflected their own regional identity. With
respect to the applicable precepts of international law, the doctrine
of self-determination required that groups who satisfy the criteria of a
‘peoples or nation’ are entitled to independence and self-rule.54 Given
the major and minor premises stated, the dispassionate formal application
of international law to the given facts thus results in a justifiable denial
of self-determination west of the Jordan River for the indigenous Arab
Palestinians and the alternative recognition of self-determination for
the Zionists upon this same land. The available conclusions are either
the Arab Palestinians were given self-determination in the other Arab
states constructed, or were not entitled to self-determination at all given
their disparate status. All conclusions however, provide no recourse in
international law to the expulsion of local inhabitants from the land
they had cultivated and occupied for generations.
the international normative framework would thus require the
given facts (the minor premise) to be applied to the settled law
(the major premise) in deriving an objective conclusion. Based on
Stone’s approach, the facts are as follows, two peoples or nations
sought self-determination after World War I, a Jewish national group
represented by the Zionist movement and a Pan-Arab national
group. The Arabs in Palestine were either part of the Pan-Arab
nation, or alternatively reflected their own regional identity. With
respect to the applicable precepts of international law, the doctrine
of self-determination required that groups who satisfy the criteria of a
‘peoples or nation’ are entitled to independence and self-rule.54 Given
the major and minor premises stated, the dispassionate formal application
of international law to the given facts thus results in a justifiable denial
of self-determination west of the Jordan River for the indigenous Arab
Palestinians and the alternative recognition of self-determination for
the Zionists upon this same land. The available conclusions are either
the Arab Palestinians were given self-determination in the other Arab
states constructed, or were not entitled to self-determination at all given
their disparate status. All conclusions however, provide no recourse in
international law to the expulsion of local inhabitants from the land
they had cultivated and occupied for generations.
One of the fundamental points Professor Stone strived to
convey in a
lifetime of work in jurisprudence was that, a social system, such as a
legal system, which is devoid of acknowledging the human element, is
undesirable because it marginalizes the weakest and most vulnerable
in society. It hurts those who are unable to partake in the system
directly by excluding their considerations. This is despite it often being
claimed that the system actually operates to the benefit of the weak by
controlling powerful players through the imposition of set rules and
standards.55
lifetime of work in jurisprudence was that, a social system, such as a
legal system, which is devoid of acknowledging the human element, is
undesirable because it marginalizes the weakest and most vulnerable
in society. It hurts those who are unable to partake in the system
directly by excluding their considerations. This is despite it often being
claimed that the system actually operates to the benefit of the weak by
controlling powerful players through the imposition of set rules and
standards.55
53 Stone, above n 1, 22. Stone was
uncomfortable with phrases such as ‘good law’ or ‘correct law’ as he perceived such expressions to confuse
an assessment of the soundness of the logical derivation of the conclusion
with a substantive moral assessment of the legal consequence of the
conclusion.
54 Although self-determination did
not officially become part of international law until the late 1950s in conjunction with the push towards decolonization,
the notion was first born around President Woodrow Wilson’s fourteen point plan of 1918. In
the context of Palestine, the King-Crane Commission, dispatched in 1919 to the
former Ottoman provinces in order to inform the direction of US policies at the
Versailles Conference noted that the prospects for self-determination of the existing
non-Jewish inhabitants of Palestine would be compromised if a Jewish state was to be
realized in Palestine.
55 See Stone, above n 45, 589-609.
74
A REFLECTION OF THE VIEWS OF JULIUS STONE
In this instance it was the Arab population of Palestine
who were the
most vulnerable to this system of international law that was, according
to Stone’s analysis, legitimating their dispossession. If the true voice of
the Palestinians was to be heard, one had to listen to the discontent
reflected in the great peasant revolt of 1936-39. Much like the popular
uprising of the late 1980s, the revolt spoke of the unwillingness of
the Palestinian peasant to be subjugated and to give up his/her home
without a struggle. The frustration expressed by the peasants was
directed not only against the seriously damaging effects of British and
Zionist policies, but also against uninterested Arab absentee landlords
and a distant Arab leadership. This voice, according to Professor Stone,
did not require hearing in the forum of international law at the relevant
time upon a strictly formal approach to international law.
most vulnerable to this system of international law that was, according
to Stone’s analysis, legitimating their dispossession. If the true voice of
the Palestinians was to be heard, one had to listen to the discontent
reflected in the great peasant revolt of 1936-39. Much like the popular
uprising of the late 1980s, the revolt spoke of the unwillingness of
the Palestinian peasant to be subjugated and to give up his/her home
without a struggle. The frustration expressed by the peasants was
directed not only against the seriously damaging effects of British and
Zionist policies, but also against uninterested Arab absentee landlords
and a distant Arab leadership. This voice, according to Professor Stone,
did not require hearing in the forum of international law at the relevant
time upon a strictly formal approach to international law.
Why then did a scholar who endlessly warned of the potential
dangers
of legal formalism reflect all the characteristics (good and bad) of this
jurisprudential approach to his own interpretation of international law
when addressing the situation in theMiddle East ? Why
did Professor
Stone not reflect on the consequences of the declaratory legal method
in this context? Professor Stone did not only know the dangers and
consequences, he is the one who brought them to the attention of the
common law world.
of legal formalism reflect all the characteristics (good and bad) of this
jurisprudential approach to his own interpretation of international law
when addressing the situation in the
Stone not reflect on the consequences of the declaratory legal method
in this context? Professor Stone did not only know the dangers and
consequences, he is the one who brought them to the attention of the
common law world.
IV ‘JUSTICE’ AND FORMALISM
A Justice in the Face of Jewish
Suffering
A major philosophical preoccupation that transcended the
boundaries
of all of Stone’s chosen fields was the ever-present ideal of ‘justice’.
Professor Julius Stone truly believed Zionism and the cause of Jewish
nationalism as ‘just’. This notion of justice colored all of Stone’s work
on issues pertaining to theMiddle East . The
applicability of the doctrine
of self-determination, for example, was built upon the unwavering
belief that it was ‘just’ for Jews to have a homeland in Palestine given
their suffering in World War II. As noted by the Honorable Justice
Michael Kirby,
of all of Stone’s chosen fields was the ever-present ideal of ‘justice’.
Professor Julius Stone truly believed Zionism and the cause of Jewish
nationalism as ‘just’. This notion of justice colored all of Stone’s work
on issues pertaining to the
of self-determination, for example, was built upon the unwavering
belief that it was ‘just’ for Jews to have a homeland in Palestine given
their suffering in World War II. As noted by the Honorable Justice
Michael Kirby,
the most that Stone taught was that judges should be honest
and transparent in their exposure of the considerations of legal policy
and principle, as well as the legal authorities, that influence their
decisions.56
Stone’s application of international law to the question of Palestine ,
however, was largely presented in a formal and dispassionate manner.
however, was largely presented in a formal and dispassionate manner.
56 Michael Kirby, ‘HLA Hart, Julius
Stone and the Struggle for the Soul of Law’ (2005) 27
Sydney Law Review 323, 334.
75
(2008) 10 UNDALR
Anyone unacquainted with Stone or the issues in dispute in
the Middle
East, upon being exposed to Stone’s work, would be presented with
seemingly objective, precise and conclusive resolutions to the most
intractably difficult political issues in the world today. Stone did
express passion for Zionism andIsrael ,
but the tone and tenor of his
legal arguments were strictly devoid of emotionalism or any disclosure
of predilections.57
East, upon being exposed to Stone’s work, would be presented with
seemingly objective, precise and conclusive resolutions to the most
intractably difficult political issues in the world today. Stone did
express passion for Zionism and
legal arguments were strictly devoid of emotionalism or any disclosure
of predilections.57
In his tributary oration to the memory and legacy of
Professor Stone,
former New South Wales Governor and Supreme Court Justice, Gordon
Samuels talked of Stone’s passionate support forIsrael .
Samuels
commented on Stone’s deployment of ‘the compelling power of
objective argument sharpened but not distorted by the impulses of his
own heart’.58 Stone’s passion for the Jewish cause was well known and
the late Professor was unapologetic about the fierceness of his views. As
Kirby J recently recalled,
former New South Wales Governor and Supreme Court Justice, Gordon
Samuels talked of Stone’s passionate support for
commented on Stone’s deployment of ‘the compelling power of
objective argument sharpened but not distorted by the impulses of his
own heart’.58 Stone’s passion for the Jewish cause was well known and
the late Professor was unapologetic about the fierceness of his views. As
Kirby J recently recalled,
the closest that Stone came to a passion of the heart, was
his fiery loyalty to the state of Israel .
For Stone, this was a cause touching his emotions.59
Justice Kirby, who was a former student of
Professor Stone, also recalled
that the intensity of Stone’s convictions even led some colleagues to
‘express fear even to discuss Israel with him’.60 The precision and power
of Stone’s intellect was directed towards the realization of ‘justice’ as he
perceived it. Yet, as per the famous proverb, ‘justice is blind’, it must
also be acknowledged that for those that seek to pursue its promise,
justice may also be blinding.
that the intensity of Stone’s convictions even led some colleagues to
‘express fear even to discuss Israel with him’.60 The precision and power
of Stone’s intellect was directed towards the realization of ‘justice’ as he
perceived it. Yet, as per the famous proverb, ‘justice is blind’, it must
also be acknowledged that for those that seek to pursue its promise,
justice may also be blinding.
It is argued here that the hope Professor Stone placed in
Zionism as a
salvation for the Jewish people was especially acute in his particular case
owing to personal and professional circumstances. It is neither suggested
nor even implied that Stone held any antipathy towards any particular
ethnic group. In fact the opposite is the more compelling understanding,
given Stone’s outspoken stance on apartheid in South Africa and his
general concern with a concept of ‘human justice’ in the context of
international law and domestic affairs.61 As such, the question duly posited
salvation for the Jewish people was especially acute in his particular case
owing to personal and professional circumstances. It is neither suggested
nor even implied that Stone held any antipathy towards any particular
ethnic group. In fact the opposite is the more compelling understanding,
given Stone’s outspoken stance on apartheid in South Africa and his
general concern with a concept of ‘human justice’ in the context of
international law and domestic affairs.61 As such, the question duly posited
57 Any of Stone’s work on the issues
related to the Middle East will testify to this assertion.
58 Gordon Samuels, ‘Julius Stone’
(1985) 9 University of New
South Wales
59 Kirby, above n 56, 332.
60 Kirby, above n 56, 332
61 See J S Moyes ,
Morris West and Julius Stone in Charles Stokes (ed), White Australia?:
Time for Change (1st ed, Sydney :
Anglican Press, 1963). Even in this informal gathering of immigration
reform advocates, Stone was at pains to avoid ‘emotionalism’ (at 22) and
ensure that the outcome of the immigration debate on the ‘White Australia
Policy’ is decided by the light of reason, not by racial prejudice.
76
A REFLECTION OF THE VIEWS OF JULIUS STONE
in the context of Stone’s approach to matters dealing with
the Middle East is whether the heart led the mind
or the mind merely confirmed the feelings of the heart.
The answer suggested herein contemplates Stone’s personal
experiences
of alienation and anti-Semitism inSydney
as well as at Oxford . This
relegation to the status of an ‘outsider’ expressed itself in many ways. As
described by Dr Leonie Star in her outstanding biography of Professor
Stone, at the time of Stone’s appointment at Sydney University, the legal
profession exerted tremendous influence over the teaching of law.62
Law graduates from Sydney University were given a doctrinal education
in preparation for either the Sydney or London Bar. Julius Stone’s
sociological approach to law was somewhat ‘out of place’ in thePhillip
Street Law School
Sydney legal
establishment. Part of the resistance may also have
arisen
from a misunderstanding of what Stone’s methods and perspectives
upon the law actually entailed. As former Prime Minister Bob Hawke
conveyed of Stone’s views of the original pressure exerted against his
appointment to the Sydney Law Faculty, Stone thought that many of
his critics ‘in good faith mistook ‘sociology’ for ‘socialism’’.63 Both his
approach to the law and his Jewish heritage marked Stone out from the
professional and academic legal mainstream in Sydney.64
of alienation and anti-Semitism in
relegation to the status of an ‘outsider’ expressed itself in many ways. As
described by Dr Leonie Star in her outstanding biography of Professor
Stone, at the time of Stone’s appointment at Sydney University, the legal
profession exerted tremendous influence over the teaching of law.62
Law graduates from Sydney University were given a doctrinal education
in preparation for either the Sydney or London Bar. Julius Stone’s
sociological approach to law was somewhat ‘out of place’ in the
from a misunderstanding of what Stone’s methods and perspectives
upon the law actually entailed. As former Prime Minister Bob Hawke
conveyed of Stone’s views of the original pressure exerted against his
appointment to the Sydney Law Faculty, Stone thought that many of
his critics ‘in good faith mistook ‘sociology’ for ‘socialism’’.63 Both his
approach to the law and his Jewish heritage marked Stone out from the
professional and academic legal mainstream in Sydney.64
Given such ostracism, Stone perhaps felt a sense of
belonging inspired
by his Jewish identity and in the cause ofIsrael .
For someone in Julius
Stone’s station in lifeIsrael
may have stood for more than merely a
party to an international dispute. The conjectures herein made of the
intimacy Stone felt of these issues and the psychological elements
driving Professor Stone are partly based upon the discontent and
disappointment Stone reflected and expressed towards former High
Court Justice and Governor-General of Australia, Sir Isaac Isaacs.65 Israel,
as a cause, not only perhaps abated the isolation Stone felt, but may have
also touched on Stone’s acute awareness of his lower-class origins in
Leeds. In his personal rebuke of Sir Isaacs, for example, Stone, on several
occasions, emphasized the lack of support for Israel demonstrated by Sir
Isaacs and other ‘Jews with a happy lot’.66 What was always the more
dominant influence on the views adopted by Professor Stone, however,
by his Jewish identity and in the cause of
Stone’s station in life
party to an international dispute. The conjectures herein made of the
intimacy Stone felt of these issues and the psychological elements
driving Professor Stone are partly based upon the discontent and
disappointment Stone reflected and expressed towards former High
Court Justice and Governor-General of Australia, Sir Isaac Isaacs.65 Israel,
as a cause, not only perhaps abated the isolation Stone felt, but may have
also touched on Stone’s acute awareness of his lower-class origins in
Leeds. In his personal rebuke of Sir Isaacs, for example, Stone, on several
occasions, emphasized the lack of support for Israel demonstrated by Sir
Isaacs and other ‘Jews with a happy lot’.66 What was always the more
dominant influence on the views adopted by Professor Stone, however,
62 Star, above n 9, 56.
63 Robert Hawke, ‘Julius Stone -
Humanist, Jurist and Internationalist’, Inaugural Julius Stone and Reca Stone Memorial Lecture (1986) 9 University
of New South Wales
64 Star, above n 9, 1-80.
65 Stone, above n 3, 14. Stone talks
of Sir Isaacs’ indifference to the plight of their ‘brethren’.
66 Stone, above n 3, 15-16.
77
(2008) 10 UNDALR
was the national affinity Israel
inspired. Being an avowed Zionist, Stone
was a zealous Jewish nationalist and in this regard belied his humanist
reputation.
was a zealous Jewish nationalist and in this regard belied his humanist
reputation.
The moral authority attributed to international law was well
understood by Professor Stone.67 Even more so, Stone
appreciated the authority derived from objectivity in legal analysis - especially
when reflected in judicial decisions. This intuitive
understanding of authority in the context of reasoned discourse, as well
as the belief that international law may be seen as representing some higher
moral framework may also have shaped Stone’s work on the Middle East.
Stone was ‘almost
obsessed’ with the concept of
‘justice’ and its
relationship to manifestations of positive law.68 As such, when the
desperate plight of European Jewry became known to Stone, a feeling
of injustice naturally arose (as it did amongst the entire world);
relationship to manifestations of positive law.68 As such, when the
desperate plight of European Jewry became known to Stone, a feeling
of injustice naturally arose (as it did amongst the entire world);
the protection of Jews thus became the inimitable and concrete
manifestation of ‘justice’ that was branded in Stone’s mind and heart.
Positive law, on this basis, had to be aligned with the cause ofIsrael
if Stone’s jurisprudential beliefs were to be honestly upheld. This, it is
submitted, pre-disposed Stone to certain conclusions in his bona fide
objective analysis ofPalestine .
For Stone, all that was needed was an
analytical vehicle capable of conveying the desired conclusions with
the requisite authority, as well as maintaining the scholarly honesty
and integrity that Stone so often preached and practised. These were
two ends that did not necessarily coincide. The dilemma this situation
posed crystallised into a legal analysis onPalestine ,
relentlessly sharp
and seemingly objective, almost to the point of mechanical detachment.
Despite crystals appearing beautifully transparent, they however remain
notoriously difficult to see through.
manifestation of ‘justice’ that was branded in Stone’s mind and heart.
Positive law, on this basis, had to be aligned with the cause of
if Stone’s jurisprudential beliefs were to be honestly upheld. This, it is
submitted, pre-disposed Stone to certain conclusions in his bona fide
objective analysis of
analytical vehicle capable of conveying the desired conclusions with
the requisite authority, as well as maintaining the scholarly honesty
and integrity that Stone so often preached and practised. These were
two ends that did not necessarily coincide. The dilemma this situation
posed crystallised into a legal analysis on
and seemingly objective, almost to the point of mechanical detachment.
Despite crystals appearing beautifully transparent, they however remain
notoriously difficult to see through.
B Understanding Stone’s Formal
Approach
Professor Stone’s approach to international law on the
question of
67 Julius Stone, ‘International Law
and Contemporary Social Trends: Some Reflections’ (1956) 29 Rocky Mountains Law
Review 149, 156-166. In this deeply insightful article into the thoughts of Professor Stone, grave concerns are voiced for the fate
and future of humanity given the technological advances witnessed by Stone’s generation.
Stone sees man in a ‘disrupted phase in his moral heritage’ and identifies
international law as having to be necessarily studied for its potential utility as ‘an effective
humanity-wide social control’. In a way, Stone could be interpreted as lamenting a loss
in spirituality in the technologically advanced world and proposing international
law as part of a higher moral order that needs to be rediscovered (or preserved).
On this
basis, aligning international law with the aims of Zionism, for Stone, took on
a secular imperative akin to divine justification in a religious context.
68 Goldring, above n 30, 6-7.
78
A REFLECTION OF THE VIEWS OF JULIUS STONE
Stone’s application of international law were understood in a way that
rendered international law always supportive of the cause of
Many of the ‘facts’ Professor Stone relied upon, however, were based
on indeterminate categories open to lee-ways of interpretation. The
principal example of the latter position can be seen in Professor Stone’s
approach as to what constitutes a ‘peoples or nation’ for the purpose of
self-determination as explored above.
Professor Stone either knew of these linguistic apparatuses
and how to
maneuver within them to the advantage of his views, or alternatively
Professor Stone just did not perceive the indeterminacy in their
meaning. To imbue Professor Stone with the sinister ‘inside’ knowledge
of how formalism can be abused is a blatant charge of intellectual
dishonesty. This is unjustified. In a sense the conclusions offered in this
paper are redemptive of Professor Stone in that it is argued that many
of the misconceptions, omissions and skewed interpretations present
in the factual foundations of Professor Stone’s work were influenced by
the blinding passion Stone felt for the plight of world Jewry.
maneuver within them to the advantage of his views, or alternatively
Professor Stone just did not perceive the indeterminacy in their
meaning. To imbue Professor Stone with the sinister ‘inside’ knowledge
of how formalism can be abused is a blatant charge of intellectual
dishonesty. This is unjustified. In a sense the conclusions offered in this
paper are redemptive of Professor Stone in that it is argued that many
of the misconceptions, omissions and skewed interpretations present
in the factual foundations of Professor Stone’s work were influenced by
the blinding passion Stone felt for the plight of world Jewry.
It could be argued that, the intellectual objectivity the
methodology
of legal formalism stood as a strong counterweight to Stone’s own
admittedly bias views. As such the legal analysis of Professor Stone
may have been sound but the foundations of his analysis had a built-
in or structural bias.69 An awareness of his own bias may have indeed
sharpened Stone’s focus in terms of his application of legal analysis. Yet
the palette on which Stone presented the legal framework he saw as
applicable was the world in its desperate state after the Second World
War; a world Stone perceived as populated by men on the brink of self-
destruction. It was a world colored and influenced by the personal
emotions and public concerns of Professor Stone. And it is from within
this perceived world that Professor Stone extracted the factual evidence
necessary to the application of international law.
of legal formalism stood as a strong counterweight to Stone’s own
admittedly bias views. As such the legal analysis of Professor Stone
may have been sound but the foundations of his analysis had a built-
in or structural bias.69 An awareness of his own bias may have indeed
sharpened Stone’s focus in terms of his application of legal analysis. Yet
the palette on which Stone presented the legal framework he saw as
applicable was the world in its desperate state after the Second World
War; a world Stone perceived as populated by men on the brink of self-
destruction. It was a world colored and influenced by the personal
emotions and public concerns of Professor Stone. And it is from within
this perceived world that Professor Stone extracted the factual evidence
necessary to the application of international law.
Professor Stone did not, as it could very well be
argued, use his
understanding of the convenient shelter formalism may provide, to
proffer personal arguments in the veneer of an objective analysis. Much
like the legal reasoning process adopted by the judges Professor Stone
spent so much time exploring, Stone’s own reasoning process was
not disingenuous. It may have been flawed, or at least skewed, as to
its factual foundations, but it was nevertheless honest. Stone, perhaps,
could not perceive his own predilections as, for him, the seriousness of
the situation facing world Jewry did not require reflection, it required
understanding of the convenient shelter formalism may provide, to
proffer personal arguments in the veneer of an objective analysis. Much
like the legal reasoning process adopted by the judges Professor Stone
spent so much time exploring, Stone’s own reasoning process was
not disingenuous. It may have been flawed, or at least skewed, as to
its factual foundations, but it was nevertheless honest. Stone, perhaps,
could not perceive his own predilections as, for him, the seriousness of
the situation facing world Jewry did not require reflection, it required
69 See Saul, above n 2.
79
(2008) 10 UNDALR
action. Inspired and orientated by the notion of
‘justice’ represented
by Zionism, Stone imbued all indeterminate words or concepts with a
meaning sympathetic to his beliefs. As such, when applying the ideal of
self-determination, for example, the contested definition of a ‘peoples
or nation’ naturally included the Zionists inPalestine
and excluded the
incumbent peasant Arabs.
by Zionism, Stone imbued all indeterminate words or concepts with a
meaning sympathetic to his beliefs. As such, when applying the ideal of
self-determination, for example, the contested definition of a ‘peoples
or nation’ naturally included the Zionists in
incumbent peasant Arabs.
Another example of this approach may be seen in Stone’s
treatment of
Israeli settlements under the Fourth Geneva Convention. The Convention
makes provisions that an ‘occupying Power shall not deport or transfer
parts of its own civilian population into territory it occupies’.70 Upon a
strict reading of this provision, Israeli civilian settlements in the West Bank
and Gaza would be unlawful. However, on this point Stone looks to the
drafting history of the particular provision and notes that the original
purpose of the Convention was to address the Nazi deportation of German
Jews to death camps in occupiedPoland
and other occupied territories.
Professor Stone posited that for this very same provision to be used against
the Jewish state would push ‘irony’ to the level of ‘absurdity’.71 Employing
this purposive approach to interpretation, however, is rejected as Professor
Stone again presents the case for Israel in a formalist manner. According to
Professor Stone’s assessment of the applicable facts, theWest Bank
was not
an occupied territory to which another state held claim.Israel
is thus not an
occupying power pursuant to Article 49(6),72 thus rendering this particular
Article of the Convention inapplicable to the case of the Israeli presence
in theWest Bank . The fact that the
international framework that Professor
Stone was implementing gave no voice to the incumbent Arab population
(it only considered state actors) seemed of no consequence. The system
was again ignoring those that were most vulnerable and Professor Stone
seemed to dispassionately partake in its operations and perpetuation.
Israeli settlements under the Fourth Geneva Convention. The Convention
makes provisions that an ‘occupying Power shall not deport or transfer
parts of its own civilian population into territory it occupies’.70 Upon a
strict reading of this provision, Israeli civilian settlements in the West Bank
and Gaza would be unlawful. However, on this point Stone looks to the
drafting history of the particular provision and notes that the original
purpose of the Convention was to address the Nazi deportation of German
Jews to death camps in occupied
Professor Stone posited that for this very same provision to be used against
the Jewish state would push ‘irony’ to the level of ‘absurdity’.71 Employing
this purposive approach to interpretation, however, is rejected as Professor
Stone again presents the case for Israel in a formalist manner. According to
Professor Stone’s assessment of the applicable facts, the
an occupied territory to which another state held claim.
occupying power pursuant to Article 49(6),72 thus rendering this particular
Article of the Convention inapplicable to the case of the Israeli presence
in the
Stone was implementing gave no voice to the incumbent Arab population
(it only considered state actors) seemed of no consequence. The system
was again ignoring those that were most vulnerable and Professor Stone
seemed to dispassionately partake in its operations and perpetuation.
Whilst the work of Professor Stone on the dispute between Israel
and
the Palestinians was close to heart, it was always overshadowed by
Professor Stone’s more profound work and interests in jurisprudence
and international law. Thus from a pragmatic point of view, strict
formalism was a time-efficient approach by which Stone could
discharge the duty he may have perceived as incumbent upon himself.
Professor Stone applied given rules to given facts and came up with
a conclusion. Thus the position and prestige of Stone’s professorship
could add to the authoritative perspectives a formal approach would
convey. Much like the common law judges, Stone was able to present
the Palestinians was close to heart, it was always overshadowed by
Professor Stone’s more profound work and interests in jurisprudence
and international law. Thus from a pragmatic point of view, strict
formalism was a time-efficient approach by which Stone could
discharge the duty he may have perceived as incumbent upon himself.
Professor Stone applied given rules to given facts and came up with
a conclusion. Thus the position and prestige of Stone’s professorship
could add to the authoritative perspectives a formal approach would
convey. Much like the common law judges, Stone was able to present
70 Fourth Geneva Convention, Article
49(6).
71 International Law and the
Arab-Israeli Conflict: Extracts from “Israel
and Palestine
- Assault on the Law of Nations” by Julius Stone (1st ed,
Bellevue Hill, N.S.W: Jirlac, 2003) Ian Lacey (ed), 14-15.
72 Stone, above n 14, 177-181.
80
A REFLECTION OF THE VIEWS OF JULIUS STONE
an argument as to what the law fundamentally ‘is’ and how it
‘applies’
without having to grapple with the deeper philosophical questions
of what the law ‘ought’ to be. Thus if the application of international
law further marginalized and silenced the displaced Arab population
of Palestine, that was a consequence of the legal framework and not
an issue properly considered by a dispassionate observer applying the
existing law to a given set of facts. In this context, moral questions were
to be contemplated independently of the international legal framework,
even though Stone especially advocated their amalgamation into the
study of international law.73 On the question of Palestine in particular
there was no quarrelling with Stone as to morality. Moral positions, it
seemed, had already been settled.
without having to grapple with the deeper philosophical questions
of what the law ‘ought’ to be. Thus if the application of international
law further marginalized and silenced the displaced Arab population
of Palestine, that was a consequence of the legal framework and not
an issue properly considered by a dispassionate observer applying the
existing law to a given set of facts. In this context, moral questions were
to be contemplated independently of the international legal framework,
even though Stone especially advocated their amalgamation into the
study of international law.73 On the question of Palestine in particular
there was no quarrelling with Stone as to morality. Moral positions, it
seemed, had already been settled.
Although less likely a motivating source directing Stone to
adopt a
formalist approach, internal Zionist politics may provide another reason
Stone sought to project a definite basis within international law for the
existence ofIsrael
within the limits of the British Mandate over Palestine .
By the end of the Second World War divergent strands within Zionism
had yet to be completely settled.74 Although there is now a mainstream
Zionist belief thatIsrael
should be secured within its June 1967 borders,
there remains distinct dissent within Zionist ranks as to the scope of the
Jewish state. Of particular prominence in the period when Stone was
writing was the Zionist strand adhering less to the visions of Theodore
Herzl and its labor leanings and more so to the extreme nationalism of
Vladimir Jabotinsky.75 Many Jewish intellectuals of the period abhorred
Jabotinsky and the extremist legacy he helped establish in opposition
to the socialist wing of the Zionist movement. Indeed when Menachen
Begin, an ideological descendant of Jabotinsky and later Prime Minister of
Israel (June 1977 - October 1983), visited the United States in 1948, a list
of prominent Jewish intellectuals wrote an open letter to the editors of
the New York Times opposing the visit and accusing Begin of heading an
Israeli political party that was akin to the Nazi party.76 One of Jabotinsky’s
aims was to establish a Jewish state on both sides of the Jordan River.
Whether Stone’s formalism was also meant to give weight and authority
to the socialist wing of Zionism is unclear. It did nevertheless provide
a basis in international law refuting the maximalist claims to territory
formalist approach, internal Zionist politics may provide another reason
Stone sought to project a definite basis within international law for the
existence of
By the end of the Second World War divergent strands within Zionism
had yet to be completely settled.74 Although there is now a mainstream
Zionist belief that
there remains distinct dissent within Zionist ranks as to the scope of the
Jewish state. Of particular prominence in the period when Stone was
writing was the Zionist strand adhering less to the visions of Theodore
Herzl and its labor leanings and more so to the extreme nationalism of
Vladimir Jabotinsky.75 Many Jewish intellectuals of the period abhorred
Jabotinsky and the extremist legacy he helped establish in opposition
to the socialist wing of the Zionist movement. Indeed when Menachen
Begin, an ideological descendant of Jabotinsky and later Prime Minister of
Israel (June 1977 - October 1983), visited the United States in 1948, a list
of prominent Jewish intellectuals wrote an open letter to the editors of
the New York Times opposing the visit and accusing Begin of heading an
Israeli political party that was akin to the Nazi party.76 One of Jabotinsky’s
aims was to establish a Jewish state on both sides of the Jordan River.
Whether Stone’s formalism was also meant to give weight and authority
to the socialist wing of Zionism is unclear. It did nevertheless provide
a basis in international law refuting the maximalist claims to territory
73 See Stone, above n 45, 174.
74 See generally Walter
Laquear, A History of Zionism (1st ed, London :
Weidenfeld and
Nicolson, 1972); See generally also Ehud
Sprinzak, Brother Against Brother: Violence and Extremism in Israeli
Politics from Altalena to the Rabin Assassination (1st ed, New
York : The Free Press, 1999).
75 Sprinzak, above n 74, 34. Sprinzak
notes that David Ben Gurion, the first Prime
Minister of Israel ,
once referred to Jabotinsky in a debate as ‘Vladimir Hitler’.
76 ‘New Palestine
Party’, New York Times, New York ,
December 2, 1948 . Among the
more prominent names on the letter were Hannah Arendt,
Albert Einstein and Sidney
Hook.
Hook.
81
(2008) 10 UNDALR
held by the right wing factions within Zionist
politics. There is little direct evidence, however, that
Stone engaged in any meaningful way with internal Zionist politics.
Given the certainty of ‘right’ and ‘wrong’ in the case of
Zionist claims,
and the seemingly concrete definition of justice ascribed to the
circumstances by Stone, a declaratory approach was perhaps always
to be expected. It allowed a strict and honest scholar the scope to
be rigorous in his legal analysis whilst still supporting the particular
political ends he saw as just. Legal formalism provided the authority
and clarity Stone desired but at the same time provided some clear scope
for the incorporation of personal beliefs, albeit perhaps unknowingly.
The formalist approach was perhaps a compromise. The adherence to
the declaratory approach to legal reasoning was neither a sophisticated
ploy utilized by a man well versed in the ways of legal illusion, nor was
it the result of sloppy factual research. Stone’s academic standards and
intellectual honesty do not conform to either conclusion. The only way
in which Stone’s approach on the question of Palestine can be reconciled
with his character and other branches of his research is to recognize
that Stone was imperfectly human, prone to passion and its distorting
influences. His mind may not have allowed him to misrepresent the law
or its application, but his heart did influence the way in which Stone
understood and saw the world to which the law would apply.
and the seemingly concrete definition of justice ascribed to the
circumstances by Stone, a declaratory approach was perhaps always
to be expected. It allowed a strict and honest scholar the scope to
be rigorous in his legal analysis whilst still supporting the particular
political ends he saw as just. Legal formalism provided the authority
and clarity Stone desired but at the same time provided some clear scope
for the incorporation of personal beliefs, albeit perhaps unknowingly.
The formalist approach was perhaps a compromise. The adherence to
the declaratory approach to legal reasoning was neither a sophisticated
ploy utilized by a man well versed in the ways of legal illusion, nor was
it the result of sloppy factual research. Stone’s academic standards and
intellectual honesty do not conform to either conclusion. The only way
in which Stone’s approach on the question of Palestine can be reconciled
with his character and other branches of his research is to recognize
that Stone was imperfectly human, prone to passion and its distorting
influences. His mind may not have allowed him to misrepresent the law
or its application, but his heart did influence the way in which Stone
understood and saw the world to which the law would apply.
V CONCLUSION
To use the phrase Professor Stone was said to have commonly
used,
this paper has been prepared in the spirit of ‘diplomacy of scholarly
discourse’.77 A version of this paper was presented by the author at
the Julius Stone Centenary Conference held at Sydney University 100
years to the day of Professor Stone’s birth.78 On this basis it would
have perhaps been discourteous to take an overly critical tone of such
an accomplished and influential scholar. Yet it would have been even
more discourteous to Professor Stone’s legacy to shy away from honest
scholarly exploration and conjecture. Thus the final reflection inspired
by this study of Professor Stone and his approach to the applicability
of international law in theMiddle East is a reflection
on the role of the
scholar.
this paper has been prepared in the spirit of ‘diplomacy of scholarly
discourse’.77 A version of this paper was presented by the author at
the Julius Stone Centenary Conference held at Sydney University 100
years to the day of Professor Stone’s birth.78 On this basis it would
have perhaps been discourteous to take an overly critical tone of such
an accomplished and influential scholar. Yet it would have been even
more discourteous to Professor Stone’s legacy to shy away from honest
scholarly exploration and conjecture. Thus the final reflection inspired
by this study of Professor Stone and his approach to the applicability
of international law in the
scholar.
77 See Upendra Baxi, ‘Keynote
Address: Revisiting Social Dimensions of Law and Justice
in a Post Human Era’ (Speech delivered at the Julius Stone
Centenary Conference, Sydney , Australia 7 July 2007 ).
78 This paper was originally
delivered by the author on 7 July 2007 .
Professor Stone was
born on 7 July 1907 .
82
A REFLECTION OF THE VIEWS OF JULIUS STONE
French philosopher, Julien
Benda, addressed this issue in his famous
derision of European scholars published in 1928 under the French title
La Trahison Des Clercs - The Betrayal of the Intellectuals.79 Benda
charged that ‘men of letters’, as he called them, had lost sight of a
transcendental truth and become the mouthpieces of national interest
and war-mongering. This theme is distinctly contemporary given the
prominence of the ‘think tank industry’, particularly in theUnited
States .
Ironically and interestingly, Benda began his career by writing on the
Dreyfus affair, an incident that inspired fellow Jewish writer Theordore
Herzl to theorize on the Zionist project. Years later, Benda, in the
Betrayal of the Intellectuals, pointed to bourgeois Jewish nationalism
as an example of the broader nationalist disease which stands to ‘those
interested in the progress of peace’ as ‘one more arrogance which set[s]
men against each other’.80
derision of European scholars published in 1928 under the French title
La Trahison Des Clercs - The Betrayal of the Intellectuals.79 Benda
charged that ‘men of letters’, as he called them, had lost sight of a
transcendental truth and become the mouthpieces of national interest
and war-mongering. This theme is distinctly contemporary given the
prominence of the ‘think tank industry’, particularly in the
Ironically and interestingly, Benda began his career by writing on the
Dreyfus affair, an incident that inspired fellow Jewish writer Theordore
Herzl to theorize on the Zionist project. Years later, Benda, in the
Betrayal of the Intellectuals, pointed to bourgeois Jewish nationalism
as an example of the broader nationalist disease which stands to ‘those
interested in the progress of peace’ as ‘one more arrogance which set[s]
men against each other’.80
Stone perhaps did not believe in a transcendental truth, but
a notion of
truth nevertheless did form the core of Stone’s beliefs. From engaging
with Professor Stone’s writings one is left with the strong impression
that for Professor Stone, truth is something that is not divinely bestowed
or revealed, his challenge to natural law philosophy speaks as much, but
rather, truth is socially derived. As such, branding Stone as one of those
intellectuals who gave up on universalism and consciously pursued
a nationalist philosophy is perhaps inaccurate. Yet the total and
unquestioned support for Israel given by Stone is difficult to reconcile
with his own calling to ‘readjust our vision … so we can see beyond
the merely nationalized versions of Truth and Justice which have come
to dominate in our age of ideologies and mass communication’.81 It
has been argued here that the pursuit of the strict legalistic approach
identified as legal formalism was an attempt by Professor Stone, albeit
unsuccessful, to overcome the nationalized versions of truth and justice
held by (or in hold of) Stone on the issue of Israel and Palestine. Benda
further argues, of the formal methods adopted by scholars such as
Stone, that ‘today all political ideologies claim to be founded on science,
to be the result of precise “observations of fact”’.82 Whilst national or
group prejudice may undermine the scholarly task, it should not be
doubted that a loyalty to the precepts of universalism is also a kowtow
to political ideology. So then what remains as to the role of the scholar?
truth nevertheless did form the core of Stone’s beliefs. From engaging
with Professor Stone’s writings one is left with the strong impression
that for Professor Stone, truth is something that is not divinely bestowed
or revealed, his challenge to natural law philosophy speaks as much, but
rather, truth is socially derived. As such, branding Stone as one of those
intellectuals who gave up on universalism and consciously pursued
a nationalist philosophy is perhaps inaccurate. Yet the total and
unquestioned support for Israel given by Stone is difficult to reconcile
with his own calling to ‘readjust our vision … so we can see beyond
the merely nationalized versions of Truth and Justice which have come
to dominate in our age of ideologies and mass communication’.81 It
has been argued here that the pursuit of the strict legalistic approach
identified as legal formalism was an attempt by Professor Stone, albeit
unsuccessful, to overcome the nationalized versions of truth and justice
held by (or in hold of) Stone on the issue of Israel and Palestine. Benda
further argues, of the formal methods adopted by scholars such as
Stone, that ‘today all political ideologies claim to be founded on science,
to be the result of precise “observations of fact”’.82 Whilst national or
group prejudice may undermine the scholarly task, it should not be
doubted that a loyalty to the precepts of universalism is also a kowtow
to political ideology. So then what remains as to the role of the scholar?
There seems to be two inter-related yet hierarchical types
of scholarship:
critical scholarship and the higher order analytical scholarship. Critical
scholarship is not a means by which to perpetuate a notion of truth or
critical scholarship and the higher order analytical scholarship. Critical
scholarship is not a means by which to perpetuate a notion of truth or
79 Julien Benda, The Betrayal of
the Intellectuals (2nd ed, Boston :
Beacon Press, 1955).
80 Benda, above n 79, 8-9.
81 Julius Stone ‘Law Force and
Survival’ (1960) 39 Foreign Affairs 549, 559.
82 Benda, above n 79, 22.
83
(2008) 10 UNDALR
justice, it is a personal exploration into those
questions. It is not a method
supporting, justifying or upholding political views, it is a questioning of
all views and identifying, as stated by Wittgenstein, that which can be
logically discussed and remaining in quiet reverence of the rest.83 When
all criticisms have been exhausted and the mind of the scholar is stripped
bare, devoid of prejudice and passion, when it is in a state of submission,
or what in Arabic is called - Is’lam or what in the western tradition is
known as stoic clarity, it is then that analytical scholarship may take
place.
supporting, justifying or upholding political views, it is a questioning of
all views and identifying, as stated by Wittgenstein, that which can be
logically discussed and remaining in quiet reverence of the rest.83 When
all criticisms have been exhausted and the mind of the scholar is stripped
bare, devoid of prejudice and passion, when it is in a state of submission,
or what in Arabic is called - Is’lam or what in the western tradition is
known as stoic clarity, it is then that analytical scholarship may take
place.
Stone’s formal approach to international law in this context
was an attempt at analytical scholarship before the cleansing
process of critical scholarship had run its path. Professor
Stone approached the subject of Palestine from the obdurate
perspective that ‘there are no Arab claims, moral or otherwise, which
can reasonably be held to stand in the way of righting this great wrong
to European Jewry’.84
was an attempt at analytical scholarship before the cleansing
process of critical scholarship had run its path. Professor
Stone approached the subject of Palestine from the obdurate
perspective that ‘there are no Arab claims, moral or otherwise, which
can reasonably be held to stand in the way of righting this great wrong
to European Jewry’.84
The greatest jurisprudential lesson that perhaps may be taken
from
Professor Stone’s legacy will not be found in any of the volumes he
so brilliantly compiled. Rather, it is submitted here, that in the efforts
of the man himself on the issue of Palestine and Israel, Julius Stone
consummately played out that reality which he had for so long
acknowledged in the law - that reality was that, in the human condition,
reason is a constituent faculty of man, yet man is not solely constituted
of reason.
Professor Stone’s legacy will not be found in any of the volumes he
so brilliantly compiled. Rather, it is submitted here, that in the efforts
of the man himself on the issue of Palestine and Israel, Julius Stone
consummately played out that reality which he had for so long
acknowledged in the law - that reality was that, in the human condition,
reason is a constituent faculty of man, yet man is not solely constituted
of reason.
83 See generally Ludwig Von
Wittgenstein, On Certainty (1st ed, Oxford :
Blackwell,
1969).
84 Stone, above n 3, 17-18.
84
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