Making History: Israeli Law and Historical Reconstruction

EBEN MOGLEN

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth—whether in court, by commission of inquiry, or in other ways—is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This "official version" exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of "facts" upon which legal conclusions and enforceable judgments are predicated.	1
In these instances, too, the conditions ably distinguished by Maoz—limitations of time, rules of evidence, inherent properties of adversary presentation—would make the "historian's truth," the "judicial truth," and the "commission of inquiry truth" quite distinct. Of course most automobile accidents and crimes of passion do not acquire the level of contemporary public significance that would justify the investment of public resources in commissions of inquiry, or the degree of long-term significance that will justify the investment of historians' resources either. The system of adjudication, despite the drawbacks Maoz mentions, is our default way of establishing the official version of contested experience.	2
But "significance" is precisely the criterion that applies, it seems to me, rather than the "appropriateness" standard employed by Maoz. As recent events in the United States have shown, a sexual affair in the workplace can be significant enough to form the subject of an investigative report to the legislature; one can easily foresee works of scholarship—once the requisite time has passed—ascribing responsibility for the murder of Nicole Brown Simpson. Writing academic history, litigating in court, and calling a commission of inquiry are all social processes; which of these processes a particular event elicits tells us much about the significance of the event to the society responding and—if we are listening—can therefore illuminate much about that society itself.	3
Maoz is telling us, after all, an Israeli story, about which as an insider he is in some respects too knowing to be historically curious. For those not fully within the local perspective, the question most insistently raised by the events Maoz discusses is, why did these disputes so strongly stimulate the need for imposition of an official version, produced in the particular and problematic ritual form selected at the time?	4
Not that Maoz is unaware of the question. His text commits itself to answers that, while multiple, are narrowly political. The commission of inquiry into the Arlosoroff murder resulted from Menachem Begin's desire to clear the Revisionist movement from responsibility for a political killing never "satisfactorily" resolved in the courts. The Kastner trial arose from the government's haste to clear itself of any connection with "collaborationist" figures. But, as Maoz himself points out with his opening vignette concerning Jesus, though there will always be political reasons for seeking to make or reconsider official judicial versions, more comes into it—and can be winkled out by the historian—than politics narrowly conceived.	5
To do so, however, requires a step away from formal categories of conception. Maoz sometimes seems intent on separating history, politics and law into fully distinct realms of activity, searching out their functional borders, hoping to prevent incursion. But of course it does not really work that way anywhere, and the ways it works differently from place to place and time to time are a subject for, among others, cultural historians of law.	6
Maoz's account is rich enough that wherever one picks up the threads they lead to insight. Let us take Kastner. Israel's polyglot legal culture embraces a distinctively English relation between defamation law and political controversy. The social pattern of using private or criminal actions for defamation against the press to respond to criticism of an official's public and private behavior is an outgrowth of legal doctrine. In the United States, the Supreme Court's interpretation of the First Amendment's effect on defamation claims by public figures renders such actions difficult to win and impossible to defend on appeal, so a practice never particularly common has withered away altogether. English doctrine being far less discouraging, a convention has grown up in which embattled politicians employ libel actions against those who accuse them of disgraces in and out of office. Success in such a lawsuit—where the defendant enjoys the supposed advantage of exoneration if he can prove the truth of his charges—restores enough respectability to prevent the plaintiff's ministerial colleagues from disowning him.	7
The case of Kastner is but one of the highly charged instances in Israeli history when this English-descended legal device of defamation proceedings was used to manufacture cover for bruised political reputations. What makes Kastner different is that most such cases come from an uncomplicated moral environment: the press says the minister is a malefactor and he sues them over supposed inaccuracy. Society is not divided about the wrongfulness of the behavior alleged, so the outcome is either restored respectability or a stinging but confined public disgrace. The prosecution of Gruenwald, however, presented a lawsuit in form about defamation, in convention about Kastner's respectability, and in fact about matters as to which the public moral quandary was profound. Maoz considers the issue to be whether history could be adjudicated; it seems to me rather that the problem raised by Kastner was whether the moral complicity of rescue negotiators could be adjudicated. This was an issue too ambiguous and painful to be addressed directly—through prosecutions under the criminal collaboration statute for example—so the "official version," really a dramatization of ambivalence, occurred through rather circuitous legal channels, doctrinally prepared to receive the corrosive material in a partially insulated fashion.	8
This idiosyncratic social employment of the defamation system resonates in another, deeper way as well. Kastner is but one projection of the image of the "blood libel" in the cultural matrix of Israeli law. The role of the false accusation of sacrifice murder as an excuse for anti-Jewish violence in Christian Europe over the last thousand years renders the concept of the blood libel particularly emotive in Israeli culture; the aggressive refutation of a "blood libel" in the judicial forum is a symbolic vanquishing of the heritage of helplessness in the face of hatred. A plaintiff successfully proving the falsehood of such a charge plays upon a powerful but unarticulated mechanism of group identification; where the English politician who recovers damages for imputations of dishonesty or unchastity merely recoups respectability, remaining "clubbable," the Israeli public figure who can force the blood libel down the throat of the slanderer designates himself a culture hero.	9
Confirmation of this pattern appears in the career at law of General Arik Ariel Sharon, who brought defamation cases on two continents against journalists and publications that had reported on his planning and management of the 1982 Lebanon War. Sharon sought vindication of his handling of that war and, in particular, in his litigation against Time magazine in the U.S., exoneration from charges that he had been complicit in massacres conducted by Phalangist Christian Lebanese militias in two Palestinian refugee camps, Sabra and Shatilla, during the course of the war. In those litigations, too, the adjudication of historical fact was technically at stake, but as Sharon constantly reiterated in characteristically bellicose public statements, the real issue was—in his invariable phrase—the "blood libel." To contest against the blood libel, win or lose, is a source of culturally specific magic for an Israeli politician, whatever may be said in formal terms about the inapplicability of the judicial forums to the resolution of historical questions such as those involved in Kastner or Sharon v. Time. 1	10
The Sharon lawsuits also played a peripheral but revealing role in Maoz's other story, that of the commission to investigate the Arlosoroff murder. For Maoz, the commission's legitimacy to investigate historical events was undermined by the resignation of Yoav Gelber, the only professional historian among its members. This resignation was a political protest against the government's refusal to convene another commission to investigate the Sabra and Shatilla massacres. The Begin government eventually reversed itself on this point and convened the Kahan Commission, which sharply criticized Sharon for apparent complicity in the massacres, thus giving rise in turn to his libel lawsuits against publications that reported on the commission's findings. One rather regrets that Maoz did not trace out this additional cycle, for it would have helped further to illuminate the cultural role of the commission of inquiry in Israeli society.	11
Zionism, like other movements of cultural nationalism, has been a profuse creator of the "usable past" for nation-building purposes. But in a society committed to free speech to the point of incorrigible disputatiousness, Zionism in power has lacked a compliant press through which to make the first draft of its contemporary history. In this respect unlike most other postcolonial regimes in the twentieth century, the Israeli State—unable to propagate an unanswered "official version" directly through control of mass media—has employed quasi-governmental institutions of high social credibility to establish the respectable orthodoxy on matters of great public controversy. Maoz takes that background, and the legal machinery that enables the socio-political strategy, for granted. In his account, what distinguishes the Arlosoroff commission is that it was producing official history's second draft. 2 Maoz criticizes this reexamination after a lapse of time as transgressive of all three boundaries he wishes to maintain: by politics against law and by politics and law against history. But it seems peculiar to suggest, as he does, that the attempt to respond to a work of scholarship by official inquiry somehow imperils freedom of academic research.	12
For Maoz, the Arlosoroff commission of inquiry intruded into an area that should be "left" to scholars. But the commission of inquiry, along with Maoz's own work, exists within a cultural setting in which, just as war is too important to be left to the generals, history is too important to be left to the historians. Israeli society, as it enters its third generation from independence, is engaged in its most comprehensive historical reexamination since statehood. The "post-Zionist" cultural climate has given birth to a powerful movement of historical revisionism, devoted to greater candor about the moral and ideological complexity of Israel's founding era. The return of the Labor Party to power, with its apparent acceptance of the creation of a Palestinian Republic, has invigorated the long-delayed rewriting of the secondary school history curriculum, which puts the new historical perspectives in the mainstream of standard social indoctrination. Matters even more fundamental to an understanding of Israeli history than the culpability of Stavsky and Rosenblatt are being taught to students in fundamentally new ways, or, indeed, are being directly acknowledged for the first time. As the government chooses what to include in the curriculum that all young Israelis learn, it is far more directly determining the relation of scholarship to the "official version" than the comparatively minor revision of the history of Revisionism that Menachem Begin engaged in with his empanelling of the Arlosoroff commission. But I doubt that Maoz would regard the remaking of the high-school history texts by political actors under legal authority as an interference with the work of the university scholars on whose energetic recent debates the revision is based. Indeed, Maoz, too, is part of this wide-ranging reconsideration of the role of historical myth making in Israeli culture and, specifically, in Israeli law. 3 His plea for the primacy of legal and historical scholarship over the political creation of the usable past is highly pertinent to the cultural moment; his superb account of where the dispute has been makes all the clearer the stakes involved.	13
Eben Moglen is professor of law and legal history at Columbia Law School. Notes       1. See Sharon v. Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984).
2. As readers of Maoz's footnotes will have noted, the standard pro-Revisionist historian of the affair, Hanoch Ben-Yeroham, republished his book, originally entitled "The Sacrifice," during the controversy leading to the appointment of the Arlosoroff commission. The title on republication was, significantly, "The Great Libel." See Asher Maoz, "Historical Adjudication: Courts of Law, Commissions of Inquiry, and 'Historical Truth,'" Law and History Review 18 (2000): 561-62, n. 6, 574-75, n. 48. An interesting and valuable essay remains to be written on the image of the blood libel, the inverted sacrifice, in the rhetoric of Israeli law.
3. I am particularly grateful, in this regard, to Daphna Barak-Erez for the opportunity to read her fascinating and as-yet-unpublished work on the construction of historical narratives in Israeli judicial opinions.

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