A REFLECTION ON THE VIEWS OF JULIUS STONE AND THE APPLICABILITY OF INTERNATIONAL LAW TO THE MIDDLE EAST

A REFLECTION ON THE VIEWS OF JULIUS
        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 the Middle East. This paper is neither an indictment of Stone or his substantive views,  nor a detailed exploration of the situation in the Middle 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 the Middle 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.

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 judgement 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

*      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. The author would like to thank Professor Stone’s family for their honesty and kindness. More was learnt of Professor Stone in meeting his family than could ever be achieved from exploring the vast and impressive body of publications Professor Stone left behind. Thank you also to R.A. for your support. All errors and oversights in this article are the author’s alone.

1      Julius Stone, Precedent and Law (1^st ed, Sydney: Butterworths, 1985) 105.

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independently.²  This, however, is not the purpose of this present study. This study seeks to take a step back and reflect upon the methodologyand 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 Counted³ 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.

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.

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‘leeways

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.

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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.

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 in Palestine 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.

Such  criticisms, however, lack  the  depth  required  to  appreciate Professor Stone’s work in this field. Admittedly, this paper was originallyinspired 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  the  Sydney  legal  establishment  and  at

8      Stone, above n 3, 1.

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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.

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.

This present study of Stone’s approach to international law in the context of the Middle 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

9      Leonie Star, Julius Stone an Intellectual Life (1^st 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 (1^st 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.

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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’.

In his 1981 book Israel and Palestine: Assault on the Law of Nations,¹⁴ Stone criticised 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. ‘Palestinianism’, 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

14    Julius Stone, Israel and Palestine: Assault on the Law of Nations (1^st ed, Baltimore:

Johns Hopkins University Press, 1981).

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 (1^st 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.

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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.

The approach of Professor Stone to the issue of self-determination
for Jews and Arabs in Palestine serves as an imperfect yet sufficient illustration in exploring the way in which Stone’s passion for Israel may 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 decolonization.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 decolonisation 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 Palestine over the
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

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             (1^st  ed,

Aldershot: Ashgate/Dartmouth, 2000) xi-xiii.

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 (1^st ed, Cambridge: Cambridge University Press, 1995).

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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

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 in Palestine 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  the  Jordan

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

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 (1^st 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

(1^st ed, London: Cass, 1974);   Yehoshua Porath, The Palestinian Arab National Movement Vol II 1929-1939 (1^st ed, London: Cass, 1977);  Muhammad Muslih, The Origins of Palestinian Nationalism (1^st ed, New York: Columbia University Press, 1988);  Rashid Khalidi, Palestinian Identity (1^st 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).

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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 in Palestine 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

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 utilized 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 the land of Palestine, for example, Palestinian embroidery incorporates many of the beautiful floral features of 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 characterisations of the Arab Orient see Edward
Said, Orientalism (2^nd ed, New York: Penguin Group, 1978).

27    Rashid Khalidi, Palestinian Identity (1^st ed, New York: Columbia University Press,

1997);   See Eric Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (1^st ed, New York: Cambridge University Press, 1990);  Ernest Gellner, Nations and Nationalism (1^st ed, Oxford: Blackwell, 1983);   Eric Hobsbawm and Terence Ranger (eds) The Invention of Tradition (1^st ed, Cambridge: Cambridge University Press, 1983);  Benedict Anderson, Imagined Communities: Reflections on the Rise and Spread of Nationalism (2^nd 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.