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‘More a denial than a safeguard of rights’: Law, Politics, and Constitutional Discussions in Mandatory Palestine

In the autumn of 1930, a long memorandum landed on the desk of Lord Frederick Lugard, the British representative to the Permanent Mandates Commission of the League of Nations. It had been sent by Chaim Weizmann, the president of the Zionist Organization, with whom Lugard was in close contact over the affairs of Palestine, then a British mandate. At the time, Weizmann was working intensively to mitigate the implications of the statement of policy by the British Government, the ‘Passfield White Paper’, published in October of that year. This statement, which came about following reports on the causes of inter-communal violence in the summer of 1929 and the conditions of land available for settlement and development in Palestine, confirmed the government’s intention to limit Jewish immigration and land purchases. It also reaffirmed its plan to establish self-governing institutions in Palestine, as stipulated in the Mandate granted to Britain by the League of Nations in the summer of 1922.1

Fig 1:  The Mandate for Palestine, 1922. Public domain. Archive.org.

The author of the memorandum was Jacob Stoyanovsky, a Jerusalem-based Jewish lawyer with a Doctor of Laws degree from the Universities of Paris and London. He was the author of a highly authoritative work, published in French in 1925, dedicated to studying the theory underpinning the mandate system, and a 1928 monograph on the Mandate for Palestine.2 Weizmann accordingly called him ‘an authority on Mandates’.3 Another Jewish lawyer at the time claimed that the Zionist Executive in London had reached out to a few renowned scholars in England—among them the later president of the International Court of Justice Arnold McNair and the political theorist Harold Laski—asking them for support in formulating an indictment of the White Paper, and that all these scholars had referred the Executive to Stoyanovsky.4

Zionist Objections to the White Paper

While Stoyanovsky’s 1928 book was an academic analysis of the Mandate for Palestine, the memorandum was written from the Zionist point of view. It sought to undermine the validity of the White Paper by demonstrating its incompatibility with the Mandate, which was perceived by Britain and the Permanent Mandates Commission as the legal framework for administering Palestine. ‘The Palestine mandate, like all the other mandates, is a legal document in as much as it is susceptible of legal interpretation’, Stoyanovsky opined.5 However, he contended that any interpretation had to remain within the bounds of the original document, and the interpretation given to the Mandate and the Mandatory’s obligations in the White Paper clearly exceeded such limits. For example, it explained the need to limit Jewish immigration and land sales by referring to the British obligation to give effect to the Mandate provision safeguarding ‘the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion’.6 However, Stoyanovsky argued that the Supreme Court of Palestine had already determined in a previous case that some level of interference with these rights was ‘unavoidable’,7 so the crux of this provision was not the former but the latter part of it, that is, the protection the Mandate afforded against discrimination. In other words, the Mandate did not provide for the protection of civil rights, but only against discrimination in the exercising of these.

Stoyanovsky went one step further, arguing that not only were there no unlimited civil rights in Palestine, but Jewish immigration and land sales did not interfere with them. The Mandate stipulated that the British Government should ‘facilitate’ Jewish immigration and ‘encourage’ close settlement by Jews on the land ‘while ensuring that the rights and position of other sections of the population are not prejudiced’.8 In Stoyanovsky’s view, this provision meant that immigration and land sales should be prohibited only if they interfered with the ‘position of the Arab population as it was when the mandate came into force’, in other words, that ‘it should not become worse than it was then’.9 ‘The fact that the Arabs have not benefited through Jewish immigration and land settlement to the extent which the Mandatory appears to have expected’ should not, he emphasized, result in land sales and a restriction on the allocation of certificates.10

Fig 2: ‘The strength of the Hebrew Yishuv [lies] in unlimited aliyah [immigration]!’ A Jewish rally in Haifa, 1934.
Photo by Zoltan Kluger. National Photo Collection of Israel , Photography Department, Government Press Office. Public domain. 

But by these measures, the Mandatory power was jeopardizing Jewish rights in Palestine, Stoyanovsky argued; the White Paper was thus ‘more a denial than a safeguard of rights’.11 For example, he contended that while the Mandate recognized Jewish privileges with regard to state lands and development measures, the White Paper declared that such lands would be required for settlement by landless Arabs. This meant, he argued, that ‘Arab implied interests—even assuming that they are real—are being placed by the Mandatory before express Jewish rights’.12 As interests obviously sat lower in the hierarchy than rights, he felt they should not be given priority. In other words, Stoyanovsky maintained that in an attempt to safeguard rights, which were by definition limited, from non-existent dangers, the Mandatory power was willing to jeopardize express and unalterable Jewish rights in Palestine. In his opinion, the individual civil rights of Arab inhabitants, which were in themselves limited, should give way to national and collective rights and Jewish priority in Palestine.

Law as a Political Instrument

The memorandum, found in Lord Lugard’s papers at the Bodleian Library, Oxford, is one of many examples illustrating how legal actors in Palestine used the law as a political instrument. As historian Natasha Wheatley has observed, the world order that emerged after 1919 and the role of the League within it ‘turned the text of the Mandate for Palestine itself into the terrain of politics’.13 The framework of the Mandates system was a legal novelty, and the texts it produced were subject to ongoing interpretation and political negotiation by historical actors: British colonial officials, League officials and commissioners, Palestinian Arabs, and Zionists in and outside Palestine. This was clear to the historical actors themselves: as the Labour Zionist leader Chaim Arlosoroff argued in 1929, the provisions of the Mandate ‘are open to the most manifold interpretations, and subject to divergent commentaries—according to the interest and motives involved or the political conclusions forgone’.14

Fig 3: Graduates of the Jerusalem Law Classes, 1920s.
Photo courtesy of the British Mandate Jerusalemites Photo Library.

While Stoyanovsky’s text demonstrates how law was mobilized to political ends, his understanding of the legal framework and the rights granted to local populations was only one of many approaches prevalent within the discussions on the Mandate. In their engagement with the law, actors drew on the specific legal knowledge and experience available to them, transferring these to Palestine. British officials, for example, often referred to the imperial context and experience when debating policy in the mandated territory, thus constructing the people of Palestine in the image of other populations subject to British colonial rule. Palestinian Arab leaders, on the other hand, compared the political rights they were afforded with those granted in neighbouring states, or those they had enjoyed before the British occupation in Ottoman Palestine. For their part, Zionist actors dug up legal solutions devised for the plural societies of the Habsburg Empire and applied them to Palestine. The discourse on law and rights in Palestine was thus a polyphonic rather than a monophonic sphere, where knowledge from multiple sources and political traditions intersected. In its ‘clean’ and technical legal language, this sphere may have seemed divorced from the physical colonial reality; however, the two were inherently linked.

My Project

My PhD project, titled ‘Mandatory Subjects: Self-Government and Empire in Palestine, 1917–1948’, reconstructs this discourse while focusing on different aspects of Palestine’s constitutional law. These include the establishment of representative institutions, the debate on nationality, and the introduction of emergency laws. It is attentive to the historical contexts in which the perceptions of the historical actors emerged, especially those of the multinational empires of the past and present—first and foremost the British, Ottoman, and Habsburg Empires. Through sources found in archives in London, Jerusalem, and Geneva, I examine the different definitions of authority and entitlement offered by these historical contexts and the extent to which the mandatory framework challenged these imperially based understandings of political subjecthood. Palestine’s constitutional debates are thus explored as a discourse of the understanding of rights, imperial positions, and political interests. This discourse, on the whole, petered out with the end of British rule in 1948. Nonetheless, it offers its own keys to understanding colonial legacies in Israel/Palestine and their interconnected troubled history and present.


Feature image: Palestinian Arab women protest against the Mandate, 1930. Photo courtesy of the British Mandate Jerusalemites Photo Library.

  1. ‘Statement of Policy by His Majesty’s Government in the United Kingdom’, Oct. 1930, 3692, House of Commons Parliamentary Papers Online, at [https://palestinianmandate.files.wordpress.com/2014/04/cm-3692.pdf], accessed 14 Nov. 2024. []
  2. Jacob Stoyanovsky, The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (London, 1928); Jacob Stoyanovsky, La Théorie Générale des mandats internationaux (Paris, 1925). []
  3. Letter from Chaim Weizmann to Lord Lugard, 31 Oct. 1930, Oxford, Bodleian Libraries, MSS. Lugard 130, File 1. []
  4. Nathan Feinberg, ‘le-zikhro shel d”r yʻaḳov sṭoyanovsḳy [In Memoriam Dr Jacob Stoyanovsky]’, Hapraḳliṭ [The Lawyer], 31 (1976–8), 181–2. []
  5. Jacob Stoyanovsky, ‘Some Observations on the Legal Aspects of the Questions Raised by the British Statement of Policy in Palestine (October 1930)’, p. 1, Oxford, Bodleian Libraries, MSS. Lugard 130, File 1. This statement contradicted the Supreme Court’s view, which Stoyanovsky cited in his book, that ‘the mandate is a political and not a legal document’. Stoyanovsky, The Mandate for Palestine, 242. Interestingly, in 1949 he would declare that the Mandate was a political document rather than a legal one. Jacob Stoyanovsky, Law and Policy under the Palestine Mandate (Jerusalem, 1949), 42. []
  6. Mandate for Palestine, Together with a Note by the Secretary-General Relating to its Application to the Territory Known as Trans-Jordan, Under the Provisions of Article 25 (London, 1922), art. 2. []
  7. Stoyanovsky, ‘Some Observations on the Legal Aspects’, p. 8. []
  8. Mandate for Palestine, art. 6. []
  9. Stoyanovsky, ‘Some Observations on the Legal Aspects’, p. 12. He was referring to the Urtas Springs Ordinance case, in which the Supreme Court of Palestine debated whether an ordinance from 1925 expropriating water from a village nearby Bethlehem was repugnant to the Mandate. []
  10. Ibid. []
  11. Ibid, p. 9. []
  12. Ibid, p. 14. Emphasis is mine. []
  13. Natasha Wheatley, ‘Mandatory Interpretation: Legal Hermeneutics and the New International Order in Arab and Jewish Petitions to the League of Nations’, Past & Present, 227/1 (2015), 205–8, at 247. []
  14. ‘Memorandum Concerning the Establishment of Representative Institutions in Palestine’, 15 Apr. 1929, p. 2, Jerusalem, Central Zionist Archives, S25\4164\1. []

OpenEdition suggests that you cite this post as follows:
Maya Kreiner (January 16, 2025). ‘More a denial than a safeguard of rights’: Law, Politics, and Constitutional Discussions in Mandatory Palestine. German Historical Institute London Blog. Retrieved February 6, 2025 from https://doi.org/10.58079/133g4


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Maya Kreiner

Maya Kreiner is a doctoral student at the Hebrew University of Jerusalem and the Leibniz Institute for Jewish History and Culture—Simon Dubnow, Leipzig. Her PhD project, supervised by Prof Yfaat Weiss, explores constitutional debates in Mandatory Palestine.

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