‘An Unfortunate Coincidence’: Jews and Jewishness in Twentieth‐century English Judicial Discourse
| Date | 01 June 2006 |
| Author | Didi Herman |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00358.x |
| Published date | 01 June 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 2, JUNE 2006
ISSN: 0263-323X, pp. 277±301
`An Unfortunate Coincidence': Jews and Jewishness in
Twentieth-century English Judicial Discourse
Didi Herman*
This paper explores the neglected area of representations of Jews and
Jewishness in English legal cases. In considering judicial knowledge of
`the Jew', I ask three primary questions. First, how do English judges
understand and represent `the Jew' and in relation to what material
factors do these understandings and representations change? Second,
how do English judges construct racial knowledge, what rhetorical
technologies are fashioned and deployed? Third, are the effects of
contemporary judicial racializations of Jewishness different in substance
from earlier ones? The purpose of this paper is to study the encounter
between English judges and `the Jew' in the twentieth century, eschewing
a reading that centres `antisemitism' or `discrimination' in favour of one
that focuses on the complex and contradictory narratives in these
judgments and the kinds of work these narratives do.
The wandering Jew has no nation. He is a wanderer over the face of the earth.
1
Lord Denning wrote these words in 1982, in a case that ostensibly had
nothing to do with Jews at all. As Master of the Rolls at the Court of Appeal,
Denning was writing one of the judgments in Mandla v. Dowell Lee,aRace
Relations Act 1976 case about whether Sikhs constituted an `ethnic group'
277
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*Kent Law School, Eliot College, University of Kent, Canterbury, Kent CT2
7NS, England
d.herman@kent.ac.uk
I would like to thank Kent Law School and the AHRC Research Centre for Law, Gender,
and Sexuality for facilitating this research. Previous drafts of this paper have benefited
enormously from the comments of friends and colleagues. I would like to thank: Brenna
Bhandar (and for her wonderful research assistance), David Cesarani, Ray Cocks, Davina
Cooper, David Fraser, Reina Lewis, Les Moran, Qudsia Mirza, Stewart Motha, Sherene
Razack, David Seymour, and the four anonymous JLS referees. I am also grateful for the
feedback I received when giving versions of this paper in 2005, particularly at Keele
University, Westminster University, the Law & Society Annual Meeting, and the Parkes
Centre Conference on `Jews, Race and Empire' at Southampton University.
for the purposes of the Act. He and his colleagues determined Sikhs did not;
however, on appeal, the House of Lords overturned their decision in what
became, and remains, the leading case on the meaning of `ethnic group'
under the Act.
2
While Denning rejected the legitimacy of Sikhs as an ethnic
group, albeit through affirming Jews as a (stateless) racial group, the House
of Lords made little mention of Jews at all, despite relying heavily for their
definition of `ethnic group' on a New Zealand case about Jews.
3
Subsequent
cases relying on Mandla also failed to acknowledge the role played by `the
Jew'
4
in the development of United Kingdom race relations law.
In this paper, I take this perhaps puzzling appearance (and disappearance)
of `the Jew' in Mandla as a springboard to begin mapping the terrain of
English judicial representations of `the Jew'.
5
I say begin mapping because
very little work exists in this field. When Davina Cooper and I wrote a piece
some years ago on `the Jew' of twentieth-century English trust law, we drew
heavily on Jonathan Bush's work about the deployment of `the Jew' in early
English legal developments,
6
practically the only work we could find in the
field. Unfortunately, since the publication of our piece in 1999, to the best of
my knowledge, only one further, related, piece has been written in the area.
7
The absence, in the United Kingdom, of legal studies scholarship on `the
Jew' is not surprising given the paucity of work on law and racial repre-
278
2Mandla and another v. Dowell Lee and another [1983] 1 All E.R. 1062.
3King-Ansell v. Police [1979] 2 NZLR 531 (NZ CA).
4 Like B. Cheyette, Constructions of `The Jew' in English Literature and Society
(1993) 10±11, and others, I use `the Jew' to refer to the subjects of (legal) discourse.
5 This paper is thus not about how Jews, Jewish judges (see, for example, B. Jackson,
`Brother Daniel: The construction of Jewish identity in the Israel Supreme Court'
(1993) 17 International J. for the Semiotics of Law 115±146), or Jewish social
scientists (M. Hart, Social Science and the Politics of Modern Jewish Identity (2000),
for example) understand Jews and Jewishness. Recent preoccupations with the figure
of `the Jew' in ethical jurisprudence are also beyond the scope of this paper.
6D.Cooper and D. Herman, `Jews and other uncertainties: Race, faith and English
law' (1999) 19 Legal Studies 339±66; J. Bush, ```You're gonna miss me when I'm
gone'': Early modern common law discourse and the case of the Jews' (1993) 5
Wisconsin Law J. 1225±85. See, also, J.A. Shapiro, `The Shetar's effect on English
law ± A law of the Jews becomes the law of the land' (1983) 71 Georgetown Law J.
1179±200.
7 See G. Godfrey, `The judges and the Jews' (2003) Ecclesiastical Law J. 50±61,
although this piece is not a scholarly critique. David Fraser's important
contributions, The Jews of the Channel Islands and the Rule of Law, 1940±1945
(2000), and ` ``This is not like any other legal question'': A brief history of Nazi
law before U.K. and U.S. courts' (2003±2004) 19 Connecticut J. of International
Law 59±125, are also not about racial representation per se, but about the role of
law and legal professionals in the Holocaust. Louise London's thorough account of
United Kingdom law and policy towards Jewish refugees in the Second World War
is not focused on judicial racial representations: see L. London, Whitehall and the
Jews, 1933±1948: British Immigration Policy, Jewish Refugees and the Holocaust
(2003).
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